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.

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!

April 15, 1865 – Death of President Lincoln; Review of “Looking at Lincoln” by Maira Kalman

On this day in 1865 President Lincoln was declared dead at 7:22 in the morning, having been shot the night before at Ford’s Theater by John Wilkes Booth. It is hard not to be fascinated by the persona of Lincoln, and there are those who even fall in love with him a bit, such as Maira Kalman.

Maira Kalman, self-portrait

I am a big fan of the art of Maira Kalman. Her style is unmistakable – she is a cartoon artist, painter, writer, and journalist who is at once whimsical, colorful, and witty, and a delight for both the eye and the intellect. She is especially known for her “visual reporting” as well as her iconic covers for the “New Yorker” magazine. She combines realism with fantasy and commentary all in the same pictures, bringing to mind artists as diverse as Ludwig Bemelmans and Marc Chagall, and yet she is always identifiable as herself.

Some of her books are labeled as for “children” and some for “adults” but I can’t imagine the former not providing entertainment for the latter. This one, Looking at Lincoln, is no exception.

Looking at Lincoln is narrated by a little girl who is curious about Lincoln and goes to the library to learn more about him. She shares what she learns about his life in the pages that follow. This is no dry recitation of facts, however. She also gives her thoughts and impressions of what she finds out, and shares questions she has about Lincoln that must go unanswered, thus introducing the idea that history is more nuanced and complex than we can know.

This book was an outgrowth of Kalman’s visit to the Rosenbach Library in Philadelphia which sponsored a large exhibition on Lincoln in 2009, and still maintains an online archive of Lincolniana. There, she said, she “fell in love with A. Lincoln.”

Kalman exhibits an extraordinary talent for summarizing the most important aspects of Lincoln’s life in just 32 pages, while still focusing on incidents that kids would find interesting. The text is funny, informative, and inspiring. Her illustrations freely mix fantasy and reality in vibrant happy colors that fill the pages.

Near the end of the book, she writes:

Abraham Lincoln will live forever. And if you go to Washington, D.C. in the spring you can walk through the cherry blossoms and visit him.”

She continues:

At his Memorial you can read the words he wrote near the end of the war. ‘…With malice toward none, with charity for all.’ And you can look into his beautiful eyes. Just look.”

The back matter contains notes on sources. In addition, The Gettysburg Address is reprinted on the front and back inside covers.

Evaluation: This is an outstanding resource about Lincoln for both readers of all ages.

Rating: 5/5

Published by Nancy Paulsen Books, an imprint of Penguin Group (USA) Inc., 2012.

Note: You can hear Maira Kalman talking about how she got inspired to write this book, and reading an excerpt here.

And if Maira Kalman could actually meet with Lincoln in real life? On her blog, she explains what she would do:

Review of “Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War” by Mark E. Neely Jr.

The subtitle of this book, “Constitutional Conflict in the American Civil War”, is much more descriptive of its content than its actual title. Only the first third of the book deals with Lincoln’s actions, and even then, much of the constitutional analysis applies to the writings of Lincoln’s contemporaries like Horace Binney, William Whiting, and Sidney George Fisher. In any event, the book’s focus is on the constitutional issues faced by not only the North, but also the issues faced by the Confederate States under their constitution.

The most important question faced by both the North and the South was whether the Southern states could constitutionally withdraw from the Union. Unfortunately, the Constitution itself had nothing to say on the matter. By contrast, even the “feeble” Articles of Confederation had claimed the Union was perpetual. In his inaugural address, Lincoln skirted the constitutional issue, and relied instead on a legal argument: if the Union was merely a contractual arrangement among the states, the South could not unilaterally rescind that contract by secession—it required the assent of the other parties to the contract. Lincoln also contended that the nation antedated the Constitution:

Having never been states, either in substance or in name, outside of the Union, whence this magical omnipotence of “state rights,” asserting a claim of power to lawfully destroy the Union itself?…The states have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence and their liberty. By conquest or purchase the Union gave each of them whatever of independence and liberty it has. The Union is older than any of the states, and, in fact, it created them as states.”

This claim had the advantage of adopting the Declaration of Independence, with its expression that all men were created equal, as a founding document. Famously, Lincoln solidified this vision at Gettysburg, declaring that the nation was created “four score and seven years ago” (the time of the Declaration of Independence) rather than “three score and sixteen years ago” (the time of the adoption of the Constitution).

Lincoln’s construction was not without precedent. In fact, the first Supreme Court Justice, James Wilson, wrote in Chisholm v. Georgia (2 US 419, 465, 1793):

Whoever considers, in a combined and comprehensive view, the general texture of the Constitution will be satisfied that the people of the United states intended to form themselves into a nation for national purposes. They instituted for such purposes a national government, complete in all its parts, with powers legislative, executive and judicial, and in all those powers extending over the whole nation. Is it congruous that, with regard to such purposes, any man or body of men, any person natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national government?”

