James M. Redwine

King George III

A New World Resolution

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A new year is rapidly approaching. Hope for a better world is evidenced by universal blame placing, always onto someone else. Perhaps Jeffrey Epstein, or Donald Trump or Lane Kiffin or the idiot driving slowly in the passing lane. Or as Jimmy Buffett finally admitted in Margaritaville, “It was his own fault”.

One thing each of us believes is it is never our fault. Yet, in a republic, the United States for example, it is the fault of all citizens since we either choose or allow to remain in office our representatives. Secretary of War Pete Hegseth may have ordered Admiral Frank Bradley to carry out Commander in Chief Donald Trump’s order to kill the people on the alleged drug boat on September 02, 2025, but in America the President represents all of us. In the court of world opinion, each American violated our Constitution’s Bill of Rights and Due Process clauses as contained within the New World Resolutions of the Declaration of Independence and our Constitution.

Our Founders were well aware of the irony contained within those famous New World Resolutions, “We hold these truths to be self-evident that all men are created equal”. They knew that thousands of years of human history belied such a reality. What real truth they knew to be self-evident was that power does not corrupt humans, it enables them to be corrupt. The words were aspirational, not factual. The Constitution of the United States designed a framework for a system of government in which the natural inclination of humans to abuse power is sublimated to the competing powers of the majority who would abide by Due Process of Law.

If the eighty-one people we have killed in the Venezuelan boats were drug runners, there are well established procedures for determining those facts and for dealing with each situation. The U.S.A. has the most powerful military on earth. Even if the Venezuelan government was sponsoring those boats, its military is impotent against ours.

Our aircraft carriers, submarines, destroyers and aircraft can and do monitor every craft that comes within our United States territorial waters. We have the ability and authority to force any such drug boat or fishing boat, to stand down and be searched without danger to American personnel or equipment.

We could safely and thoroughly search such boats and vet their sailors as to drugs or other illegal contents. If such criminal intent against America were to be evidenced, the occupants could be arrested and taken before a court in the United States or a world authorized legal body. Any drugs could be confiscated, used as evidence and later destroyed and the drug runners imprisoned.

Such a procedure is what our Founders would have demanded from King George III. It is called Due Process. As the folk singer Phil Ochs sang in his song, Is There Anybody Here:

♫Is there anybody here
Who thinks that following the orders takes away the blame?
Is there anybody here
Who wouldn’t mind to murder by another name?♫

We Americans who claim to be a light to the world should shout STOP! when our representatives justify killing others without affording them the rights we demand for ourselves. America was born in 1776 and should not lose its aspirational soul after only 249 years. For as Phil Ochs also said in his song, ♫This country is too young to die♫. America today can re-pledge our “Lives, our Fortunes and our Sacred Honor” to the hopes our Founders knew had not yet been made possible but that they and we should resolve to make reality. Due process should be our talisman, not just our hope.

 

Whose Birthday Is It?

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As I write this column the Weather App on my cell phone says the actual temperature is 98 degrees Fahrenheit with a heat index making it feel like 108 degrees. There is no breeze but that’s okay. If there were, it would simply baste our skin as though we were a slow crusting brisket. I ask you, Gentle Reader, “Why July Fourth?” Does not each of the twelve months have a Fourth? For example, the merry month of May or the crisp, invigorating month of October each has a perfectly good Fourth. And neither has a heat index of 108 degrees! Were our Founding Fathers so fond of their wool frock coats they were impervious to July’s guarantee of a reprise of Joan of Arc’s demise? What was Thomas Jefferson thinking as his Sons of Liberty compatriots dumped the tea into Boston’s Harbor on December 16, 1773? Why not fire off his written volleys against King George III then, when it was cool?

 Our rhetorical path today is an examination of the date of our country’s birthday and how we might celebrate it each year without getting suntan lotion and sweaty grit mixed into our barbeque. To me the solution is as simple as the whole country ignoring the gamesmanship of celebrating George Washington’s and Abraham Lincoln’s birthdays not on February 22 and February 12 as we did all of my school years. Why, with the stroke of a Congressional pen, voila, we now have President’s Day every year on the third Monday in February! I say, hooray! Now how about the Fourth of …?

