James M. Redwine

United States Constitution

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”

Of Founders and Russians

by Leave a Comment

Harvard law professor Michael Klarman was the keynote speaker at the June 2019 Indiana Graduate Judges Conference. As an attendee I received a signed copy of Klarman’s book, The Framers’Coup, The Making of the United States Constitution. Gentle Reader, to give you some perspective on the exhilarating experience of a law professor’s book, the tome’s Note and Index sections run from page 633 to 865. Of course, the substance of the book contains 632 pages of which several pages thank the law students who did the grunt work. Regardless, I do recommend the book to you as an interesting and often surprising exposition of how our Constitution survived the throes of birth. As Klarman says of our pantheon of founding heroes:

“In the book I try to tell the story of the Constitution’s origins in a way that demythifies it. The men who wrote the Constitution were extremely impressive, but they were not demigods; they had interests, prejudices, and moral blind spots. They could not foresee the future, and they made mistakes.”

This is Klarman’s raison d’etre for writing the book. His admonition is that the men, and they were all white, Anglo Saxon, Christian men, who struggled for six months in Philadelphia in 1789 to create the United States were just men, not gods. Some of them owned slaves, some did not. Some were from populous states, others were not. But they were all mere mortals with virtues and defects.

The underlying message of the book is that if those men could find a way to overcome their political and philosophical divisions, we and future Americans should also be able to. For example, in our current culture wars where President Trump alleges Ukraine helped Secretary Clinton in the 2016 election and Clinton alleges Russia helped Trump and more recently both Trump and Clinton and many others are flinging arrows in all directions alleging our leaders are “foreign assets” we should just chill. If James Madison and the Federalists and Thomas Jefferson and the anti-Federalists could reach compromises, we should be able to also.

The salient issues and the thorniest were how could our Founders apportion representation among populous and less populous states, how was slavery to be addressed (or not) and could common citizens be trusted to govern themselves.

According to Klarman, as our Framers struggled to hold the Constitutional Convention together the Federalists and the anti-Federalists, “Questioned their opponents’ motives and attacked their characters, appealed to the material interests of voters, employed dirty tricks and made backroom deals when necessary.” Sound familiar?

Okay, you probably are choosing to go sort your socks rather than to hear any more from Professor Klarman or from me. But a word of caution, Gentle Reader, if I have had to experience the joys of all the almost 900 pages of Constitutional history, you may have the same opportunity in next week’s column. We might even delve into the vicissitudes of whether the United States Supreme Court is truly independent or are its decisions as politically based as those of the other two Branches

Cross Examination, The Engine Of Truth

by Leave a Comment

Freedom of Speech is a good thing. That includes the “right” to lie and disparage anonymously. Cross examination is recognized in legal matters as the greatest engine of truth. It is just as much a Constitutional Right as Freedom of Speech. The First Amendment to the United States Constitution protects one’s right to speak and the Sixth Amendment protects the right to “confront one’s accusers”, i.e. to cross examine them, in criminal cases. Indiana’s Constitution guarantees both Freedom of Speech and “Face to Face” cross examination. It is clear that those who founded both our state and our country considered both rights sacred.

However, as with much of life and law the devil is in the details when particular situations that implicate conflicting Constitutional Rights must be addressed. If CNN and MSNBC want to proclaim President Trump a pariah while FOX News proclaims him a messiah both positions are constitutionally protected even if they might cite to anonymous sources to do so. So, how do those who disagree with either position exercise the right of cross examination. Well, they don’t. Private citizens and non-governmental entities are perfectly within their rights to cite or even make up anonymous sources.

When the government wants to use Confidential Informants in criminal cases to seek an arrest or search warrant, the police officer or Prosecuting Attorney must, under oath, set forth facts whereby the reviewing Judge or Magistrate can determine a C.I.’s information is credible. Such things as the ability and opportunity to observe are essential considerations. And, even if the Judge grants the request for a warrant, when a case is filed the Court has the authority to order the disclosure of a C.I.’s identity so that a person who is charged may cross examine the C.I. or have the case thrown out.

This protection of the truth is not available in the civil area nor should it be. If a media outlet wants to lie or make up sources the outlet might be sued but the government should not be allowed to squelch free speech. On the other hand, those of us who are inundated with a constant barrage of personal invective described by the media as “news” owe it to ourselves and our country to demand that news organizations disclose “anonymous sources” or, at least thoroughly vet them and set out the vetting process along with the source’s bona fides so we can judge for ourselves.