Upholding the Law: Is it the Attorney General’s Job to Help Argue for Laws that are Not Inherently Moral, and How Is The Line Drawn?

On April 20, 2013 we attended a panel discussion about the impact of Edward Levi on the office of United States Attorney General. (Edward Levi was the 71st Attorney General, serving from 1975 to 1977. He was recruited from the University of Chicago by President Gerald Ford to bring transparency, independence and integrity back to the Justice Department after the debacle of Watergate.) The evening began with formal remarks by the current (and 82nd) U.S. Attorney General Eric Holder. These were followed by a discussion moderated by Geoffrey Stone and featuring the former (79th) Attorney General John Ashcroft, as well as Jack Fuller, the Pulitzer Prize winning journalist who served as a Special Assistant to Levi and is now the editor of a new collection of his speeches (Restoring Justice: The Speeches of Attorney General Edward Levi, University of Chicago Press, 2013).

The event quickly became politicized however, beginning with the somewhat-of-a-stump speech by AG Holder, who did, however, manage to deliver a wonderful paean to Levi. Perhaps Holder’s most controversial remark came when listing the Obama Administration Justice Department achievements, among which he included the decision not to support the Defense of Marriage Act before the Supreme Court. (The Defense of Marriage Act, known as DOMA, which passed by overwhelming margins in both houses of Congress in 1996 and was signed by President Bill Clinton, bars federal agencies from recognizing the validity of same-sex marriages in the states where they are legal.)

Eric Holder at University of Chicago, April 20, 2013

After the panel session ended, some audience members stayed behind to continue the discussion. A number expressed outrage that Holder would not uphold the laws he was sworn to uphold (such as DOMA) in his capacity as the nation’s top lawyer. The dialogue then segued into a debate over the importance of the Rule of Law vis-à-vis laws that appear, at least to some people, to be patently unjust. Historically, these tend to have been laws that have facilitated, enabled, or encouraged discrimination against discrete minorities, such as Jim Crow laws, and even the Dred Scott decision by the Supreme Court. The “Rule-of-Law Camp” opined that, if we all were free to act upon our own preferences or even consciences, there would be no “law” nor even any point for a body of law.

However, strong counterarguments were profferred as well. First of all there is the notion that one can in fact reference an inherent concept of morality or justice that is the basis for all systems of duty and obligation. As John Rawls famously wrote in A Theory of Justice:

Each person possesses an inviolability founded on justice that event the welfare of society as a whole cannot override. Therefore in a just society the rights secured by justice are not subject to political bargaining or to the calculus of social interests.”

And yes, Lincoln famously maintained that he would defend the Fugitive Slave Acts because they were the law of the land, but he made every effort, both above and below the table, as it were, to make sure those Acts were struck down or nullified in practice. Similarly, he averred that he could not free the slaves because the Constitution seemed to recognize slaveholders’ property rights in their slaves, and the 5th amendment guaranteed those rights could not be abridged without due process of law. But he used his knowledge of the intricacies of the law, his courage, his faith in morality, and his audacity to find a way around that barrier as well.

Other controversies enlivened the proceedings. It was clear during the Q&A session that the presence of AG Ashcroft was seen as an opportunity to assail the policies of the Bush Administration – particularly regarding Guantanamo. Ashcroft, clearly affected, took up the challenge in the little time he could. In addition to the specific defenses he made, he emphasized several times that if the public has a problem with the President and/or the Administration, they have a remedy every four years.

As for the Rule of Law argument, our own view is that we should endeavor to remember that as much merit as there is in adhering to “the Rule of Law,” one mustn’t reify that concept to the extent that it escapes all context. Specific interests from political, economic, religious, and/or class perspectives and values go into the formulation of laws, and these interests can bias social, political, and/or economic outcomes, no matter how “facially neutral” the law may appear or how “non-intentional” any invidiously harmful consequences. In the case of DOMA, the discriminatory effect of the law is not even obscured. Moreover, as Eric Posner observes in “How the Law Should Deal with Dzhokhar Tsarnaev” (posted on Slate.com April 22, 2013), “…criminal procedural rights [and other laws and precedents] [are] cobbled together over decades by fallible judges, who [are] responding to the needs of the time.”

