James M. Redwine

morality

Natural Law, Morality and Democracy

by Leave a Comment

Our homo sapiens species has been around about two to three hundred thousand years. We probably began biologically in Africa with what we assert is our Western culture becoming ascendant in southern Europe about twenty-five hundred years ago. The Greeks and the Romans laid the foundation for our civilization and we still rely upon their theories of what a civilized society should be, especially in regard to morality and law.

History is replete with rising and falling societies that have gone from collectively agreed upon legal systems to usurpation of power by elites that caused the society to fall upon its own sword. While there are many reasons why each “eternal” nation collapsed, as Plato posited in his Republic, a society rules by consensus then by a ruling party in its own interests. The rulers define the laws based upon what the autocrats desire, then define anyone who breaks such laws a wrongdoer. This is the final stage of a great civilization. Law moves from a consensus among a majority of the citizens as to what is right and good to a decree from the powerful based upon what they want.

Thousands of years ago primitive societies found they could live better lives among themselves and with their neighbors if they cooperated on such matters as the sharing of natural resources and respect for the person and property of others. This was the beginning of morality; and still moral behavior by individuals and nations comes down to treating others as we wish to be treated. Gradually, such nascent civilizations came to realize that as Aristotle said, legal systems (laws) were necessary because people could not restrain desire for power. If people were perfect, laws would not be needed but, as we are not, to ensure justice we must have law. And if the laws remain just, a society can survive life’s inevitable chaos.

Such philosophers as Socrates, Plato and Aristotle believed the world was grounded in Natural Law. Law just existed as did gods. Mankind only needed to divine what the gods required and apply such rules to humanity. If mankind ignored this immutable Natural Law, then chaos would rein. This concept of the eternal existence of Natural Law was at the core of most of the great legal theories from the ancient Greeks up to our Founding Fathers and is still prevalent today in many countries. In America, we separated law from superstition and left it to individuals to believe or not. This separation of theocracy from democracy was a new concept 250 years ago and has helped preserve our nation through many moral crises such as the Civil War and political in-fighting today. The First Ten Amendments of our Constitution are the rock by which we thrive.

Experience has proven that relying on a fear of a god or gods to enforce laws fails in the face of human nature. We have found that it is human law that must set limits on the natural tendency of mankind to abuse power. Over the last twenty-five hundred years or so we have sought systems of law that restrain autocratic impulses and protect individual rights. The most successful of such systems so far has been the Separation of Powers legal system as set forth in the United States Constitution.

Our Constitution was not based on Natural Law but upon the theories of such visionaries as Baron de Montesquieu. (1689-1755), John Locke (1632-1704), and especially, James Madison (1751-1836) and James Wilson (1742-1798). Wilson not only was a contributing author to our Constitution but also sat on our first United States Supreme Court. These legal philosophers recognized the major problem of instituting a lasting democratic legal system was preventing autocrats from usurping powers that properly belong to the citizens.

The division of executive power and legislative power as a restraint on one another was not sufficient. The inclusion of a third branch of government, the judiciary, was the piece of the puzzle that our Founders devised to answer this fatal flaw that had occurred in other legal systems which had failed, because as power corrupted the leaders, democracy collapsed into tyranny. In America today, our Legislative Branch has generally abandoned its role of restraining our out-of-control Executive Branch and our Judicial Branch has sometimes not asserted proper restraints on both of the other branches.

Is America in a vulnerable position democratically today? Probably not, as yet. However, when the Executive repeatedly takes the country to war in spite of virtually every poll indicating a significant majority of the electorate objects, and the Legislative Branch is supine in its duties concerning the power to declare war and the Judiciary fiddles away, the will of the people is frustrated and democracy might teeter. This could be one of those times as Greece, Rome and numerous other democracies discovered when it is critical that all three branches not only stay in their lane but gird their Constitutional loins up about them and courageously execute their own Constitutionally defined responsibilities.

