July 30, 1943 – Birth of Legal Scholar Robert M. Cover

Robert M. Cover, a professor at Yale University Law School, wrote and lectured widely on legal history, constitutional law and jurisprudence before his untimely death of a heart attack at age 42.

He is famous for articulating several thought-provoking concepts about law, including the inherent violence in legal interpretation:

Legal interpretation’ takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his chil- dren, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.”

He is perhaps most cited for his writings on law as a bridge in normative space, connecting the world we have to a world we can imagine. His elaboration of this concept in his seminal article for the Harvard Law Review, “Nomos and Narrative” is worth reading in full, and may be accessed online here.

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July 28, 1794 – Execution of Robespierre and His Supporters

On this date, Maximilien de Robespierre, the head of the “Committee of Public Safety” during the French Revolution and the man who sent so many to the guillotine, had his own appointment with the executioner, known throughout the city as “Monsieur de Paris.” According to archival records (per references cited in Wikipedia), at least 16,594 people died under the guillotine or otherwise after accusations of counter-revolutionary activities. A number of historians note that as many as 40,000 accused prisoners may have been summarily executed without trial or died awaiting trial.)

The execution of Robespierre and his supporters on 28 July 1794. (The beheaded man is not Robespierre, but Couthon; Robespierre is shown sitting on the cart, dressed in brown, wearing a hat, and holding a handkerchief to his mouth. )

The execution of Robespierre and his supporters on 28 July 1794. (The beheaded man is not Robespierre, but Couthon; Robespierre is shown sitting on the cart, dressed in brown, wearing a hat, and holding a handkerchief to his mouth. )

The French Revolution had profound consequences for political and legal developments in the modern era.

July 26, 1776 – An American Post Office Is Established

On this day in history, an American Post Office was established with Ben Franklin as Postmaster General. Franklin used “B. Free Franklin” as his signature while in that office.

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Before the Revolution, most of the mail went back and forth not among the colonies but to counting houses and government offices in London. With the coming of the Revolution, the colonies now needed to communicate with one another to circulate news, new laws, and military orders, inter alia. Journalists were especially eager to have a postal system established.

In October, 1774, William Goddard, a Patriot printer who was frustrated with the unreliable means for both sending out and receiving information, laid out a plan to the Second Continental Congress for a Constitutional Post. Benjamin Franklin promoted Goddard’s plan; he had already served as postmaster general of the colonies from 1753 to 1774, when he was fired for opening and publishing Massachusetts Royal Governor Thomas Hutchinson’s correspondence.

On July 26, 1776 the Second Continental Congress finally adopted the plan, agreeing to appoint a Postmaster General for the United Colonies who would establish a line of posts “from Falmouth in New England to Savannah in Georgia, with as many cross posts as he shall think fit.”

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A special proviso added “That it be recommended to the postmaster general to establish a weekly post to South Carolina.”

The Congress then unanimously chose Benjamin Franklin as the first Postmaster General.

While postmaster, Franklin streamlined postal delivery with properly surveyed and marked routes from Maine to Florida (the origins of Route 1), instituted overnight postal travel between the critical cities of New York and Philadelphia and created a standardized rate chart based upon weight and distance.

Under the Articles of Confederation, Congress established the Confederation Post Office effective October 18, 1782. Although the Constitution was adopted in 1788 it was not until 1792 that Congress formally established the United States General Post Office.

By the end of George Washington’s second presidential term in 1797, the number of post offices, miles of post roads and amount of postal revenues had quintupled.

Originally, the postal recipient paid postage. Letter carriers first appeared in cities in 1794. In lieu of salaries, they collected two cents plus postage for each letter they delivered. The use of adhesive postal stamps was authorized by Congress on March 3, 1847.

The USPS employed 626,764 workers as of January 2014 and operated 211,654 vehicles in 2013, the largest civilian vehicle fleet in the world.

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July 24, 1929 – President Herbert Hoover Proclaims the Kellogg-Briand Pact

On this day in history, President Hoover congratulated “the entire world” for coming up with “this additional instrument of humane endeavor to do away with war as an instrument of national policy and to obtain by pacific means alone the settlement of international disputes.”

The Kellogg–Briand Pact or Pact of Paris (formally, the General Treaty for the Renunciation of War) was signed on August 27, 1928 by the United States, France, the United Kingdom, Germany, Italy, Japan, and a number of other states. The Pact, named for its authors – U.S. Secretary of State Frank B. Kellogg and French Foreign Minister Aristide Briand – prohibited the use of war as “an instrument of national policy” except in matters of self-defense. It made no provisions for sanctions. The pact was registered in League of Nations Treaty Series on September 4, 1929.

President Herbert Hoover

President Herbert Hoover

Frank Kellogg earned the Nobel Peace Prize in 1929 for his work on the Peace Pact. Kellogg Boulevard in downtown St. Paul, Minnesota is named for Kellogg, but reportedly, roughly fifty percent of the residents of St. Paul believe the street is named for the breakfast cereal company.

Frank Kellogg

Frank Kellogg

You can read the text of Hoover’s proclamation here, and the text of the Kellogg-Briand Pact here.