Lincoln also seemed savvy enough to be aware of the cultural negotiation of both history and memory, and that he could use his facility with words to reframe both of them.

Lincoln deliberately avoided subjecting the question of secession to any court rulings. Instead, the constitutionality of secession was to be decided in presidential speeches, spirited newspaper editorials, widely read pamphlets, and on the battlefield.

1861 tribute to commander of Union forces Gen. Winfield Scott, shown as the mythical Hercules slaying the many-headed dragon or hydra, here symbolizing the secession of the Confederate states.

Lincoln did not trust the Supreme Court at that time. The Court was led by Chief Justice Roger B. Taney, the architect of the infamous Dred Scott decision, about which Lincoln had bruited powerful critiques. Lincoln wanted to avoid giving Taney the opportunity to turn the Court’s authority against him, because the constitutionality of other important issues loomed as well, such as the suspension of the writ of habeas corpus, the power to emancipate the slaves, and the power of the federal government to conscript members of the state militias. Taney had expended significant thought on some of these issues, and Neely says he was “itching to weigh in” on them. He never had the chance, however, because none of them ever reached the Supreme Court during the war.

Chief Justice Roger B. Taney

During the Civil War, the writ of habeas corpus was used to attempt to free two groups of prisoners: (1) “political prisoners,” those jailed for inciting desertion by troops or otherwise “hurting the [Union] army” and (2) underage soldiers who changed their minds about serving in the army. Article I, section 9, clause 2 of the Constitution stated: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” It does not, however, say who or which branch of government (e.g. Congress, the President, Courts) is authorized to do the suspending. Lincoln simply arrogated the power. In the process, he ignored the opinion of Chief Justice Taney in the Ex parte Merryman case, in which Taney opined that only Congress, not the President, could suspend the writ. [Note that Merryman was not an opinion of the full Supreme Court; rather it was simply a writ issued by Taney pursuant to the Court’s original jurisdiction in habeas corpus cases for federal prisoners.] Lincoln’s decision to ignore Taney’s opinion was never tested in court. It became moot at the end of the war.

Lincoln believed emancipation of the slaves was important for the war effort. However, 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. Arguably, the war powers clause authorized the president to commandeer the property of the nation’s opponents, but that right was thought to be limited to actions necessary for victory or the safety of the soldiers. Lincoln could not prove that emancipation was necessary—only that it was useful. Nonetheless, the Proclamation was issued as soon as Lincoln thought it was politically feasible, and it was never challenged in court.

Interestingly, Lincoln feared that the racism of his own troops might render the Proclamation a disadvantage to the Union cause. In the event, the nationalism of the troops trumped (temporarily, at least) whatever racism was prevalent, and the Proclamation did not sow significant dissension in the ranks.

The Union’s power to confiscate Confederate ships pursuant to its blockade was the only major constitutional issue adjudicated by the Supreme Court during the war. Prize Cases of 1863 (67 U.S. (2 Black) 635) questioned whether Lincoln acted within his presidential power when he ordered the blockade of Southern ports in April of 1861, authorizing the seizure of vessels from which revenues could not be collected on account of the “insurrection.” The owners of merchant vessels affected by the blockade sued for the restoration of their property on the ground that blockades were only legal in wartime, but no war had been declared by Congress, as mandated by the Constitution. Lincoln himself refused to recognize the conflict as a “war” (with its implication of two sovereign nations in dispute) rather than a “rebellion” or “insurrection.” In a 5-4 decision, the Court held that the hecatomb taking place could not be ignored. It was just too massive. War may not have been formally declared, but the Court claimed to know a war when it saw one. In the words of Justice Robert C. Grier, “As a civil war is never publicly proclaimed eo nomine against insurgents, its actual existence is a fact in our domestic history which the court is bound to notice and to know.”

Neely calls this decision “the most important Supreme Court decision of the Civil War.” Not only did the Court opine that the war could not be ignored as a fact, but it also disagreed on whether a civil war had to be publicly declared by Congress. James M. Carlisle, representing the ship-owners, insisted that “a war was something declared by Congress, period.” He averred:

The matter then comes back necessarily to the pure question of the power of the President under the Constitution. And this is, perhaps, the most extraordinary part of the argument for the United States. It is founded upon a figure of speech, which is repugnant to the genius of republican institutions, and above all, to our written Constitution.”

Richard Henry Dana, Jr., for the government, countered with the winning argument that war was “a state of things” and “not an act of legislative will.”

It’s a fascinating case, and still is relevant today. [For example, does the current confrontation with Al Qaeda trigger the president’s war powers?]

The Democrats also mounted an attack on the government’s war measures in state courts, where they expected a friendlier reaction than in federal courts. Their effort was unsuccessful, according to Neely, because the war ended before the cases could be resolved. He states, “[T]he nation was saved from violent confrontation with willful judges by the slowness with which the wheels of justice turned in the middle of the nineteenth century.”

