James M. Redwine

legislative branch

Food Fight

by Leave a Comment

President Trump spoke to a joint session of Congress on Tuesday, March 04, 2025 for 99 minutes. His entrance to and exit from the podium each took about 15 minutes. The Cabinet, the Supreme Court and the Joint Chiefs of Staff were in attendance as were invited guests, members of the media and numerous interested observers. The proceedings were telecast to the world by several media outlets who commentated on the events. The Democratic Party’s selected responder, Senator Elissa Slotkin, spoke briefly after President Trump.

As the President entered the chamber numerous Democrat senators and house members turned their backs, displayed custom designed placards with anti-MAGA comments and did not applaud; virtually all Republican members applauded incessantly, cheered and arose to stand many times. On television, the effect was as if one-half of attendees were at the Super Bowl and the other half were at a funeral. The gathering looked like a combination of sycophants and official witnesses at an execution who alternated between tossing roses and brickbats.

My reaction was to be rhetorically reminded of food fights at summer camp. My guess is the only reason there was no general tossing of rotten eggs is due to the price. My overarching impression was: surely there is a better way for members of our national government to interact concerning issues. I will suggest a couple: The Executive Branch could remain in the West Wing while both houses of the Legislative Branch submit proposed bills for the President’s consideration. The Supreme Court could remain stoic unless called upon to resolve a Constitutional issue. The military could and should remain at each of their designated posts until and unless America needs defending as determined by Congress and the President.

There is no good reason to subject anyone to the burlesque show that taxpayers are paying trillions to endure. If Tuesday night was democracy in action, perhaps we need, at least, less action. I call for no more “Joint Sessions” of any kind. As our mothers made clear, “If you cannot play nice, you will not play”.

A Teetering Balance

by Leave a Comment

Our federal democracy is seen as having three equal branches that keep our democracy by equally asserting restraints on one another. The Legislative Branch plays its part by having 435 representatives elected for 2-year terms by citizens throughout the country along with 100 senators elected for 6-year terms. These just over 500 individuals have many functions but they really have only one power, providing or restricting funds to themselves and to the other two branches of government, the Executive and Judicial Branches.

 The Executive Branch has thousands of functionaries but its most powerful executive is the President who directly and indirectly heads the military and countless other divisions of that diverse branch. Each of those often nameless bureaucracies has untold, often nameless, functionaries whose functions may hold the key to whether our government functions.

The Judicial Branch is easy to generally designate but much more difficult for the populace and the other two branches to corral as the Judicial Branch has generally defined itself since Marbury v. Madison in 1803. In fact, the Judicial Branch jealously and vigorously spends much of its time struggling to make sure the other two branches do not infringe on its powers, the chief of which is to define what the law allows the other two branches to do.

This theory of a three equal and separate foundation of our democracy works well as long as the powers of each branch remain truly separate and fairly balanced and each branch is composed of greatly dispersed functionaries. It is not a novel observation that our great democracy has remained democratic, mostly, because it remains diverse, dispersed and divided. When power becomes concentrated in a particular individual or individuals or branch, democracy suffers and internecine competitions may arise. Such theoretical and rhetorical battles can, as our Civil War proved, break out into real battles as one or two or even all three of the branches seek dominance.

Currently, we have members of each branch asserting efforts to imprint upon our whole country the vision of a few executives, followed by a few judges, both entities being subject to the status of financial hostages from a powerful few in the Legislative Branch. Now, some may analyze our current imbroglio as evidence our three-branch theory is simply working itself out in practice. That could be true. However, I hypothesize our Founding Fathers may have neglected the Fourth Branch of our social/governmental structure, the citizenry. Normally we have an electorate that, while unhappy perhaps, still finds a way to “soldier on”.