July 23, 1936 – Birthdate of Justice Anthony M. Kennedy

On this day in history, Anthony Kennedy was born in Sacramento, California. Kennedy graduated cum laude from Harvard Law School and entered private law practice in California. He befriended many politicians, including Ed Meese, and donated large sums of money to Republican officials in the state. When Meese went to work for Ronald Reagan, Meese recruited Kennedy to help Reagan draft a tax cut plan. Reagan was impressed with Kennedy and recommended him for a vacancy on the U.S. Court of Appeals for the Ninth Circuit, which Kennedy joined in 1975 as the youngest federal judge in the country.

When Supreme Court Justice Lewis Powell retired in 1987, Reagan first nominated Robert Bork, but he failed to win confirmation. Reagan then turned to Douglas Ginsburg, who withdrew himself from consideration after only nine days when allegations leaked concerning his past marijuana use. Reagan, on the advice of Meese, finally turned to Kennedy to fill the vacancy on the Supreme Court. Kennedy’s nomination encountered little resistance and he was unanimously confirmed by the Senate and he took his seat on February 18, 1988.

Justice Anthony Kennedy

Justice Anthony Kennedy

Today, Kennedy is frequently viewed as the Court’s swing vote on social issues and has consequently held special prominence in several politically-charged, highly anticipated 5 to 4 decisions, including the notorious Citizens United v. Federal Election Commission (Docket No. 08-205), for which he delivered the opinion in 2010.

You can access an extensive list of articles about and analyses of the Citizens United decision here.

July 21, 1959 – D. H. Lawrence’s Novel Lady Chatterley’s Lover is Ruled Not Pornographic

On this day in history, Judge Frederick Bryan of the United States District Court for the Southern District of New York ruled in favor of Grove Press and ordered the Post Office to lift all restrictions on sending copies of Lady Chatterley’s Lover through the mail. This, in effect, marked the end of the Post Office’s authority — which, until then, it held absolutely — to declare a work of literature “obscene” or to impound copies of those works or prosecute their publishers.

The case began on May 15, 1959, when Barney Rosset, the publisher of Grove Press, sued the Post Office for confiscating copies of the uncensored version of D. H. Lawrence’s 1928 novel Lady Chatterley’s Lover, which had long been banned for its graphic sex scenes.

Barney Rosset

Barney Rosset

As recently as two years prior, the Supreme Court had ruled in Roth v. United States (354 U.S. 476, 1957) — a case involving a bookseller who sent erotic literature through the mail — that the First Amendment’s guarantees of free speech did not apply to obscenity. [As an aside, it should be noted that this was not the Supreme Court case memorable for the phrase regarding obscenity “I know it when I see it.” That case was Jacobellis v. Ohio (378 U.S. 184, 1964).

The case against Lady Chatterley’s Lover seemed cut and dry since it met the legal definition of obscenity at the time.

However, Rosset’s lawyer, Charles Rembar, spotted a loophole in the Roth decision. That opinion, written by Justice William J. Brennan, claimed that the purpose of the First Amendment was “to assure unfettered interchange of ideas” and that “all ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guarantees.” But, Brennan went on, “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”

Rembar posed a question that Brennan apparently hadn’t considered: What if a book met the standards of obscenity yet also presented ideas of “redeeming social importance”? He argued that only material both prurient and “worthless” should be denied the privilege of free speech.

Presenting testimony from several literary critics, Rembar argued that Lady Chatterley’s Lover was a novel of ideas that actually advocated sexual fulfillment in marriage, rather than sex without love, as well as inveighing against hypocrisy and the mechanization of industrial life.

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The United States attorney representing the Post Office, S. Hazard Gillespie Jr., pointed out that Justice Brennan wrote that controversial ideas “have the full protection” of the First Amendment — “unless,” Gillespie emphasized, these ideas were “excludable because they encroach upon the limited area of more important interests.” One of those interests was keeping obscenity under wraps. Therefore Rembar’s argument was irrelevant.

Supreme Court Justice William Brennan

Supreme Court Justice William Brennan

Rembar rebutted that in the footnote in which Justice Brennan elaborated on what kind of “more important interests” were “excludable,” all of them involved actions, such as peddling, but none involved writing.

Rembar further observed that “A novel, no matter how much devoted to the act of sex, can hardly add to the constant sexual prodding with which our environment assails us.” In short, “community standards” were radically changing.

The judge accepted Rembar’s interpretation, and issued his opinion in favor of the defense.

After the ban on Lady Chatterley was lifted, the book reached Number Two on The New York Times’s best-seller list and, within a year, sold two million copies. It is now considered a “classic.” (Lolita was also in the top ten.)

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Mr. Rembar went on to defend Henry Miller’s Tropic of Cancer, banned in dozens of states and cities, and, building on his successes, represented G.P. Putnam’s Sons as the publisher of Fanny Hill.

Review of “Fierce Patriot: The Tangled Lives of William Tecumseh Sherman” by Robert L. O’Connell

This tribute to Sherman is so much more than a biography. O’Connell provides a truncated history of the Civil War, an excellent analysis of the army and its strategy and tactics, and a fascinating look at the role Sherman played in the development of the American West following the hostilities. Finally, he shows the way religion tore apart Sherman’s family creating a generational ripple that was undoubtedly the country’s loss as well as Sherman’s.