More than 30% of the book is devoted to the issues faced by the Confederate states under their constitution. The Confederacy was formed by a process nearly identical to the process that formed the original United States. Each rebellious state held a “constitutional convention” that was outside of and in addition to its established state government. Neely asserts that the elections for the secession conventions were especially clean by the standard of the time, with a distinct absence of fraud or strong-arm tactics. The movement to secede, in Neely’s words, was “profoundly democratic.” [It might be suggested that because of the near unanimity of the sentiments of those attending the conventions, there was no need for fraud. However, fraud returned to southern elections in full flower after the war ended, especially with the prospect of freed black men and other republicans gaining political office.]

Although the Confederate constitution borrowed heavily from the federal constitution, each seceding state retained more autonomy under it than it had under the federal constitution—no surprise there. The government that resulted was not highly authoritarian, as one might expect from one led by slaveholders. Rather, it was very democratic in the sense the modern Israeli government is democratic: its constitution speaks of giving all its adult citizens equal rights [the Confederacy limited those rights to males], yet it blithely ignores the presence of a large minority who live within its jurisdiction, but who are accorded few if any rights.

The secession conventions produced constitutional crises of their own. Both the formerly legitimate state governments and the secession conventions continued to act, each ostensibly the sovereign power. Thus, every southern state had two separate governments claiming ultimate authority. Nevertheless, with the exception of South Carolina, the states resolved the problem pretty much without rancor and never with violence. Neely writes,

…some states simply enjoyed the fruits of the emergency actions of the conventions, including the democratization of war by ensuring that the men who fought for the slaveholding republic…could vote in [military] camp….Had the Confederacy prevailed…it would doubtless celebrate that period of government by secession conventions as the United States does today the 1787 Philadelphia constitutional convention.”

Neely raises interesting questions in comparing the Confederate and federal constitutions. For example, why did the Confederacy chose to emulate the federal form so closely? (The President even had a “white house” of his own.) He also notes that Jefferson Davis, like Lincoln, suspended the writ of habeas corpus, and even (near the end of the war) – out of desperation – considered arming at least some of the slaves.

White House of the Confederacy in Richmond

Part of Davis’s problem was that the central government of the Confederacy was not as strong or centralized as that of the Union. Although there were Confederate national courts, there was no Supreme Court. The founders of the Confederacy were always troubled by their need to accommodate state rights with an expanded federal authority necessary to fight a war. Southern governors jealously guarded their state militias, and did not necessarily want them subject to conscription into the national army. The issue of conscription was tested in several state courts. Some lower courts found conscription illegal, but all the state supreme courts upheld its legality on appeal. Curiously, the Confederate national courts seem never to have organized a reporting system; thus their national courts never could exert their proper influence on state decisions.

Confederate President Jefferson Davis

Neely observes that the Confederacy faced issues remarkably similar to those faced by the United States in the War of 1812. There, the New England states opposed the use by the federal government of New England militias to launch an invasion of Canada.

He concludes by exhorting his fellow historians to begin a “series of titles, beginning with ‘Constitutional Problems under Madison’ and stretching through all of our wars until we have accumulated a shelf of volumes that reconsider the role of the Constitution in America’s wars.”

Evaluation: In only 349 pages, this book contains some very meaty legal analysis. Moreover, even though there is a paucity of case law during the relevant time period, the book also contains some very thoughtful constitutional analysis of issues faced by both the Union and the Confederacy. Interestingly, much of the contemporary analysis came from newspaper editorials and impressively trenchant political pamphlets. Neely’s scholarly prose is readable despite the density of his subject matter, and he avoids sounding too lawyerly. I highly recommend this book for anyone with a serious interest in our constitutional history.

Rating: 4/5

Note: The author won the 1992 Pulitzer Prize for his book The Fate of Liberty: Abraham Lincoln and Civil Liberties. This book was awarded the Lincoln Group of New York Award of Achievement for 2011.

Published by The University of North Carolina Press, 2011

Review of “Rise to Greatness: Abraham Lincoln and America’s Most Perilous Year” by David Von Drehle

Von Drehle argues that 1862 was the most important year in the history of our nation, and he does so quite persuasively.

Many of Lincoln’s tasks after the onset of the Civil War involved appeasement: he had to make sure the touchy border states remained in the Union [ergo he could not speak out too forcefully for emancipation]; he had to make sure Britain and France did not join the war on the side of the South [thus his capitulation on the so-called “Trent Affair”) and he had to ensure that the Chief Justice of the Supreme Court, Roger Taney (author of the notorious Dred Scott decision declaring that African Americans could never be considered U.S. citizens) did not thwart his military plans to protect the North by using what could be considered extra-Constitutional actions. Moreover, the Army, which numbered only 16,000 men before the war (and these men were spread out all over the continent), had been rapidly increased to nearly five times that number. But none of them knew how to fight! Nor did most of the men picked to lead them. Somehow Lincoln had to figure out which of these novices had the makings of generals who could lead the North to victory.