Should constitutional or congressional evil be upheld? As Sanford Levinson wrote, “…one person’s notion of justice is often perceived as manifest injustice by someone else…” (Constitutional Faith, Princeton University Press, 1989). But that doesn’t mean that on occasion there really is a clear demarcation between the just and the unjust! A mechanistic view of the legal system only enables responsibility for results to be externalized, and for responsibility for the ensuing harm to be evaded. As the constitutional scholar Charles Black proposed, let us use the right not to be discriminated against as a fundamental yardstick. Let us reach beyond institutionalized phrases and blind obeisance to “rules” when those rules may require us to hurt others. Let us once again take up the mantle of the Declaration of Independence, and make a commitment to help everyone in society pursue their own vision of happiness, as long as it doesn’t harm anyone else.

But you can draw your own conclusions! The University of Chicago has provided a video recording of the entire event, which is well worth your time, and may inspire you to “join the conversation” (paraphrasing Reverend Al Sharpton every night on MSNBC).

Review of “The Art of Power” by Jon Meacham

Was Jefferson a great man or just one whose reputation was immeasurably enhanced by the need of Americans to turn their Founders into saints?

Little interests me more than the process of historiography – i.e., the study of historical writing, and the ways in which interpretations of the past change depending on the individual historian. Books about Jefferson provide a great opportunity to see historiography at work!

What historians choose to focus on regarding Jefferson has implications for our national identity, making biographies of him all the more significant. The determination of what to include about a Founder and how to interpret it not only reflects upon the legitimacy of the American experiment, but also on the continuing social and political order, given our valorizing of “the intent of the Founding Fathers.”

So history is not just a chronicle; it has ideological contours. It not only helps shape what we believe about ourselves, but reveals what we want to believe, and what we want to forget.

For those who want their idealized perceptions of the Founding Fathers left intact, this book is the perfect anodyne to the recent spate of critical works about Jefferson.

Meacham takes great pains to present Jefferson as positively as possible, and in the event of overwhelming facts to the contrary, he has three different approaches to impose his view of Jefferson on the reader. When Meacham is recounting what amounts to dirty tricks, underhandedness, manipulation, and hypocrisy (most of which Jefferson put up Madison and others to doing rather than exposing his own role), Meacham either pleads the different standards of Jefferson’s times, or simply redefines what Jefferson did as “practical” or “adaptable” or “savvy” or even “wise” (a move that Yale History Professor Marci Shore has referred to in a different context as “the teleological deceptions of retrospect”). Most often, however, Meacham simply omits less savory aspects of Jefferson’s behavior.

James Madison, always willing to do Jefferson’s bidding

Leaving out some events and selecting others creates a narrow shadowbox revealing only what the box’s creator wants you to see. No other voices challenge the dominant narrative. Whether consciously or not, the images of the particular history are filtered and focused to impose one version of the past over another.

Consider these facts:

In 1769 Jefferson paid for a very detailed ad in the Virginia Gazette for the capture and return of a runaway mulatto slave. The next year, as a young lawyer, Jefferson defended a mulatto slave who was suing for his freedom. Jefferson argued, “under the law of nature, we are all born free.” (At this time, he owned more than 20 slaves.)

Meanwhile, in 1776, while writing the Declaration of Independence, Jefferson had 83 slaves. This was a low number for him: from 1774 to 1826, he had around 200 slaves at any one time, owning more than 600 people during his lifetime. Most famously, he used one of them as his concubine, starting up with the not-yet-16 year old Sally Hemings when he was 46. She was almost continuously pregnant when he was in town. When she first became pregnant, while acting as a chaperone for Jefferson’s daughter in France, and where she would have had the opportunity to stay there and be free, Jefferson “bribed” her to come back to Virginia (as his slave) by promising that their children could be set free from slavery at age 21! Ugh. Just ugh! [Jefferson did keep his word to some extent, and set Sally’s children free in his will, although by then they were considerably older than age 21. Sally was not set free by the will. It is thought he gave oral instructions to his family, but there is no proof. Eight years after Jefferson died, his legitimate daughter Martha allowed Sally to leave.]