 Many people throughout the world have celebrated the presumed birthday of Jesus. Yet, no one truly knows for sure when Jesus was born. We do know over the past 2,000 years more than one date has been chosen for Christ’s date of birth. For example, many people in Europe celebrate Christmas on January 07 because they follow the Julian calendar set by Julius Caesar in 46 B.C.

However, in 1582 Pope Gregory developed his calendar. The Julian Calendar and the Gregorian Calendar each gave a different day for Christmas. One was on the 24th or 25th of December and the other gave January 07. Does it matter? Apparently not. I say if the world can pick an arbitrary date for the birth of Jesus, we can re-set the birth of America to a friendlier clime. I respectfully suggest October 04 every year starting in 2025.

On a personal topic, one of my earlier Gavel Gamut columns drew the thoughtful attention of a reader, Mr. Jerry Butterbaugh. Mr. Butterbaugh, thank you for taking the time to read the column and thank you for your interesting perspective. You respectfully presented a different point of view without casting aspersions. Would that our beloved country as a whole could discuss our many serious issues in the same manner. Your points were clear and helpful. I appreciate them.

Also, since my wife Peg is about the only reader I can consistently rely upon, and that only because she has to type and post them, your response was most welcome.

Do Not Cross the Potomac River

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At the Rubicon

In 49 BC the Senate in the Republic of Rome ordered Gaius Julius Caesar to not bring his army across the Rubicon River into the city of Rome. Caesar said, “Let the die be cast”; that is, I’ll take my chances. He did, Rome as a Republic collapsed into civil war and instead of a representative government the Roman people got a dictator. Five years later, on the Ides of March, Caesar was deposed by force.

The people who founded the United States of America came from a tradition of great fear of military power over civilians. In fact, in our Declaration of Independence one of the main complaints against King George III was that, “He has affected to render the military independent of and superior to the civil power.”

This great fear of military control over the civilian populace of America was guarded against in our Constitution. Article I, section 8 endows Congress with the power and authority to declare war, and to raise armies and militias to suppress insurrections. Article II, section 2 establishes that the democratically elected President shall be in control of the armed forces as the Commander-in-Chief.

In his exhaustive and exhausting treatise, The Framer’s Coup, The Making of the United States Constitution, Professor Michael J. Klarman points out the vital importance to our Founders that “[I]n all cases, the military should be under strict subordination to, and governed by, the civil power.” See p. 330.

We Americans profess pride in and support of our military as long as we are assured our military remembers its place. That system has worked pretty well and we are likely to maintain it in spite of political pressure being brought upon the generals to undermine their Commander-in-Chief. As I recall from my service days, I did not always recognize as wise what my military superiors thought was wisdom. Joseph Heller in his prescient novel, Catch-22, had a pretty firm grip on the banality of much of the military. On the hand, our politicians sometimes also fall a little short of a full deck. Still, at least we have the opportunity to have some say in who our civilian leaders will be and we can fire them.

Therefore, for me, I’ll chose to bob and weave with the occasional civilian loser versus a palace military coup. Back off oh ’ye purveyors of a Banana Republic. As Scarlett O’Hara said, “Tomorrow’s another day” and as Annie said, “Tomorrow is only a day away.” I can wait. Elections, yes, coups, no.

Another look at the Rubicon

The Wheat From The Chaff

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The Sixth Amendment to the U.S. Constitution provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been Committed ….”

Our Declaration of Independence raised these issues and complained of King George III:

“For depriving us in many cases, of the benefits of trial by Jury; (and) For transporting us beyond Seas to be tried for pretended offenses.”

The Book of Matthew uses the example of separating edible wheat from its husks as an analogy about dividing the good from the bad. In our legal system we almost always assign this task to judges with probably less than 3% of criminal cases being determined by a jury. The recent case involving the death of George Floyd, Jr. and the conviction of Derek Chauvin is one of those extremely rare jury events. However, this is not a column about that media saturated matter that took place in Hennepin County, Minnesota. I do predict that two of the issues raised by Chauvin when he appeals the guilty verdicts will be whether trial judge Peter Cahill should have granted Chauvin’s motions to change the venue of the trial and to sequester the jury. Those specific assigned errors will fall to the Minnesota state appellate judges and maybe work their way over to the federal judiciary before the saga crawls to an unsatisfactory halt. Shakespeare was right about the Law’s Delay. George Floyd, Jr’s. death was May 25, 2020.

