James M. Redwine

Thomas Jefferson

Independence Day Jeopardy

by Leave a Comment

Photo by Peg Redwine.

John Adams, our second president, and Thomas Jefferson, our third president, were great friends who became estranged for years but reconciled before they both died on July 4, 1826. Each was an attorney who championed individual liberty and civil rights. Adams believed the date of America’s birth was July 2, 1776, the date the Continental Congress voted for independence. Jefferson thought our birthday was July 4, 1776, the date the Declaration of Independence was signed. Both Founding Fathers declared we should celebrate our founding with special activities.

Jefferson was the first president to host a July 4 commemoration at the White House. Jefferson wrote about Independence Day, “For ourselves, let the annual return of this day forever refresh our recollections of these rights, and an undiminished devotion to them.”

Adams sent a letter to his wife Abigail on July 3, 1776 in which he declaimed:

“I am apt to believe that it (July 2, 1776) will be celebrated, by succeeding Generations, as the great anniversary Festival.

…

It ought to be solemnized with Pomp and Parade, with Shews (shows), Games, Sports, Guns, Bells, Bonfires and Illumination from one End of this Continent to the other from this Time forward forever more.”

My family, and most likely yours too Gentle Reader, have carried out these patriotic demands for as long as we have been fortunate enough to do so. For more than the past twenty years my family has gathered around July 4 and reveled in the wonder of the United States of America by engaging in a hotly contested Independence Jeopardy game.

Photo by Peg Redwine

This year our son Jim portrayed Benjamin Franklin, my nephews Dennis and David Redwine, donned the colonial frocks of Uncle Sam and George Washington and teams of relatives vied to earn the Independence Day Jeopardy championship. The competition was fierce and only barbeque and copious desserts could assuage those who came in out of first.

It is always good to get our large and close-knit family together, especially over a hotly contested game of colonial history. It is of special meaning in our current atmosphere of political upheaval to remind ourselves what truly matters. So, happy birthday to all of us whether you agree with Adams or Jefferson or choose some other special time around our founding in the first week of July, 1776.

Whose Birthday Is It?

by Leave a Comment

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.

False Flags

by Leave a Comment

Photo by Peg Redwine

The United States Supreme Court has upset the United States Congress since Chief Justice John Marshall created the Court’s power to be the final authority on what our Constitution means. The Court, in the case of Marbury v. Madison, used President Thomas Jefferson’s pride against his logic and traded an insignificant presidential appointment by John Adams, Jefferson’s bitter political enemy and his immediate predecessor, for the immense and previously non-existent “Power of Judicial Review”. Ever since 1803 Congress, the Executive Branch and the American public have regularly wrung their hands as the Court decided numerous atrocious cases such as Dred Scott, Bush v. Gore 2000, Citizens United v. FEC and Dobbs v. Jackson. Yet from 1789 when our Constitution was ratified until today the authority to balance the power of the Supreme Court has been clearly set forth in Articles I, II and III of the Constitution. It just requires that Congress find the courage to do so. Article III provides that justices of the Supreme Court:

“[S]hall hold their offices during good behavior.”

And it is up to the House of Representatives to decide what is “good behavior” and whether a justice has violated it, such as by committing some unethical act. Then the U.S. Senate holds a trial on the charge of impeachment.

In our current legal and political climate many members of Congress have publicly stated some justices have committed impeachable offenses. However, instead of advancing articles of impeachment Congress rails against the Court and demands the Court police itself and come up with written ethical rules and sanctions. Not surprisingly, the justices demur; no one likes to be controlled by anyone else, especially if those anyone elses are as lacking in “good behavior” as the Court.

If Congress wishes to influence the personal behavior of the justices in such areas as conflicts of interest and abuse of their special status, all Congress needs to do is apply the Constitution. On the other hand, we as a country, could find the courage to quit prescribing pain killers and perform some real, curative surgery on the judicial limb of our three-branch government.

It is historically established that Article III’s requirement that United States Supreme Court justices’ good behavior standard is pro forma only. Such instances as a former slave owner, Chief Justice Roger Taney in 1857, deciding slave Dred Scott had no rights that needed to be protected or a majority of Republican appointed justices deciding Republican George W. Bush “won” the presidency in 2000 are simply winked at.

The remedies for our nation’s possibly fatal illness of public loss of confidence in the Court may be painful and difficult to endure, but the alternatives are worse. The impeachment of all justices for every breach of decorum would be wrong, unfair and impractical. It would also not solve our problems.

But if Congress truly wishes to put the balance back in our democracy, I suggest we first institute term limits for justices. Our presidents can serve only 8 years. Perhaps a 10-year term for justices would be workable. Also, federal judges are now nominated by the President and confirmed in the Senate. Why not implement a democratic system for all federal judges so that all citizens, not just a select elite few, would have the right to help choose those whose decisions can affect us all? Of course, such changes will require much thought and input, but all serious illnesses should.

In other words, instead of continuing to complain as we avoid the hard choices, let’s choose the harder right instead of continuing to fly false flags that only apply band aids.

Photo by Peg Redwine

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.