Meacham describes a number of times when the younger Jefferson indeed tried to get anti-slavery measures passed but could not. He avers that Jefferson came to believe abolition was politically lethal; he was not, therefore, willing to risk his popularity for what was “a lost cause”. Nevertheless, Jefferson not once made a move to free his own slaves, so how sincere was he really? John and Abigail Adams refused to have slaves; George Washington arranged to have his slaves freed after he and his wife died; and in 1796, one of Jefferson’s relatives, the statesman and eminent scholar George Tucker (who wrote a new edition of Blackstone’s Commentaries that was considered a valuable reference work for many American lawyers and law students in the early 19th century), wrote and published the pamphlet “A Dissertation on Slavery: With A Proposal for the Gradual Abolition of It in the State of Virginia.” In short, it wasn’t as if no one else in Jefferson’s time opted for and acted upon a moral course of action.

George Tucker, 1752-1827

It seems clear that Jefferson’s extravagant tastes and sense of entitlement prevented him from having such a large contingent of paid servants on the payroll. He had expensive taste in imported wines, foodstuffs, furniture, linens, silver, paintings, books, and entertainment. He did not care to live without these things, even if it meant that a large number of people had to live in slavery. Further, he was not above instructing his overseer to punish slaves who were not deemed to be adequately productive. The historian Henry Wiencek recounts a story (totally omitted by Meacham), describing how Monticello’s young black boys, “the small ones,” age 10, 11 or 12, were whipped to get them to work harder in Jefferson’s nail factory, the profits of which paid the mansion’s grocery bills. Some slaves, Jefferson wrote, “require a vigour of discipline to make them do reasonable work.”

Living the good life at Montecello – the Tea Room

Nor does Meacham spend time on Jefferson’s detailed calculations about how much money he could make from the “propagation” of black slaves (a 4 percent profit every year, he noted). He boasted of it to George Washington.

Last but not least, Jefferson wrote about blacks as being “racially inferior“ and “as incapable as children.” He thought that even if slaves were freed, they should all be deported (except, we presume, for Sally, who was, apparently, capable of at least one thing not commonly considered to be “childlike”.)

Meacham does, at the very end, give consideration to the contradiction of Jefferson’s beliefs about freedom for all of mankind and his continued investment in the institution of slavery, but doesn’t really resolve these contradictions, other to say that because Jefferson couldn’t push abolition through, “[h]e gave up.” Meacham did not convince me on that score, especially because when Jefferson wanted anything else done, he took every conceivable step, whether through pressure, mud-slinging, reputation-destroying, or anything else, to achieve his aims.

Vegetable garden at Montecello – it took a village, or at least a very large contingent of slaves, to maintain

Another big issue Meacham elides over is the hypocritical way in which Jefferson became apoplectic over what he considered the “monarchical” tendencies of Washington, Adams, Hamilton, and other Federalists. Yet Jefferson’s presidency pushed the limits of a strong executive in ways never before done so, and in ways that Jefferson would have considered anathema if someone else had made those moves. The Louisiana purchase, for example, was clearly unconstitutional – even Jefferson admitted it. The embargo on sending goods to Great Britain was also a curtailment of liberty and an extension of the reach of the federal government that would have had Jefferson crying treason if his predecessors had engaged in these acts. Meacham admits to this, but contends that Jefferson’s usurpations of power showed how “brilliantly” he could remold his ideology when “the future of the country” was at stake.

And on and on….

Nevertheless, Jefferson endures, as Meacham avers. He holds that Jefferson passes the fundamental test of leadership:

Despite all his shortcomings and all the inevitable disappointments and mistakes and drams deferred, he left America, and the world, in a better place than it had been when he first entered the area of public life.”

I would agree that the idea of Jefferson, and more precisely, the ideals of Jefferson, endure, and have changed the nation for the better. As Meacham observes:

All the … Jeffersons – the emblematic ones, the metaphorical ones, the ones different generations and differing partisans interpret and invent, seeking inspiration from his example and sanction from his name – all these Jeffersons tell us more about ourselves than they do about the man himself.”