Our current social intercourse pits about one-half of America against the other half, sort of like the times of theDred Scott v. Sandford case of 1857 that led to the Civil War. Much as when a large portion of the United States agreed with the U.S. Supreme Court that African Americans were not citizens while another large portion disagreed. Many Americans today either agree or disagree with Birthright Citizenship and several other issues. One President and at least one federal judge come down on opposite sides of this citizenship issue and probably several others.

Such matters being seen diametrically opposite by each of two of our branches and both branches awaiting input from the Legislative and more importantly the public, creates a situation where our national soul may be at war with itself. What is called for is much more equal and reasonable input from each branch, especially that Fourth Branch, the populace.

The Scarlet Bills

by Leave a Comment

Congress is demanding a code of ethics for the U.S. Supreme Court. So is the national news media. Congress and the media may not see eye to eye on much but they do agree that the Judicial Branch should be controlled by the Legislative Branch. It appears the ideology of Israel’s Prime Minister Benjamin Netanyahu has infiltrated the American Garden of Eden with a poisoned pome and Congress is champing to chomp.

Congress teaching ethics to the Supreme Court is like Helen of Troy teaching matrimonial loyalty to Hamlet’s mother. If Congress were medical advice providers we might say, “First heal yourselves.” Be that as it may, there is little doubt the Supreme Court could use some ethical lessons. However, as a separate and equal branch of our three-branch democratic republic, I prefer the courts remain independent even if they sometimes teeter on a fulcrum between questionable personal behavior and unquestioned legerdemain. Such cases as Dred Scott in which the one-time slave holder, Chief Justice Roger Taney who did not recuse himself, decided the Negro Dred Scott had no rights that America’s white society was bound by law to recognize come to mind.

No, Congress should not be looking for the log in the eyes of the Supreme Court but should be initiating a Constitutional amendment that would ensure America’s citizens, not a few highly partisan politicians, would have the choice as to who and for what term judges would serve. I do not know, Gentle Reader, if you have read my numerous columns on electing judges to one fairly short term. I only know for sure that Peg read them because I refused to comply with her many varied domestic demands until she did. However, if by some chance you did read them you know my preference is a truly democratic judicial selection process.

Non-partisan elections of competing, qualified judicial candidates for one 10-year term and life-time pensions are my suggestion. Advice on ethics for anyone from our Congress rings hollow.

Our Two Branch Democracy

by Leave a Comment

Photo by Peg Redwine

Pure democratic government involves direct selection of leaders by those who are led. The United States is two thirds of a democracy. The Executive Branch is elected by popular vote every four years. The House of Representatives of the Legislative Branch is elected by popular vote every two years. The Senatorial part of the Legislative Branch is elected by popular vote in staggered parts over six years. The Executive and Legislative Branches then select all members of the federal judiciary. The American public has no direct input in the selection of the Judicial Branch.

Federal judges receive life-time appointments subject only to their own choice or, extremely rarely, impeachment. Supreme Court Justice Samuel Chase (in 1805) was the only U.S. Supreme Court justice to have articles of impeachment brought against him; he was acquitted and continued on the court. Fifteen lower federal court judges have been impeached in American history. Eight were convicted and removed from the court. Four were acquitted and three resigned. We currently have about 1,800 federal judges including 9 Supreme Court justices.

The Judicial Branch of our government is in some ways the most powerful and in every way the least democratic branch. While we have only one President, the President may serve a maximum of eight years and must be elected by popular vote. Of course, the Electoral College is the mechanism we use, but popular vote by the electorate is still the gold standard. That is, we have the right to help choose our Executives. Not so our federal judges.

In like manner, we have the right to help choose our state’s Congress people and our state’s two senators. And while there are no term limits for the Legislative Branch, if we choose, we can vote them out. Not so our federal judges.