Needless to say, it took Lincoln a while to accomplish this last, especially since he had to take great care not to alienate all the supporters (among whom numbered many soldiers) of the infuriating and perhaps even treasonous George McClellan. But Lincoln was one of the few men in a leadership position at the time who was willing and able to take the long view, and to keep his eye on the prize, which was preservation of the Union.

Excerpt of Letter to Horace Greeley printed August 22, 1862

Why was this so important? Lincoln believed the American nation, with its bestowal of power upon ordinary people to elect its government (i.e., the doctrine of self government), was “absolutely and eternally right.” Furthermore, he could conceive of no government more noble than one “dedicated to the proposition that all men are created equal.” He could find no moral right in the despotism of men not only governing themselves but governing other men. But he knew a critical factor determining the success of this experiment was assurance to the citizenry that losing voters would not and could not destroy the system just because they lost. Like a marriage, any union won’t work when the parties say “I’m getting a divorce” every time something doesn’t go their way. Compromise is the key to maintaining any union worth having, and Lincoln believed firmly that the United States – this great experiment – should not perish from the earth.

[And yes, there was a slight problem with the reality of the nation as it was then constituted not living up to the promise, since some men were more equal than other men, and certainly more equal than women.] Lincoln begged his audience, in an 1858 debate against Stephen Douglas:

Now, my countrymen . . . if you have been taught doctrines conflicting with the great landmarks of the Declaration of Independence; if you have listened to suggestions which would take away from its grandeur, and mutilate the fair symmetry of its proportions; if you have been inclined to believe that all men are not created equal in those inalienable rights enumerated by our chart of liberty, let me entreat you to come back. Return to the fountain whose waters spring close by the blood of the Revolution. Think nothing of me—take no thought for the political fate of any man whomsoever—but come back to the truths that are in the Declaration of Independence. … I am nothing; Judge Douglas is nothing. But do not destroy that immortal emblem of Humanity—the Declaration of American Independence.”

Lincoln intended to help the nation “heed these sacred principles.” But he could not do it unless the “nation so conceived and so dedicated” were still in existence. This concern dictated all of his strategy, all of his decisions, all of his tactics, and it is this long-term vision that so many others in the government were unable to realize.

They also were not nearly as savvy as Lincoln about realpolitik. Lincoln felt he couldn’t just get rid of Simon Cameron, his corrupt and incompetent Secretary of War, or he would create a dangerous enemy and hopelessly alienate Pennsylvanians; nor could he just get rid of Samuel Chase, whose over-the-top politicking for Lincoln’s job outraged everyone but Lincoln – he needed Chase’s financial prowess to raise the money to fight the war. Nor could Lincoln satisfy Congress by firing George McClellan, the do-nothing general who consistently snubbed, insulted, and disrespected Lincoln. McClellan was far too popular among the troops; Lincoln knew better than to lose the loyalty of the army. He could not even appease the abolitionists by outlawing slavery just yet – the preservation of the union had to take precedence.

Lincoln with McClellan at Antietam, 1862

Again and again, Lincoln was able to push aside and rise above personal snubs, Congressional pressure, embarrassment over his wife’s questionable friendships with Confederates, and all the rest, to save the Union. Lincoln said:

Perhaps I have too little [resentment], but I never thought it paid.”

This remarkable man had a remarkable year in 1862. As Drehle writes:

…when the first day of January [1863] came around again, Lincoln’s greatness was no longer raw. Even as he had redefined American society, he had invented the modern presidency. He had steered himself and the nation from its darkest New Year’s Day to its proudest, and in the process Lincoln had become the towering leader who forever looms over the rebirth of the American experiment.”

Evaluation: You have to admire the author for undertaking this book. As he observed in his Note on Sources, “the sheer volume of material, both primary and secondary… is so vast that dropping into the subject as a writer is like falling into the sea.” Yet he succeeds admirably, providing a month-by-month account of Lincoln’s life in 1862 that puts us right into the thick of the times with a welcome lack of turgidity and tedium. Obviously the author could not include everything; new students of Lincoln may want to start with a more comprehensive biography. But for those who know even the bare outlines of Lincoln’s life and the politics surrounding it, this book provides a lively and always-interesting focused look at one of the most important years in America’s history.

Rating: 4/5

Published by Henry Holt and Company, 2012

Is a Slavery Reparations Case Practicable?

The House Girl is yet another novel that juxtaposes a contemporary story with a linked plotline from the past. It is a tricky balancing act for the author to ensure that both stories are of equal interest.

Lina Sparrow is a first year litigation associate in a high-powered New York City law firm. Although 24 and attractive, she doesn’t have much of a personal life, since her law firm career demands so much of her time. She still lives with her father, Oscar, who is a well-known artist.