The ideals Jefferson inscribed into the Declaration of Independence gave us a bridge from what was (and is) to what we wanted (and still want) to be. Although “we the people” only referred to some of the people, the bridge was in place: now we could aspire to reach the other side.

Certainly his contributions to the cause of freedom from and of religion cannot be denied. (This was a cause surely as emotionally fraught as slavery, albeit without the same economic repercussions. Yet Jefferson worked tirelessly to ensure that America would be a country that was based on a separation of church and state.) As for the man himself, I wish we could acknowledge the great uses to which he has been put, without having to deify him in the process.

Evaluation: I listened to the audio version of this book. Edward Herrmann did a very good job at narrating, and the text (in spite of my complaints about its selectivity) never lost my interest. I would only caution that, as with any historical interpretation, it is advisable to read other accounts along with it.

Rating: 3.5/5

Published by Random House Audio, unabridged on 15 compact discs, 2012.

Review of “Out of Order: Stories from The History of the Supreme Court” by Sandra Day O’Connor

Out of Order, by Sandra Day O’Connor, the first female justice of the Supreme Court of the United States, is an eclectic, somewhat uneven, collection of anecdotes.

At its best, the book features some incisive analyses of major constitutional cases. The author clearly has mastered her craft when it comes to explicating abstruse legal issues. An early chapter covers the history and development of the power relationship between the Court and the President with terse analyses of four seminal cases, from Marbury vs. Madison to Youngstown Sheet & Tube (the steel seizure case). O’Connor shines whenever she states the holding of an important case.

But the book is not pure history or pure law. It is anecdotal without an overriding sense of organization. It jumps from topic to topic, and not all the topics are particularly interesting. For example, it contains an entire chapter devoted to the various oaths (including full quotations of the oaths), judicial and patriotic, that justices take and have taken.

Sandra Day O’Connor taking the oath as an associate justice on Sept. 25, 1981.

Nevertheless, it contains some interesting factoids about the current and previous Courts, such as: (1) written opinions were not required until 1834, during President Andrew Jackson’s administration; (2) the current Chief Justice, John Roberts, was the best oral arguer Justice O’Connor encountered in 25 years on the bench; (3) Justice Antony Scalia produces more laughter (by far) than any other justice; and (4) Justice Byron (“Whizzer”) White led the National Football League in rushing while attending law school. (He played with the NFL’s Pittsburgh Pirates (now the Steelers) during the 1938 season.)

The future Supreme Court Justice Byron White got the nickname “Whizzer” while playing for the University of Colorado at Boulder

The book also contains interesting descriptions of the tribulations of earlier justices, who had to “ride circuit,” (i.e., travel—usually by horseback– around the country and conduct trials) as part of their statutory duties. [Justice O’Connor doesn’t go into it, but many of the justices had to share not just rooms, as she notes, but even beds with other judges or attorneys. Abraham Lincoln got to be good friends with some of his “bedmates” from his (Eighth) circuit riding days!]

In addition, O’Connor’s draws some enlightening and engrossing portraits of earlier justices, in particular, James McReynolds and Oliver Wendell Holmes, Jr.

The future Supreme Court Justice Oliver Wendell Holmes Jr. as an officer in the Union Army’s 20th Massachusetts Voluntary Infantry

I listened to an audio version of the book rather than reading it. That may have made enduring the chapter on judicial oaths more tedious than it would have been in writing. The reader is Justice O’Connor herself. While that adds to the authenticity of the book, the Justice does not have an especially good speaking voice.

Because its organization is not linear, the book need not be read sequentially. Each chapter stands on its own, and can even be read – in a probable unintended play on title, out of order. Taken as a whole, it is a pleasant introduction to Supreme Court lore for those with no background in such matters. The Justice does not get into current controversial issues facing the Court.

For a more sophisticated collection of Supreme Court historical anecdotes, I would recommend The Nine, by Jeffrey Toobin, a large portion of which – ironically – focuses on the pivotal role of Sandra Day O’Connor in recent Court history (see our review, here.)

