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

July 18, 1909 – Birthdate of Andrei Andreyevich Gromyko

On this day in history, Andrei Gromyko was born to a poor “semi-peasant, semi-worker” (i.e., politically correct) family in the Belarusian village of Staryja Gramyki. Gromyko rose to become Soviet Minister of Foreign Affairs (1957–1985) and Chairman of the Presidium of the Supreme Soviet (1985–1988). He was responsible for many top decisions on Soviet foreign policy until his retirement in 1988. Western pundits called him Mr. Nyet (“Mr. No”) or “Grim Grom,” because of his frequent use of the Soviet veto in the UN Security Council.

Andrei Gromyko, 1975

Andrei Gromyko, 1975

Dr. Henry Kissinger spoke fondly of Gromyko (who died in 1989) at remarks delivered at UN Headquarters during a round table dedicated to the centennial of Andrei Gromyko, calling him “adversary, colleague and friend, all in one.” He added:

The impression that Andrei Gromyko made was of a very dour individual, very professional, very correct, and that is true. That’s what he was. But I would like to add to that: highly intelligent, always prepared, never lost his composure. He had a terrific sense of humor, which was not obvious right away, but once one got to know him, it was of extraordinary help in conducting our dialogue.”

U.S. Secretary of State Henry Kissinger (L) and Soviet Foreign Minister Andrei Gromyko exchange toasts in Moscow in 1974 UPI/File

U.S. Secretary of State Henry Kissinger (L) and Soviet Foreign Minister Andrei Gromyko exchange toasts in Moscow in 1974 UPI/File

As an example of his sense of humor, Kissinger offered this anecdote:

When we were in Moscow in the summit of 1972, I said to him, ‘Mr. Foreign Minister, our Xerox machine broke down. If I hold these documents up to the ceiling, would you give me a copy of what you photograph?’ And he said, ‘I’d like to, but the cameras were installed by the czars. They’re good on people; they’re not good on documents.’”

July 17, 1917 – The House of Windsor is Born

On this day in history, King George V changed the name of the British Royal House from the “House of Saxe-Coburg and Gotha” to the “House of Windsor.”

In March of that year, London had been bombed by a heavy aircraft from Germany named the Gotha G. IV. The inclusion of “Gotha” as part of the name of the King’s dynasty was no longer acceptable.

It was allegedly Lord Stamfordham, the king’s private secretary, who came up with the Shakespearean-sounding alternative to the very politically incorrect German name. The name Windsor already had a long association with British royalty, as one of the royal residences was called Windsor Castle, after the town in which it was built. The original castle was built in the 11th century after the Norman invasion by William the Conqueror. Since the time of Henry I, it had been used by succeeding monarchs. Today it is the longest-occupied palace in Europe.

After the King changed his name, he also persuaded his relatives to Anglicize their names and titles, so that, for example, the Battenbergs became the Mountbattens.

Cartoon from Punch, 1917

Cartoon from Punch, 1917

July 16, 1945 – First Atomic Bomb Explosion

Trinity was the name of the site given to the location of the first test of a nuclear weapon conducted by the United States. Trinity is in New Mexico, in that portion of the desert known as the Jornade del Muerto, or Journey of Death. It lies 35 miles southeast of Socorro near Alamogordo.

Trinity, 0.016 seconds after detonation

Trinity, 0.016 seconds after detonation

The director of the “Manhattan Project” which developed the bomb at Los Alamos, New Mexico was Robert J. Oppenheimer. He named the site Trinity after the fourteenth of John Donne’s Holy Sonnets, which begins, “Batter my heart, three person’d God.”

The bomb went off at 5:29:45 a.m. on July 16, 1945. Gerard J. DeGroot, in his history of the bomb, The Bomb: A Life, writes, “The sun had been briefly recreated on earth. A colony on Mars, had such a thing existed, could have seen the flash. Elizabeth Ingram was traveling in a car when her sister suddenly shouted ‘What was that light?’ Her sister had been blind since childhood.”