Josephine Bell, seventeen in 1852 and serving as a house slave in Lynnhurst, Virginia, is also an artist. Her master, Missus Lu, sometimes allows her to paint with her in her studio. Now that Missus is “feeling poorly,” she even asks Josephine to help complete her own paintings, because her hand has become too unsteady.

As the story opens, Lina’s “mentor partner” at Clifton & Harp, Daniel Oliphant III, pulls her into a big new case brought by a wealthy African American client, Ron Dresser. Dresser wants to sue for reparations on behalf of the ancestors of slaves, claiming that trillions of dollars in unpaid wages resulted in unjust enrichment for private companies benefiting from slave labor before the passage of the Thirteenth Amendment. Lina’s assignment is, per Dan, to “get ourselves a great lead plaintiff:

I want something stirring, a new angle, something compelling. And don’t forget photogenic – these people will be on TV, they’ll be in the papers, they’ll be giving interviews. We need some great people, Lina, some great stories.”

The lawsuit provides an excuse for Lina to read about (and share with us) the history of slave exploitation of labor.

Thanks to her artist dad, Lina discovers the slave Josephine as a potential source for a “colorful” angle, if only she can find a descendant. A series of very unlikely and improbable developments enable her to learn many details that not only advance her case, but also allow her to locate the perfect plaintiff. Everything gets wrapped up in the end, but not neatly, and even somewhat bizarrely.

Discussion: In many ways Josephine’s story is infinitely more interesting than Lina’s, but I don’t have a sense of how historically realistic Josephine’s story may have been, nor how authentic her voice seems. On the other hand, Lina’s account of life in a top-ranked, competitive law firm rings very true. I laughed out loud at Lina’s comparison of law firm time to casino time, and at the way she thought of everything she did in six-minute intervals.

But some of the coincidences and dei ex machina in the story strained credulity. And some of Lina’s actions seemed markedly inconsistent with her character portrayal. Most perplexing to me, however, was the lawsuit that formed the backbone of the story.

I was surprised, maybe astounded even, that the lawsuit for reparations for unjust enrichment was defined as having an end point of 1865. In fact, prior to 1865, slavery was legal. After 1865, on the other hand, slavery continued in the South by surreptitious means, and it is then that companies truly could be culpable for unjust enrichment.

[See, for example, the Pulitzer Prize winning book Slavery By Another Name by Douglas A. Blackmon who analyzes why blacks did not rise in American society after emancipation until the Civil Rights Movement of the 1960s. Using extensive documentation, he demonstrates that long past the time of the Civil War, slavery was actually still alive and well in the South in all but name, with active support of the state and federal governments.

Here’s how it worked:

"By 1900," Blackmon writes, "the South's judicial system had been wholly reconfigured to make one of its primary purposes the coercion of African Americans to comply with the social customs and labor demands of whites." Thousands of random indigent black men were arrested for anything from unemployment, to not being able to prove employment at any given moment, to changing employers without “permission”, or even loud talk. In other words, they were arrested for being young black men. They were sentenced to hard labor, and bought and sold by sheriffs and judges among other opportunists to corporations such as U.S. Steel, Tennessee Coal, railroads, lumber camps, and factories. The prisoners who were sent to mines were chained to their barracks at night, and required to work all day – “subject to the whip for failure to dig the requisite amount, at risk of physical torture for disobedience, and vulnerable to the sexual predations of other miners – many of whom already had passed years or decades in their own chthonian confinement.” Hundreds died of disease, accidents, or homicide, and in fact, mass burial fields near these old mines can still be located.

Blackmon charges that the desire to industrialize the South quickly was central to the restrictions put in place to suppress blacks, since these laws allowed for easy arrest and enslavement of workers. He avers:

Repeatedly, the timing and scale of surges in arrests appeared more attuned to rises and dips in the need for cheap labor than any demonstrable acts of crime.”

But also, and quite importantly, “these bulging slave centers became a primary weapon of suppression of black aspirations.” Millions of blacks lived in a shadow of fear that they or their family members would be taken into this system. It had a profound effect on their behavior and self-esteem.

Blackmon insists that any consideration of the progress of blacks in the United States after the Civil War must acknowledge that "slavery, real slavery, didn't end until 1945." (See the author’s website here for more information and documentation.)]

Thus the parents of today are the children of those who suffered under this egregious system, and so it can be expected that the repercussions continue to inform the expectations and attitudes of those who grew up with the stories and experiences derived from this very recent chapter in their family histories. And, one might argue, it could be expected that a serious reparations case would focus on this phenomenon (never mentioned in the book), for which plaintiffs would have a much better case than when slavery was not prohibited by the Constitution.

Evaluation: The intertwined stories of this book are definitely compelling, even if there are some plausibility issues, especially in the Lina sections of the book.