Rating: 3/5

Note: I listened to the unabridged audio version published by Random house Audio, 2013, on 6 compact discs.

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State-by-State Maps: Gun Laws and Gun Fatalities

This interactive map of U.S. gun laws allows you to check out specific types of gun laws or all gun laws:

This interactive map enables you to compare gun fatalities with traffic fatalities for each state:

As “Mother Jones” reports, it’s not just homicides that are becoming more problematic, but suicides as well:

In the not-so-distant future, if current trends continue, more Americans will die from gun violence than from auto accidents, but the state of Utah is wrestling with the fact that it hit that grisly benchmark a few years ago. And it’s not “bad guys with guns” driving this trend; the vast majority of gun deaths in Utah for the past few years (89 percent in 2011; see chart) were people taking their own lives.”

Review of “The Sleepwalkers: How Europe Went to War in 1914” by Christopher Clark

As Clark points out in his Introduction, historians started debating the cause of the First World War even before it began! For it did seem inevitable to many at the time, although the eventual scope – resulting eventually in the mobilization of 65 million troops and ending with the destruction of three empires, 20 million military and civilian deaths, and 21 million more wounded, was unanticipated. Clark notes that while a few leaders warned of “Armageddon” and a “war of extermination” and “the extinction of civilization”, they didn’t really believe it. They also made glib observations on the glory of arms. To this extent, he opines, “the protagonists of 1914 were sleepwalkers, watchful but unseeing, haunted by dreams, yet blind to the reality of the horror they were about to bring into the world.”

Clark bemoans the difficulties of sorting through the oceans of documents on the War to get to the real facts behind its genesis, and of separating history from historical revisionism, an inevitable result of any conflict in which the victors usually control most of the narratives. [He reminds us that our moral compass in our tendency to assign blame on the one hand, or perceive justified actions on the other, has shifted as well.] In addition, there are gaps in the records; the many “secret societies” involved did not keep records, nor did we have the benefit of someone smuggling an IPhone into their proceedings to record them for posterity.

Thus, Clark maintains that he is not going to get into why the war happened; rather, his intention is more “to look closely at the sequences of interactions that produced certain outcomes.”

This distinction may sound like hair-splitting, but it does serve to allow him to concentrate his history on what actually happened rather than what didn’t happen or what might have happened, the last two “contingent” approaches characterizing a number of recent books about the Great War. (See, for example, my review of The Lost History of 1914, Reconsidering the Year the Great War Began by Jack Beatty, here.) On the other hand, he can’t really avoid talking about historical events and the international economic, social, and political situation of the time.

In this 1914 poster originally produced in Britain, Britain is shown as a bulldog, France as a poodle, Germany as a dachshund, Austria-Hungary as a mongrel, Serbia by a wasp, and Russia as a steamroller (perhaps the artist was unacquainted with the Russian Wolfhound)

The “Sleepwalkers” of the title are the foreign policy decision makers of the major powers. Clark contends that they stumbled into the war, in part because they grossly misunderstood the motivations of the other principal actors. A sub-theme of the book is that the decision-making apparatuses of all the powers except France were diffuse and confused, without clear chains of command. They were all monarchies whose kings or emperors who were no longer absolute rulers, but who exerted an ill-defined amount of power on their countries’ foreign policies. [Nevertheless, the tendency of these rulers to consider prolonged vacations a divine right of office enabled their war ministers to work themselves up into frenzies of paranoia, champing at the bit to effect pre-emptive strikes.]

Helmuth von Moltke, German Chief of General Staff, blamed by some for instigating the War

Clark calls the crisis of July 1914 the most complex event of modern times. Much modern scholarship of the War downplays the role of Serbia, implying that the prevailing confusing interlocking system of alliances was bound to produce a widespread conflict eventually. But Clark argues that in the aftermath of the Yugoslav wars of the 1990s, it is more difficult to envision Serbia as “a mere object or victim of great power politics and easier to conceive of Serbian nationalism as an historical force in its own right.”