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O’Connell makes a compelling argument not only for Sherman’s criticality to Union victory in the Civil War, but also that Sherman needed to be second in command to feel the comfort and freedom to express his strategic brilliance. (One thinks of George Washington as General of the American Patriot Army, in horror of the possible repercussions of being in command, and constantly writing to Congress that it wouldn’t be his fault if they didn’t win.) O’Connell avers that it was the team of Sherman and Grant, whose strengths complemented each other, that was the key to Union victory.

1864 Portrait of General Ulysses Grant by Matthew Brady

1864 Portrait of General Ulysses Grant by Matthew Brady

Among the personal characteristics of Sherman that O’Connell points to as contributing to his success, he includes his West Point training, his personal charisma, his intellectual energy, and his past work experience which gave him intimate knowledge of the American terrain, an excellent command of logistics, an appreciation for the strategic importance of both the Mississippi and railroads, and an understanding of when it was best to quit and cut his losses.

1864 Portrait of William Sherman by Matthew Brady

1864 Portrait of William Sherman by Matthew Brady

Beyond the team of Sherman and Grant for the success of the Civil War, O’Connell credits Lincoln’s political brilliance and his insight into his generals (even if he didn’t always have the political capital to change them around); the importance of defected slaves who not only performed hard labor for the Union Army, but served as a network of intelligence about Confederate movements, Southern topography, potential ambushes, arms caches, and so on; the transition to rifled instead of smoothbore weapons; and to the significant role played by psychological warfare.

Portrait of Abraham Lincoln during the Civil War by Matthew Brady

Portrait of Abraham Lincoln during the Civil War by Matthew Brady

For those of us who always wondered about the sanity of generals who ordered open-field, close-range infantry attacks, O’Connell points to the revolution in firearms that took place in the middle of the Civil War. Just prior to that time, weapons consisted of smoothbore guns with inferior slugs that used flint for ignition. By 1862, however, many soldiers on both sides obtained rifles with Minié balls and percussion cap ignitions, even if they had to buy them with their own money. The accuracy range of these rifles exceeded that of cannon. The dynamics of the battlefield had suddenly shifted from what made sense when most of the officers had been trained at West Point or fought in the recent war in Mexico. Then, frontal assaults worked brilliantly. Now, they heralded slaughters. But it took the officers a while to adapt.

Rifled minie balls

Rifled minie balls

After the Civil War, Congress created the rank of General of the Army for Grant and promoted Sherman to Lieutenant General. When Grant became president in 1869, Sherman was appointed Commanding General of the United States Army and promoted to General of the Army.

The Central Pacific's engine Jupiter and the Union Pacific's engine No. 119 meet on May 10, 1869, at Promontory Summit, Utah.

The Central Pacific’s engine Jupiter and the Union Pacific’s engine No. 119 meet on May 10, 1869, at Promontory Summit, Utah.

One of Sherman’s main assignments was to protect the construction and operation of the transcontinental railroads from attack by hostile Indians. Sherman employed many of his veterans as railroad workers, since they had years of experience with the speedy breaking up and bending of track. In addition, Sherman orchestrated the killing of some five million buffalo between 1867 and 1874, reasoning that if all the buffalo were extinct near the railroads, the Indians would have no reason to approach. O’Connell does not deny that Sherman, like almost everyone else at the time, had Indian exclusion as a goal. He wrote to Grant, after a battle in 1866 between the Lakota, Cheyenne, and Arapaho Indians and soldiers of the United States Army in which all 81 army men were killed by the Indians, that “we must act with vindictive earnestness against the Sioux, even to their extermination, men, women and children.”

He did occasionally express some sympathy for Native Americans. He wrote his wife:

I don’t care about interesting myself too far in the fate of the poor devils of Indians who are doomed from the causes inherent in their nature or from the natural & persistent hostility of the white race.”

But as O’Connell observes, the Indians were doomed whether Sherman were involved or not; “Sherman’s masterful planning only made it more sudden.”

Buffalo Skulls 1870

Buffalo Skulls 1870

O’Connell doesn’t spend a great deal of time on the relationship of Grant and Sherman, but documents the closeness they had during the Civil War (Sherman recalling, “He stood by me when I was crazy and I stood by him when he was drunk; now sir, we stand by each other always”), as well as the fact that it was not maintained afterwards, much to Sherman’s sorrow. But in Grant’s last year, Sherman went to his side repeatedly, helping to restructure Grant’s debts. He served as one of Grant’s pallbearers.

Sherman died in New York in 1891 at age 71. This book is a fitting tribute to a man who, as O’Connell documents, contributed so much to America’s survival in war and to its profile in peace.

Portrait of Sherman after 1865 from the Brady-Handy Collection

Portrait of Sherman after 1865 from the Brady-Handy Collection

Evaluation: This highly favorable, though not hagiographic biography of William Tecumseh Sherman is eminently readable and consistently interesting.

Rating: 4/5

Published by Random House, 2014

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