Rating: 3.5/5

Published by William Morrow, an imprint of HarperCollins Publishers, 2013

When The Judge is an Inquisitor: Summary of “The Earth Moves: Galileo and the Roman Inquisition” by Dan Hofstadter

In the introductory Author’s Note to The Earth Moves, Dan Hofstadter claims that he is “primarily interested in the arts” rather than the sciences, and that “Galileo’s position within the general context of Baroque civilization has not much concerned historians of science.” Hofstadter promises to “offer a brief picture” of that position. Instead, he devotes only a small portion of his narrative to placing Galileo into the context of the Baroque, but he does produce a taut, almost lawyer-like description of Galileo’s famous confrontation with the Inquisition.

Modern dramatists like Bertolt Brecht have portrayed the proceedings before the Roman Inquisition as a sort of 17th century Scopes monkey trial, where science confronted irrational religion and Biblical literalism. Hofstadter demonstrates that this approach makes for good theater but inaccurate history.

Most modern readers may not be aware of the sequence of the key events that led to Galileo’s dispute with his church. Keep these dates in mind as you read what follows:

1517: Martin Luther publishes his 95 Theses, initiating the Protestant Revolution and emphasizing the ability of individuals to interpret the Bible.

1543: Copernicus (a Polish Catholic priest) publishes De Revolutionibus Orbium Coelestium, (On the Revolution of the Heavenly Spheres) proposing a model of the cosmos with the sun rather than the earth at its center.

1545-1563: The Council of Trent initiates the Catholic Church’s Counter Revolution, responding to the Protestant Revolution, and rules that only theologians, and not members of the laity, could interpret the Bible.

1609: Galileo builds some of the first powerful telescopes, enabling him to see that the surface of the moon was not smooth, that Venus exhibited phases like the moon, and that Jupiter had at least four moons of its own.

Note that the Copernican model of the cosmos had been known and discussed in intellectual and astronomical circles in Europe for 66 years when Galileo first turned his telescopes to the heavens.

Galileo did not invent the telescope, but he built far better instruments than any of his contemporaries. Hofstadter goes into substantial detail to show how Galileo’s design improved upon his predecessors’. He also shows that Galileo’s were difficult to use. Moreover, Galileo was loath to allow others to use his instruments because there was no strong intellectual property protection available, and he feared others would copy his designs and erode his near monopoly. Thus Galileo was able to see things that his rival scientists and churchmen could not see.

Galileo’s telescope (Picture from Museum of Science, Florence)

The Catholic Church took the position the heliocentric model of the cosmos was contrary to scripture, which in several places describes the sun as moving around the earth from east to west, except for the notable exception when it stopped in its path to enable Joshua to complete his conquest of Jericho.

Galileo’s telescopic discoveries did not actually prove the heliocentric model, but it did enhance the model’s plausibility. The mountains and valleys he saw on the moon showed that Aristotle’s conception of the heavenly bodies as perfect crystalline spheres was incorrect. The phases of Venus made more sense if it were rotating around the sun rather than the earth. And Jupiter’s moons clearly showed that at least four heavenly objects revolved around something other than the earth.

Galileo’s journal entries describing his revolutionary discovery of four moons orbiting Jupiter, from NASA science education site

In any event, by 1616 the Inquisition became concerned about some of Galileo’s discoveries and essays sympathetic to the idea of the earth’s motion. They issued a decree condemning Copernicanism as “foolish and absurd in philosophy, and formally heretical” because it contradicted scripture. They were suspicious of Galileo’s thinking on this matter even though he had not published an explicit defense of Copernicus. [A private letter he wrote in 1613 indicates that he was a convinced Copernican.] Cardinal Bellarmine was intelligent enough to understand that the Copernican model was simpler and mathematically more elegant than the earth centric (Ptolemaic) model. Yet because of the scriptural references, he felt that the Church could not adopt a new model unless the proof for it was incontrovertible. He warned Galileo that he could look at the heliocentric model as a mathematical curiosity that could be considered “suppositionally,” but he admonished the scientist not to hold, teach, or defend it.

Galileo was headstrong and truculent, and he was convinced that the heliocentric model was correct. Moreover, he was a better theologian than anyone in the Roman curia at the time. He remained a devout Catholic, but he argued that the Bible was written for simple people as well as for sophisticated intellectuals and that men could divine God’s plan through His works as well as through His words. If God’s words (scripture) seemed to contravene what was manifest in His works, the words would have to be interpreted in some non-literal way.

In 1632 Galileo published Dialog Concerning the Two Chief World Systems. In order to pass censors, the book takes the form of a Platonic dialog in which the interlocutors discuss the relative merits of the Ptolemaic and heliocentric models of the cosmos. However, the spokesman for the Ptolemaic model is clearly a simpleton (named, aptly, Simplicio), whereas the spokesman for the Copernican model is erudite and trenchant.