425 men were present as witnesses when the atomic bomb exploded. Most observers were well past 10,000 yards from the detonation, which was equivalent to the explosion of around 20 kilotons of TNT. (Around 100 scientists entered a betting pool at a dollar a bet on the yield of the bomb, which was unknown before the test.)

Kai Bird and Martin Sherwin, in their masterful biography of Oppenheimer, American Prometheus, recorded Oppenheimer’s recollections of the detonation in a 1965 NBC documentary:

We knew the world would not be the same. A few people laughed, a few people cried. Most people were silent. I remembered the line from the Hindu scripture, the Bhagavad-Gita; Vishnu is trying to pursuade the prince that he should do his duty, and to impress him, takes on his multi-armed form and says, ‘Now I am become death, the destroyer of worlds.’ I suppose we all thought that, one way or another.”

Trinity Test Director Kenneth Bainbridge’s comment was more prosaic: “Now we are all sons of bitches.”

Fallout in Röntgens around the Trinity site.

July 15, 1964 – Details of Harassment of Black Voting Registration in Mississippi

On this day in history, just fifty years ago, the weekly newspaper of The Student Nonviolent Coordinating Committee (SNCC) published a not-terribly-unusual roundup of violent reactions to attempted voter registration by blacks in Mississippi. A partial reproduction of the list is shown below. You can read more of this terrible and heartbreaking legal legacy here.

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July, 1845 – John L. O’Sullivan Advises Americans of Their “Manifest Destiny”

In the July–August 1845 issue of the Democratic Review, John Louis O’Sullivan published an essay entitled “Annexation,” advocating that the U.S. admit the Republic of Texas into the Union. O’Sullivan argued that the United States had a divine mandate to expand throughout North America, writing of “our manifest destiny to overspread the continent allotted by Providence for the free development of our yearly multiplying millions.”

John L. O'Sullivan as he appeared on the cover of Harper's Weekly in November 1874

John L. O’Sullivan as he appeared on the cover of Harper’s Weekly in November 1874

The phrase didn’t really catch on however until another article of O’Sullivan’s appeared in the “New York Morning News” on December 27, 1845. In this instance, he was justifying the American claim to Oregon, averring:

…that claim is by the right of our manifest destiny to overspread and to possess the whole of the continent which Providence has given us for the development of the great experiment of liberty and federated self-government entrusted to us.”

This is not the first time a religious justification had been used to support land expansion. John Quincy Adams firmly believed that territorial expansion across the whole continent of North America was “destined by Divine Providence.” As Secretary of State, his views helped guide the policies of President James Monroe. It was the diplomacy of Adams’ that was largely responsible for the U.S. acquisition of Florida and the U.S. assumption of Spain’s claim to the Oregon country. The 1823 Monroe Doctrine, formulated by Adams, warned Europe that the Western Hemisphere was no longer open for European colonization. However, Adams had not employed the catchy phrase, “manifest destiny.” Moreover, the possibility of a continental republic seemed much more possible in the 1840’s than it had earlier.

westward

July 9, 1799 – George Washington Signs His Last Will and Testament

On this day in history, George Washington declared a Last Will and Testament, in which he bequeathed his Estate to his wife Martha. More importantly, he wrote in detail about the disposition of his slaves, including the following:

