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The Constitutional Convention and Cable News

September 29, 2017 by Peg 1 Comment

The Constitutional Convention was held in Philadelphia in 1787. The delegates kept the proceedings secret to avoid, “licentious publications of their proceedings.” James Madison, the Father of the Constitution, stated that no Constitution would have ever been adopted if the debates had been public. Remarkably, for four months the secrecy was maintained.

Can you imagine the motives CNN, FOX and MSNBC would have projected upon George Washington, et. al.? No delegate would have escaped the allegations of lying or even treason to the Revolution.

But inside the Convention the fifty-five delegates, half of whom were lawyers, debated the most volatile issues of the day. Slavery, whether we would have one-man-one-vote or an electoral college, large states versus small states, foreign attachments, the establishment of courts, provision for national defense and many others. How did they do it?

Of course, I do not know. However, I am pretty sure no one was called a liar for stating his views and no one was ascribed venal motives. Most likely George Washington as the presiding officer of the Convention made sure each delegate had an opportunity to present his views and everyone else had an opportunity to respond.

Maybe it is because I am a judge and once practiced law but it seems likely to me the Constitutional Convention proceeded much as a court case. First an issue would be brought up, States’ Rights for example, then each delegate who wished to would state his position. Then, after extensive but civilized debate a vote would be taken.

This time honored approach to resolving controversies has served the legal system and America well for over two hundred years. First define the issues for resolution, a criminal trial for example, then allow each side to fully present their views without threats or name-calling.

I humbly suggest this same respectful approach will work in every conversation from government to individuals. Shouting down or using force to prevent those one disagrees with from speaking will not result in the kind of result we achieved in 1787.

As I was writing this column I received an email and an attachment from my friend Jerry Wade of New Harmony, Indiana who used to live in New York City and who still subscribes to the New York Times.

Jerry must have been really bored recently because he has obviously been following my column about our country’s increasingly uncivil discourse. Jerry sent me an article by Bret Stephens that appeared as an opinion editorial in The Times. It contained an excellent analysis of the current climate surrounding “Freedom of Speech”, a.k.a., “If you don’t agree with me, you must be crazy!”

I will share a small portion of Stephens’ article with you.

“We disagree about racial issues, bathroom policy, health care laws and, of course, the 45th president. We express our disagreements in radio and cable rants in ways that are increasingly virulent; street and campus protests that are increasingly violent; and personal conversations that are increasingly embittering.”

Stephens does suggest a solution:

“… [T]o disagree well you must first understand well. You have to read deeply, listen carefully, watch closely. You need to grant your adversary moral respect; give him the intellectual benefit of doubt; have sympathy for his motives and participate empathically with his line of reasoning. And you need to allow for the possibility that you might yet be persuaded of what he has to say.”

In other words, to have productive intellectual discourse we have to first concentrate on being civil.

 

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Filed Under: America, Democracy, Gavel Gamut, Judicial, Language, Law, News Media, Slavery Tagged With: civilized debate, CNN, Constitutional Convention, electoral college, establishment of courts, Father of the Constitution, fifty-five delegates, foreign attachments, FOX, George Washington, issue for resolution, James M. Redwine, James Madison, Jim Redwine, large state versus small state, lawyers, legal system, licentious publications, MSNBC, one-man-one-vote, Philadelphia, present views without threat or name-calling, provision for national defense, Revolution, slavery, States' Rights

E-Gads!

December 16, 2016 by Peg Leave a Comment

At a time when monks were reverently transcribing the Bible law clerks were laboriously writing down commandments issued by English monarchs. Often both were in Latin. Almost nobody but priests and lawyers could read Latin. The general public was told how it had sinned and why it was going to prison by these ecclesiastical and secular insiders.

As the ability to read became more common, laws were written in English. However, the general public still found the legal system mysterious. But while many may question the validity of my thesis, I postulate the major thrust of America’s legal system in this modern era has been toward making the law less arcane and more accessible for lay people as legal professionals are gradually relegated to the role of cloistered monks.

Today millions of citizens file and handle their own lawsuits. From divorces to property disputes and even murder trials people can and do represent themselves. Frequently the only role left for the legal profession is to try and repair the damage caused by an inarticulate lay resolution. As for judges, they are often relegated to simply signing their names to documents they had no role in crafting. And starting in 2017 in Posey County, Indiana, Electronic Filing will continue the march toward universal access to court records.

Soon, other than for laypersons, all court filings and record keeping will be done electronically. E-Filing is what it will be called. Documents will be scanned and, except for a few confidential categories, will be available via the Internet. One will no longer have to resort to third party reports of cases. Instead of gleaning our gossip and satiating our curiosity at the coffee shop or the tavern we can go right to the source day or night.

Now, after being embroiled in legal matters for almost half a century I might question the sanity of someone who finds Judge Judy and the like of any interest, but others may differ. If so, they will soon be able to emulate the Russian hackers without even needing to hack. I can envision millions of bleary-eyed voyeurs eschewing sleep to delve into the misfortunes of their fellow travelers electronically and a legal system where contact with an actual human being is as dead as Latin.

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Filed Under: America, Democracy, Gavel Gamut, Judicial, Law Tagged With: America's legal system, Bible, cloistered monks, E-Filing, Electronic Filing, Indiana, Internet, James M. Redwine, Jim Redwine, Latin, lawsuits, lawyers, lay people, laypersons, Posey County, priests, Russian hackers, voyeurs

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