The historical reasons for how our ideal form of a Three Equal Branch democracy became two equal branches with the Judicial Branch being outside the control of the citizens are complex and, in many ways, convoluted. For the purposes of this column, I ask for a suspension of your legitimate questions about the etiology of how we got to our current non-democratic system. I respectfully recommend an examination of the most famous and momentous U.S. Supreme Court case, Marbury v. Madison, 5 U.S. (1cranch) 137 (1803). It was the original wrongly decided case that the highly political Chief Justice John Marshall used to outfox his bitter political opponent, President Thomas Jefferson, and usurp out of whole cloth for the Supreme Court the ultimate authority to determine if an act or law was constitutional. That was the beginning of how the federal courts have placed themselves beyond the reach of the citizens and slowly but inexorably created a government that, I submit, James Madison and the other Founders would not recognize. The ideal of a living democracy based on direct citizen involvement in the selection of each of three separate and equal branches of self-government has evolved into bicameral branches of Executives and Legislators who then choose the Judicial Branch.

Most experts now believe it would take an amendment to Article III of our Constitution to return to the purity of the Founders’ vision. If so, that painful and arduous process would be preferable to the alternatives.

A Delicate Balance

by Leave a Comment

Five-foot, four inch tall “Little Jimmy”, James Madison, Jr. (1751-1836), applied his gigantic intellect to melding the Natural Law theory of John Locke (1632-1704) and the Separation of Powers theory of Charles Montesquieu (1689-1755) into the Constitution of the United States. Locke and Montesquieu postulated that all things being equal no person should harm another in his/her life, liberty, health or possessions. They, along with Madison, also believed that every person who has power is apt to abuse it. Therefore, governments are necessary to keep individual power in check but the power of government must also be kept in check.

According to Edgar Bodenheimer (1908-1991) in his treatise on jurisprudence:

“The basic idea of the American Declaration of Independence as well as the Bill of Rights is the recognition of the natural and inalienable rights of life, liberty, and property, as conceived by Locke, while the main body of the United States Constitution is a practical application of Montesquieu’s doctrine of separation of powers. The connection between these two doctrines in the American government is made by the theory of judicial review. The United States Supreme Court has held that, in order to guarantee the enforcement of natural rights, the power to make laws must be separated not only from the power to execute laws, but also from the power to review laws with their regard to their conformity with higher principles, as recognized by the United States Constitution. Thus, in the United States the courts, and especially the United States Supreme Court, have assumed guardianship over natural law.”

See Bodenheimer, Jurisprudence at p. 146

This separation of powers has served America well since 1789. As is to be expected in matters as complex as government and politics the powers of the three branches have each waxed and waned from time to time. However, we have always managed to keep our democracy by remaining moored to the rock upon which it was founded. Just as our founders recognized that individuals and governments will abuse power unless checked, they also recognized the danger and guarded against any of the three branches having unfettered power. The wisdom of Madison, et. al., is once again being tested. Has the Executive Branch gone outside its traces and incited violence against the Legislative Branch? Has the Legislative Branch blurred the boundaries that should keep all three branches separate by both charging an impeachment and then filling the role of the Judicial Branch by having one of its own members serve as the presiding officer at the trial? And, has the Judicial Branch been marginalized because the Chief Justice of the Supreme Court will not be serving as the neutral and detached trial judge as designed by our Founders.

For as Bodenheimer points out, “Any abuse of its power by the legislature should be curbed by the Judiciary Branch of the government, to which falls the duty of declaring void all statutes which are repugnant to the Constitution.” See Bodenheimer, Jurisprudence, at page 148. Perhaps Chief Justice John Roberts and the rest of the Supreme Court are anticipating being confronted with such an issue later.

The crimes that were committed on January 06, 2021 are being investigated and several alleged perpetrators have already been identified and charged. Numerous others will and should be. America’s normal criminal justice system can fairly and efficiently provide due process to those involved. If Donald Trump committed any state or federal crimes either on or before January 06, 2021 he can be prosecuted separately from the impeachment. And if a pardon is considered it would cover only federal offenses.