What this week’s column is about is the American legal system’s mental gymnastics involving the relative imbalance between trial judges’ assumed ability to be objective versus that of jurors. Perhaps a few specific examples might help define the dichotomy. During my forty years as a trial judge in a small, rural county with only two judges I was faced countless times with having to process cases about which I had personal knowledge. For example, a crime might be reported then the police or sheriff’s department would present me with a sworn affidavit in support of a request to arrest someone and/or to search their home. A great amount of detail about the alleged crime and the suspect would be laid out before me. Then later I would sit as judge on the case.

Another fairly frequent circumstance might be I would know both the named victim and the defendant. I would sit on the case. In fact, I have remained as the deciding judge on countless cases at the request of victims, defendants and their legal representatives because they all wanted the cases resolved without delay and excessive cost and because everyone, including me, assumed I could separate the wheat from the chaff and both follow the law and be fair and objective. If I could do so, so can jurors. Black robes are a symbol not an inoculation against biased decision making. Facts are what matter, not irrelevancies unconnected to the case at hand.

There are cases where judges should not serve and where the pool from which jurors are selected should be changed. But usually judges and other people have the ability to take on the sacred mantle of administering justice whether they wear a black robe or not. Our legal system should afford to the citizenry that pays for it the same respect we assume for judges who are paid by it.

The delay, expense and great inconvenience caused by changes of venue and juror sequestration should be a last resort. This was true when we gained our independence and communication was untimely via printing presses and quill pens. How much rarer should such dire remedies be when finding a venue and jurors who have no knowledge of a case would require a trial beyond Mars?

Independence Day

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Lexington Minuteman
Lexington Battle Green, MA

The Fourth of July is called Independence Day with good reason. Our Founders were willing to die for the right to control their own lives. They were not seeking war with the most powerful nation on Earth in 1776. They were not attempting to dictate to King George III how the English should behave. They sought only free will for America to determine its own course. In these troubled times we are now navigating, perhaps a look back to America’s early struggles might be helpful.

We may wish we could ask George Washington or James Madison for advice. But the best we can do is read about past heroes’ courage and sacrifice and try to learn lessons that will help us during our own battles.

For example, one of my heroines is Frances (Mad Fanny) Wright, that fighter for women’s rights, Black rights and freedom from religion who spoke in New Harmony, Indiana on July 04, 1828. Oh, how much we could learn if we could speak with her now. However, we do know she dedicated her life and fortune to eliminating slavery. Had she lived only nine more years she would have experienced the start of the Great Struggle that ended a whole race of Americans’ loss of control over their lives.

Control, isn’t that what matters most to all of us? The visceral need for the freedom to make our own choices is why on that day we now call Patriots Day, April 19, 1775, at Lexington and Concord those suppressed colonists “Fired the shots heard ’round the world”. And in our current political climate when Americans get embroiled in political discussions it sometimes feels as if both sides have muskets at the ready.

When I find myself surrounded by the competing political mini balls, I try to remember this is nothing new. Over the two or three hundred thousand years we Homo sapiens have been around, after air, water, food, shelter and procreation we seem to have two more basic needs: the control of our own lives; and the strong desire to control the thoughts and behavior of others. These two related but directly oppositional impulses apply to groups of people and nations as well. You know, we will each defend to the death the right of our political adversaries to agree with us. But conversations can rapidly turn to confrontation if someone comes down on what we believe is the wrong side of such issues as religion, race, global warming, immigration, war and peace, who should or should not be President of the United States and a thousand other subjects.

The right to control our own lives makes us smile. The desire to control other peoples’ lives can lead to such things as vitriolic statements and sometimes even vicious interchanges in our public and interpersonal interactions. Sometimes today’s discussions about control may center on sexual assault and the “Me Too Movement” or hate crimes and “Black Lives Matter”.

Rape is a terrible crime not because of forced sexual contact, billions of humans have had sexual relations. No, rape is a terrible crime because of the victims’ loss of their right to decide for themselves whether and with whom to have sex. The fear, terror, anger and humiliation caused by losing total control of one’s body is incalculable. It is in itself a life sentence that can lead to permanent bitterness toward and distrust of our legal system much as lynchings can result in an entire race of people living with constant concern about their freedom.