The Roman inquisitors were not so naïve that they could not infer the obvious thrust of Galileo’s arguments. Accordingly, they demanded that he appear before them. If the Inqusition’s procedures had been anything like an American court’s, the stage would have been set for a dramatic confrontation of ideas. However, as Hofstadter points out, the Inquisition had no interest in debating the relative scientific merits of either position. It mattered not one whit to the Inquisitors whether Galileo’s scientific position was correct. The only issue before them was one of obedience: did he “hold, teach, or defend” the Copernican view. And if they found that he had had the temerity to attempt to interpret the Bible, he would be guilty of violating the teachings of the Council of Trent.

Hofstadter asserts that Galileo was naïve to think that he could convince the Inquisitors through the strength of his scientific arguments. Indeed, the records of the proceedings contain only a few desultory references to the merits of the scientific issues. The only thing that injected some doubt into the outcome was some political maneuvering Galileo’s friends attempted to influence the pope. Fortunately for Galileo, he was not charged with heresy, a capital offense, but merely “rashness,” a lesser offense. The verdict was never really in doubt, but the punishment was less severe that it might have been. Because he ultimately recanted and admitted his “error,” Galileo was only confined to a sort of house arrest for the rest of his life.

Holy Relic of Science: Galileo’s finger, on display at the Museo di Storia del Scienza in Florence, Italy

Evaluation: Hofstadter’s book is even-handed, thorough, and sympathetic. He shows Galileo in all his brilliance and pig-headedness. As promised in the introduction, he makes a small effort to set the Galileo trial in the context of the Baroque period of art, with references to the construction of great domed cathedrals, but I’m not sure these references contribute much to the story. He is, however, effective in showing that the Copernicans had difficulty in overturning not only Ptolemy’s cosmology but also the world-view of Dante’s Divine Comedy, which was shared by most people of the time. In all, this is a solid historical narrative and a good introduction to an important event in the history of science and its relation to religion and the law.

Rating: 4/5

Published by W. W. Norton & Company, inc., 2009

Legal Restrictions – Living Within Them and Living Around Them – A Story About the Rothschilds

Mayer Amschel Rothschild, born in 1744, started the famous banking house that, seven generations later, remains a major international player in venture capital and financial engineering. But Rothschild was born in a Jewish ghetto in Frankfurt, a place that was subject to strict laws by the city restricting the behavior of its inhabitants.

Robert Mayer, author of The Origin of Sorrow, reports that while reading about the founding members of the Rothschild dynasty, he became interested in what the first Mrs. Rothschild must have been like. He couldn’t find out much about her, so he decided to write the book on her himself.

This book is set in the late 1700’s in the Judengasse, the notorious ghetto of Frankfurt. [Jewish communities were confined after being blamed in most of Europe for the Black Death, in spite of the fact that Jews were victims of the Plague like any other group.] Incredibly enough, this is the place where Mayer Rothschild got his start. All Jews were required to live within the walls of this ghetto, although men could go outside if they had approved business, but the gates were locked at 5 p.m. Visitors passed through one of three guarded gates; the main gate – erected by the city of Frankfurt – featured a famous “artistic” rendering called the Judensau, constructed sometime between 1475 and 1507. As Niall Ferguson describes it:

An obscene graffito on the wall, it depicted a group of Jews abasing themselves before–or rather beneath and behind–a fierce sow. While one of them suckled at her teats, another (in rabbinical garb) held up her tail for the third (also a rabbi) to drink her excrement. The “Jews’ devil” watched approvingly.”

The Frankfurt “Judensau”. Copperplate engraving in Johann Jacob Schudt’s “Jüdische Merckwürdigkeiten”, Frankfurt 1714

In the picture, the Jews are being egged on by the devil himself, who is portrayed with the same facial traits as the Jews, implying similar origins. [The Judensau was revived by the Nazis, now using the double meaning that Jews are pigs. A drinking song of the early 1920s included the words: "Knallt ab den Walther Rathenau, Die gottverfluchte Judensau" (Shoot down that Walther Rathenau, The goddamned Judensau)]

The City of Frankfurt regulated much of the lives of the Jews in the ghetto. Men were not allowed to marry until the age of 25, to cut down on the rate of Jewish births. This was not such a bad idea considering that the ghetto consisted of a single lane only: a quarter of a mile long and from ten to twelve feet wide (with a sewage ditch the whole way down its length). But by the mid-1770’s there were already more than 3,000 people living on the lane in a space originally intended for 300. How did they all fit? Most houses were no more than eight to ten feet wide, and there were two rows of them. The Jews could build upward, but windows that looked out over the walls had to be boarded up by law. As a result of the tall, multifamily houses over a single lane, the Jews never could see the sun except for the few minutes it was directly over the lane in between the houses, and subsequently the Jews became known for their pale, pale complexions!

The confined quarters of the Judengasse plays a large role in the book, as it played a large role in the lives of those who lived within its walls.

Frankfurt Judengasse in a 1628 map. The Judengasse runs vertically down the middle of the map. You can see the gates at the top and bottom of the map.