Therefore, Clark begins his narrative not with the Sarajevo assassinations of 1914, but with the assassinations of Serbian King Alexander and Queen Draga in 1903. He observes:

…the conspiratorial network that had come together to murder the royal family did not simply melt away, but remained an important force in Serbian politics and public life.”

That network (sometimes known as the “Black Hand”) was still extant in 1908 when Austria-Hungary inflamed Serbian resentment by annexing the formerly Ottoman provinces of Bosnia and Herzegovina. Thus were Belgrade’s aspirations to creating a “Greater Serbia” dashed. The Serbian public was furious, and a new mass movement grew sprang up overnight “powered by this wave of outrage.” This dangerous dynamic in Serbian society still obtained when the unlucky Archduke Francis Ferdinand came visiting the newly absorbed provinces on June 28, 1914.

The assassination of Franz Ferdinand, heir to the Austro-Hungarian Empire (shown here with his wife Sophie) is commonly thought to have been the trigger for WWI

The archduke was murdered in Austrian territory. So what was the role of the Serbian government of Prime Minister Nikola Pašić? Although the Black Hand was not an official organ of the Serbian state, Clark concludes, “It is virtually certain that Pašić was informed of the [assassination] plan in some detail.” The government of Austria-Hungary was understandably incensed by the murder, but was unable to prove Serbian government complicity in the immediate aftermath. Nevertheless, key Austrian decision-makers determined that only a military response would do. The Austrian reaction set in motion the immensely complicated series of diplomatic and military maneuvers (such as making sure that Germany was on board) that ultimately resulted in the outbreak of World War I five weeks later.

A simplistic description of the war as a conflict between the Triple Alliance (Germany, Austria-Hungary, and Italy) and the Triple Entente (Russia, France, and Great Britain) does not do justice to the complexities of interlocking alliances and “understandings” that bound the Great Powers to assist one another in the event of mobilization for armed conflict.

Clark assiduously describes this maze, stating:

The chaotic interventions of monarchs, ambiguous relationships between civil and military, adversarial competition among key politicians in systems characterized by low levels of ministerial or cabinet solidarity, compounded by the agitations of a critical mass press against a background of intermittent crisis and heightened tension over security issues made this a period of unprecedented uncertainty in international relations.”

Clark does not ascribe blame for the war. He says, “There is no smoking gun in this story; or, rather, there is one in the hands of every major character. Viewed in this light, the outbreak of war was a tragedy, not a crime.”

Péronne in northern France,during the Battle of the Somme, 1916

Evaluation: This is a long and densely packed history centering on the five weeks leading up to World War I. The emphasis is therefore on relatively minute events rather than sweeping generalizations about historical trends and long-festering causation. Nevertheless, the author includes a comprehensive background description of the military and diplomatic situation in each of the great powers. His description of numerous key individuals is masterful. To summarize this 550+ page account would take many more pages than is appropriate in a review. It is an excellent addition to the voluminous literature of the causes of World War I, but is probably not primarily for the casual reader looking for an overview of the War.

Moreover, I should note that his theory of “sleepwalkers” goes against the conviction of other WWI scholars, who tend to see the onset of WWI in a similar light as some analysts view the invasion of Iraq in 2003. Important policy makers wanted this war to happen, and the military-industrial complex supported their enthusiasm. The rest, as they say, is history.

Rating: 4/5

Note: Maps, photos, and voluminous notes are included with the text.

Published by Harper, an imprint of HarperCollins, 2013

2013 Pulitizer Prize for Gilbert King’s masterful study of Thurgood Marshall

Congratulations to a prize well deserved! Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America by Gilbert King was just awarded the 2013 Pulitzer Prize for non-fiction. Our review is here.

This is one of the best books we have read in recent memory. The author told the New York Times that he had become fascinated by what he called “lost cases in civil rights history,” cases that were on the front pages of newspapers at the time but had been mostly forgotten since then. He said:

I started looking into them and found these untold stories. Thurgood Marshall was this amazing trial lawyer and his life was threatened constantly. He wasn’t just about reconstructing the American dream. He was out there fighting for people’s lives.”

Don’t miss this fabulous book!