Not Rocket Science

by 3 Comments

The Rule of Law is not the stuff of artificial intelligence and differential equations. It is not about the James Webb telescope that may help disclose where and when we came from. It is not about a cure for COVID. No, the Rule of Law is far more complex, and perplexing, than any of those things. However, if properly applied, the Rule of Law can help us understand and deal with these challenges and others.

Law sounds simple. Treat others the way you wish to be treated. Respect the person and property of others. These principles are easy to say but thousands of years of human history prove they are extremely difficult to apply. Our Declaration of Independence sets out the basics of our legal system, “…[A]ll men are created equal,” and all men have the right to life, liberty and the pursuit of happiness. When Thomas Jefferson penned those simple ideals he owned slaves, and had children he did not acknowledge by at least one of those slaves. Also, women could not vote and the property rights of Native Americans were not even an afterthought. Were Jefferson and the rest of the 1776ers evil? No, they were human. We call these concepts ideals because the realities are nearly impossible to achieve. That is why we need the Rule of Law, to encourage us to try.

Our Constitution sets forth America’s aspiration to form a more perfect union. Surely none of our Founders was naïve enough to believe perfect self-government was achievable. That is not why goals are set. Just as it is the struggle of life that can separate us from all other animals and, perhaps from some humans, it is government’s role to help us strive for perfection. We have often fallen short and we always will. But just as we are fighting the war on COVID in fits and starts we can face our past failures in how we have behaved and strive to be better. There will never be a cure for our occasional imperfect collective missteps. That is why we need to acknowledge our past failures and seek to avoid future sins. We should do this together.

In her book, On the Courthouse Lawn, Sherrilyn Ifill points out the irony of many lynchings being carried out by large numbers of a community right at the seat of justice, the county courthouse. Also, our courthouses are often the site where the legal system has been used to deny human rights, such as through the separation of Native American families and establishment of some guardianships that led to murder.

Community recognition of these subversions of the Rule of Law is important. Monuments that show society admits its wrongs, even if long past, can help people heal and avoid new injustices.

Tribal Court

by Leave a Comment

Chief Joseph

After forty years of serving as a judge in the white man’s courts I was recently honored to be asked to serve as a Special Judge by appointment of the Court of Appeals of the Stockbridge-Munsee Community of the Mohican Nation. The appointment of an outside judge was necessary because the case involves questions of tribal membership and the regularly sitting Native American judges for the Tribe had conflicts of interest due to the judges’ personal connections to the issues.

As I had no experience with Native American law, I had to first familiarize myself with the particular Tribe’s particular Constitution, procedural rules and statutes that applied to my assigned case. What I found was the bedrock issues for the Indian judicial system are remarkedly similar to the legal system I learned in law school and sat as a judge in. When I looked closely at tribal law, I came to the same conclusion attorney Abraham Lincoln did. Lincoln said the primary purpose of all courts and lawyers should be to:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer (judge) has a superior opportunity of being a good person.”

If one reads some newspaper editors or listens to cable news anchors, he or she might conclude compromise is anathema to the American body politic’s well-being. Conflict and strife with unyielding single mindedness are the watchwords for national media and federal, and many state, office holders. This way of addressing our personal and national problems seems rather discordant when a majority of Americans apparently believe their preferred law giver said:

“Blessed are the peacemakers, for they will be called the children of God.”
Matthew 5:9

It is ironic that those, many of whom champion Jesus the ultimate practitioner of compromise, so often call for obstinance and conflict. I guess the concept of situational ethics passes them by.

What I discovered in researching tribal law was what legal scholars have known since the days of Socrates: all courts are here to resolve controversies. That is their only charter, not to provide fodder for the gossip mill or entertainment for the afternoon or late-night talk show crowd. Judges, whether in the white man’s legal system or the Indian’s, have one main mission, that is to help people help themselves, if they can, to make peace.

I grew up on an Indian reservation but my experience with the kids I played ball with, fought with and dated was they were just like me. Therefore, I was not surprised Native American courts had the same mission as the one I presided over in the white man’s world. On the other hand, it is comforting to think should I for some reason get caught up in a tribal legal system it will be about the same as the social system I have always known. And I am glad America is finally getting around to recognizing what should have always been the case.

The tribal law I researched reminded me of laws enacted from the times of ancient Rome, ancient Greece and English and French legal philosophers, such as John Locke and Voltaire and American Founding Fathers, such as Thomas Jefferson and James Madison.

Another great philosophical legal leader was Chief Joseph of the Nez Perce (1840-1904). Chief Joseph engaged in peaceful resistance until he was forced to surrender which he did based on certain representations from the white man’s government. Those representations were not honored. However, Chief Joseph upheld his end of the peace agreement and he was greatly admired as a peacemaker.

Chief Joseph’s legal philosophy is remarkedly similar to that of our earlier mentioned judge: Jesus said, “do unto others as you would have them do unto you.”  Chief Joseph said:

“If the white man wants to live in peace with the Indian, he can live in peace. Treat all men alike. Give them the same law.”

As a tribal judge, even if only for one case, I feel quite at home with this court mission statement from Chief Joseph.