The focus of the story, besides the Judengasse itself, is Guttle Schnapper, the young girl who won the heart of Meyer Amschel Rothschild. They married in 1770 when Guttle was seventeen. They had ten children who survived to adulthood (and at least seven more who didn’t). In this book, Meyer remains largely in the background. This is Guttle’s story, as imagined by the author. He envisions her as way ahead of her time in some ways, but stubbornly tied to the past in others.

Most of the narrative concerns Guttle as a young girl before and for a short time after her marriage to Meyer. A nice epilogue fills us in on what happened toward the end of Guttle’s life, long after Meyer had died. (She survived him by thirty-seven years, and refused to leave their house in the Judengasse.)

Things I liked:

The author does a great service in incorporating a very accurate portrayal of the Frankfurt Jewish ghetto into his novel, thus introducing this remarkable community and its environment to readers who eschew non-fiction. “What a setting for a novel,” he said in an interview, and on that I quite agree.

Furthermore, the Rothschilds are inherently interesting: how was it that a boy from “perhaps the most oppressive place for Jews in Western Europe” (as historian Amos Elon characterized it) came to be ranked 7th on the Forbes Magazine list of “The Twenty Most Influential Businessmen Of All Time” and a “founding father of international finance”?

Mayer Amschel Rothschild

Additionally, how and why women adjusted to the conditions for women in the 18th century Jewish community (and even today to some extent among Orthodox Jews) is also of interest to me, and I think the author does a good job of bringing this situation to the front and center of the book. (“good job” to me equals the extent to which it caused me to go off on rants about treatment of women by men using religion as a justification for their behavior.)

Things I didn’t like:

Generally, I prefer for historical fiction to evoke real times or events but not real people; I’ve always thought it muddies the waters too much. Certainly there could be an exception for historical figures about whom we know little. But I think that the author therefore has an obligation to attach notes or an appendix of some sort to indicate what is fiction and what is documented. Furthermore – and especially if there is no such author explanation – I prefer that the author not mess with known facts, because that only ruins his or her credibility for me with the rest of the story.

Some of the historical figures added to the mise-en-scène in the Judengasse were not actually there at the time of the story. For example, Mayer Rothschild had been dead for forty years before Isidor Kracauer, the famed historian of the ghetto, was even born. [Kracauer was born in 1852 in Silesia but came to Frankfurt in 1875 and there produced a two-volume work entitled “Geschichte der Frankfurter Juden.” He died in Frankfurt in 1923.] Yet Isidor is portrayed as a peer of Guttle’s.

Isadore Kracauer

In addition, there really was a youth named Hirsch Liebmann who stole money from Rothschild, but Mayer opted to add a rather unlikely and unsavory embellishment to the relationship. I couldn’t figure out what the rationale was for the author to tarnish Rothschild that way.

The Jews in the Frankfurt ghetto spoke Judendeutsch, which was a medieval German dialect mixed with Hebrew. This was not the same as the Yiddish of Polish and Russian Jews, but I don’t know enough about the differences to make specific comments on the appropriateness of the Yiddish used in the story. But I am not convinced the author does either. Nevertheless, the author has the characters occasionally using Yiddish words that modern Americans might know and use, but which seem unlikely to have been used in the 18th Century Judengasse. [Leon Wieseltier recently made a snarky, but apt, I think, comment in an essay on an analogous translation from Hebrew that kept some Hebrew words in the text: “This preservation of a few Hebrew words in English discourses on Jewish subjects is an American Jewish characteristic, the compromise of a community that is delinquent about its linguistic patrimony.”] At any rate, the insertion of those words seemed jarring enough to take me out of the story.

Picture of part of a letter written in Judendeutsch by one of Rothschild’s sons, from a BBC feature on the Rothschilds.

The possibly apocryphal story of what happened when Moses Mendelssohn entered the Berlin ghetto at age 14 (in 1743) is so well-known that I thought it absurd for the author to have changed the episode to make it occur in Frankfurt many years later. Clearly he wanted to have Mendelssohn be a part of the lives of the Rothschilds, perhaps in order to bruit the ideas of Mendelssohn. But he didn’t need to change the facts around so much to do so. Likewise, it takes “chutzpah” (as the author might say) to include fictional letters from, and conversations with the great philosopher.

Moses Mendelssohn

The author often has Guttle sing arias, which she “invented as she sang,” to express her feelings. This didn’t seem realistic to me. Furthermore, Mayer makes much of the courtship of Rothschild and Guttle, but their marriage was an arranged one.

Evaluation: Mayer brings the Judengasse to life, and makes an interesting case through his imaginings for what the young girl must have been like who was the devoted wife of the man, and mother of the men who changed the Western world. He also shines a light onto the means by which at least some people who were so legally restricted in every aspect of their lives managed to circumvent the walls (both literal and figurative) around them and succeed beyond their wildest dreams.