Lynchings, such as those that were committed on the Posey County, Indiana courthouse lawn on October 12, 1878, are a collective denial of another’s right to control their own destiny. And it is not just the victims who lose, but even those who deny justice to others may reap the whirlwinds of retaliation and political correctness.

Wars of aggression, not constitutionally authorized wars for national defense, are our country’s intentional denial of another country’s or people’s right to independently determine their own destiny. One of the main causes of our country’s post-WWII denials of the right of other countries to control their own lives are wars instigated by independent executive action without congressional authorization.

We can each quickly cite evidence of such wars based on false premises and rash executive action. President Lyndon Johnson used the shaky premise of the Tonkin Gulf Resolution to get us hopelessly embroiled in Vietnam. President George W. Bush relied on false intelligence reports that Iraq had weapons of mass destruction and was involved in 9/11. President Bush then precipitously led us into what appears to be an endless and pointless war in the Middle East.  As Pete Seeger’s song “Where Have All The Flowers Gone?” asks us, “When will we ever learn?, when will we ever learn?”

Our Founders’ wisdom of placing the authority to wage war in congress is that such a procedure keeps all of our citizens more closely involved in these grave decisions. And, it requires much more careful deliberation when congress is involved. Also, when we eliminated the military draft, we turned from a citizen minute man type military to a professional and less ecumenical type force. To make the tragic choice to go to war all Americans should feel the direct cost. It is too easy to hire others to impose our will on the powerless. With a professional standing military our armed forces never stand down. And the temptation for any of our presidents to play with these awesome powers as if they were toy soldiers is too intoxicating for most to resist. Of course, the draft is one of the ultimate impositions of loss of control. Our country should only use it when our national survival is truly at issue. And then it should include all able-bodied adult citizens. Not everyone needs to serve on the front lines but everyone can serve somehow.

One of the good things we received from one of our British cousins were John Locke’s Enlightenment philosophies as highlighted by the doctrine of separation of governmental powers. Our independence as a nation has survived great trauma due in large part to our three separate and equal political powers: Executive; Legislative; and, Judicial. We forget this at our peril. Control of our lives is an inherent need for individuals and nations and, if lost, can lead to long-term bad effects for both the invaders and the invaded. Freedom of choice is essential to our personal and national well-being. Our Founders enshrined that opportunity for us in our Constitution and that is what we celebrate on Independence Day as we struggle to afford that right to all of our citizens.

 

The American Volksgeist

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During August and September this year, as for several years before, the National Judicial College will be presenting Internet courses to judges from across America. Other members of the NJC faculty and I will discuss with student judges via computer and telephone how to bring more just results in our courts.

The faculty is comprised of volunteer judges and staff in Nevada, Colorado, Indiana, Mississippi and Tennessee. My experience over several years of judging and continuing judicial education by both Internet and brick and mortar classes has led me to the conclusion judges should not concentrate on techniques but rather systems of thought, i.e., legal theory. “How to” knowledge is helpful but “why to” understanding is vital.

Friedrich Karl von Savigny (1779 – 1861) was a German legal philosopher who believed a nation’s legal system arises from the volksgeist or national spirit of a people, that is, law is determined by the unique character of a nation. Or, as put by the American legal philosopher Oliver Wendell Holmes, Jr. (1841 – 1935):

“The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

Common Law is a term used to mean judge made law, law developed through the courts, not the legislature or an executive such as a king.

America’s common law in the years before the Revolution of 1776 arose as an effort by American judges, lawyers and juries to curb the abuses of King George, III, and the British Parliament. The 1735 case of John Peter Zenger (1697 – 1746), a New York printer who published articles about the king and parliament, illustrates the national spirit of the Colonies. Zenger was charged by the Crown with seditious libel but a jury refused to find him guilty because what he published was true.

This American spirit of rebellion permeated the Declaration of Independence and is enshrined in our Constitution that was designed to keep government power in check and protect individual citizens.

Our volksgeist is our sense of a distrust of centralized power and the preservation of individual civil rights. America and her judges need constant reminders of where we came from and who we are. That’s what I plan to both study and teach.