You can also follow us on Facebook at “Jim Peg Redwine” or Substack “@gavelgamut”

November Re-Visited

by Leave a Comment

As first light appeared on the snow covered ground the morning of November 27, 1868, Cheyenne Chief Black Kettle emerged from his tepee as a woman came running across a stream of the Washita River screaming, “Soldiers, soldiers!” Black Kettle must have thought he was re-living the morning of November 29, 1864 on the banks of Sand Creek, Colorado Territory. That is when and where Colonel John Chivington and seven hundred troops of the U.S. Cavalry massacred a large number of Black Kettle’s tribe.

Black Kettle had settled his tribe at Sand Creek at the suggestion of U.S. Cavalry Major Scott Anthony based on the Ft. Wise Treaty of 1861 signed three years earlier. Major Anthony gave Black Kettle a white flag of truce to display to any soldiers who might come upon Black Kettle’s tribe and mistake its members as hostiles. Chivington ignored it. Only three years after the Sand Creek betrayal, Black Kettle and the United States at the Council of Medicine Lodge, Kansas reached another peace treaty ensuring safety and hunting rights for the Cheyenne along the Washita River Valley in Indian Territory (Oklahoma).

During the Sand Creek incident Black Kettle’s wife was shot several times but survived. His wife and he were not so fortunate at The Washita. Lieutenant Colonel George A. Custer and members of the U.S. Cavalry were acting on orders from General Philip H. Sheridan to: “Kill or hang every warrior. Bring back all women and children.” Both Black Kettle and his wife, Medicine Woman, were shot dead while trying to flee.

Oklahoma history professor Arrell Morgan Gibson (1921-1987) in his widely used textbook, The History of Oklahoma, first published in 1972, at page 94 describes The Washita incident:

“During 1868 the tribes of western Indian Territory had been slow in settling on their reservations assigned by the Medicine Lodge treaties. Some warrior bands had raided settlements on the border. To punish these Indians, the Seventh Cavalry, led by George Armstrong Custer, rode out of Fort Supply (in what is now western Oklahoma) in late November 1868. At daybreak on November 27, Custer and his troops reached the Washita River and made a surprise attack at Black Kettle’s Cheyenne camp. The Seventh Cavalry killed more than one hundred warriors and took fifty women and children as prisoners. The soldiers burned the village and captured a large herd of horses. Chief Black Kettle was among the dead. The Battle of the Washita was more of a massacre than a battle.”

There are other descriptions of The Washita incident. One of the versions most sympathetic to the Indians is contained within Oklahoma historian Charles J. Brill’s (1888-1956) account, Custer, Black Kettle and the Fight on the Washita, that was first published in 1938. Brill reported that Custer’s plan was to use his five-to-one advantage over the Cheyenne and surround the sleeping Indians:

“Custer was not long determining his plan of attack. This time (unlike Sand Creek) there would be no opportunity for his intended victims to escape by flight. Before morning he could surround the village. At a given signal the encircling battle line would converge on the unsuspecting Indians, who then would be completely at his mercy. It would be a wipe-out.”

See p. 148

And there are those who observed The Washita incident in more generic terms. In his The Battle of the Washita historian and professor Stan Hoig (1924-2009) says of Sand Creek and The Washita:

“That both events were massacres-which utilized the element of complete surprise against a people who did not consider themselves to be at war in which troops who had orders to kill anyone and everyone before them made no attempt to allow surrender-is hardly deniable by any accepted use of the word ‘massacre’.”

See p. xiii.

Professor Hoig told the story of The Washita as a clash between cultures:

“At stake were the will and conscience of the United States in resolving the great dilemma of the American Indian. It was an issue in which no middle ground was begged, and one for which history offered no definitive answer concerning the rightness or wrongness of one society and people overcoming and displacing another. At hand was not only the question of human morality but also the march of empire and the inevitable contest between barbarism and civilization.”

See p. 184

Oklahoma in November can range from the temperate to the freezing such as occurred on November 16, 2021 (76℉) and November 19, 2021 (31℉). That there was a foot of ice and snow surrounding Black Kettle’s village on November 27, 1868 is not without precedent and that much more died that day than principle and morality is neither.

A special thank you is due to Cheryl Salerno, Librarian of the Oklahoma Wesleyan University Library
 in Bartlesville, Oklahoma for her courtesy and assistance.