In our current test of our charter’s application, the Legislative Branch has filed an article impeaching the head of the Executive Branch, former President Donald Trump. It is alleged he engaged in:

“[H]igh crimes and Misdemeanors by inciting violence against the Government of the United States” on January 06, 2021 and for in the months preceding January 06, 2021 repeatedly issuing false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the America people or certified by State or Federal officials.

The Article of Impeachment was returned against President Donald Trump on January 13, 2021 while he was still the acting President. On January 25, 2021 after Donald Trump’s term had ended, the Article of Impeachment was sent to the Senate for trial. The Senate has set the trial to begin February 09, 2021 with Senator Patrick Leahy, Democrat from Vermont, to preside and the senators to serve as jurors.

Article I, Section Three, of the U.S. Constitution provides that in the trial of the President of the United States the Chief Justice of the Supreme Court shall preside. For reasons not yet fully explained, Chief Justice John Roberts will not be involved, so only two of our three equal branches of government will be embroiled in this matter of grave national concern. It is suggested that this is because Donald Trump is no longer President. However, that does not take into consideration the bed rock reason why the Founders made it mandatory for the Judicial Branch to be involved.

The impact of this omission upon public confidence in the fairness of the process is worthy of consideration. After all, it is not Donald Trump’s fate that is most important, but the country’s faith in the process that determines that fate. However, this faith might be shaken by a trial where the role of a “neutral and detached magistrate” is filled by a member of the body that both files and prosecutes the charge. Symbolism is important and a level scales of justice is one of our nation’s most potent and delicately balanced symbols.

Some News Fit To Print

by Leave a Comment

Adolf Ochs (1858-1935) pinned the motto of the New York Times newspaper: “All the News Fit to Print” in 1897. It remains on the paper’s front page today. Mottoes sometimes are more hope than substance.

In 1965, as the Viet Nam War was gearing up and 18 year old men could be drafted but could not vote, Barry McGuire (born 1935) sang ♫The Eve of Destruction♫. The lyrics included the following phrases:

“The eastern world, it is expoldin’
Violence flarin’, bullets loadin’
You’re old enough to kill but not for votin’
You don’t believe in war, but what’s that gun you’re totin’?
….
The poundin’ of the drums, the pride and disgrace
You can bury your dead but don’t leave a trace
Hate your next door neighbor, but don’t forget to say grace.”

About twenty years later in 1983 Anne Murray (born June 20, 1945) sang the song ♫A Little Good News Today♫ that included:

“I rolled out this morning
Kids had the morning news show on
…
Some senator was squawkin’ ‘bout the bad economy
It’s gonna get worse you see, we need a change in policy
…
Just once how I’d like to see the headline say
‘Not much to print today, can’t find nothing bad to say’
…
We sure could use a little good news today.”

So, Gentle Reader, I submit the following retreat from the edge of doom and a little good news for your April First consideration.

It was announced today that Sean Hannity has been hired to replace Wolf Blitzer at CNN and Joe Scarborough will be joining FOX News.

At his debut on CNN Sean Hannity reported that Hillary Clinton and Donald Trump had met with Mitch McConnell and Nancy Pelosi at Camp David where they decided to apply the national defense budget to universal health care and free college tuition for all.

The budgets for the CIA and FBI will be redirected to environmental concerns and repair of the nation’s infrastructure. McConnell was assured by Chuck Schumer there would be unanimous support for these proposals in the Senate. And in the House, Minority Leader Kevin McCarthy heaped praise on both Pelosi and Clinton as he pledged his ardent support for both.

At a conference of media anchors held just outside the gates of Camp David it was announced by Washington Post’s editor Martin Baron that the national print and electronic media were impressed with the honesty, integrity and goodwill of the Executive and Legislative branches. Baron even mentioned the anticipated wisdom of the Supreme Court that is expected to refuse to grant any delays in the implementation of the stated goals of fair and equal treatment for all Americans.

Well, Gentle Reader, that’s about all the Good News I can report. It appears the country is just brimming with good works and goodwill.