Upon the decease of my wife, it is my Will & desire that all the Slaves which I hold in my own right, shall receive their freedom. To emancipate them during her life, would, tho’ earnestly wished by me, be attended with such insuperable difficulties on account of their intermixture by Marriages with the dower Negroes, as to excite the most painful sensations, if not disagreeable consequences from the latter, while both descriptions are in the occupancy of the same Proprietor; it not being in my power, under the tenure by which the Dower Negroes are held, to manumit them. And whereas among those who will recieve freedom according to this devise, there may be some, who from old age or bodily infirmities, and others who on account of their infancy, that will be unable to support themselves; it is my Will and desire that all who come under the first & second description shall be comfortably cloathed & fed by my heirs while they live; and that such of the latter description as have no parents living, or if living are unable, or unwilling to provide for them, shall be bound by the Court until they shall arrive at the age of twenty five years; and in cases where no record can be produced, whereby their ages can be ascertained, the judgment of the Court, upon its own view of the subject, shall be adequate and final. The Negros thus bound, are (by their Masters or Mistresses) to be taught to read & write; and to be brought up to some useful occupation, agreeably to the Laws of the Commonwealth of Virginia, providing for the support of Orphan and other poor Children. and I do hereby expressly forbid the Sale, or transportation out of the said Commonwealth, of any Slave I may die possessed of, under any pretence whatsoever. And I do moreover most pointedly, and most solemnly enjoin it upon my Executors hereafter named, or the Survivors of them, to see that this clause respecting Slaves, and every part thereof be religiously fulfilled at the Epoch at which it is directed to take place; without evasion, neglect or delay, after the Crops which may then be on the ground are harvested, particularly as it respects the aged and infirm; seeing that a regular and permanent fund be established for their support so long as there are subjects requiring it; not trusting to the uncertain provision to be made by individuals.”

This is a great document, and worth reading to get the measure of the man, especially in comparison to the author of the famous declaration that “all men are created equal,” i.e., Thomas Jefferson, who only stipulated that five slaves out of all of them were to be freed upon his death (and all of them were from the Hemings family).

You can read the entire document here. You can also read more about the Dower Law that inhibited Washington’s actions with regard to slavery here.

George Washington by Gilbert Stuart

George Washington by Gilbert Stuart

July 5, 1914 – Kaiser Wilhelm II Promises German Support for Austria Against Serbia

On this date in history, one week after the assassination of Archduke Franz Ferdinand of Austria, the heir to the throne of Austria-Hungary, Germany took a critical step necessary for Austria to declare war on Serbia.

Less than a week after Franz Ferdinand’s murder, the Austrian Foreign Ministry sent an envoy to Berlin to press the case for action in the tumultuous Balkans region, as well as a personal letter to the same effect from Austria-Hungary’s Emperor Franz Josef to Kaiser Wilhelm.

Emperor Franz Joseph

Emperor Franz Joseph

The Emperor, in his letter, accused France and Russia of conspiring against the Triple Alliance (Germany, Austria-Hungary, and Italy), stating that “those in charge of the foreign policy of Austria-Hungary are convinced that it is in the common interest of the Monarchy, as in that of Germany, to oppose energetically and in time in this phase of the Balkan crisis, the development foreseen and encouraged by Russia by a pre-concerted plan.”

Austria’s ambassador to Germany, Ladislaus Szogyeni-Marich, passed the letter to Kaiser Wilhelm over lunch on July 5, in Potsdam. Wilhelm promised Germany’s “faithful support” for Austria-Hungary in whatever action it chose to take towards Serbia, even if Russia intervened. Later that afternoon, Wilhelm assembled a crown council, attended by the Imperial Chancellor, Theobald von Bethmann-Hollweg, Foreign Secretary Arthur Zimmermann, and War Minister Erich von Falkenhayn, among others. From this meeting, a consensus emerged backing the kaiser’s decision.

The kaiser’s pledge, which historians have referred to as the carte blanche or “blank check” assurance, marked a decisive moment in the chain of events leading up to the outbreak of the First World War. Without Germany’s backing, the conflict in the Balkans might have remained localized. With Germany promising to support Austria-Hungary’s punitive actions towards Serbia, even at the cost of war with Russia, whose own powerful allies included France and Great Britain, the possible Balkan War threatened to explode into a general European one.

Theobald von Bethmann-Hollweg, Chancellor of Germany 14 July 1909 – 13 July 1917

Theobald von Bethmann-Hollweg, Chancellor of Germany 14 July 1909 – 13 July 1917

As Bethmann-Hollweg, telegrammed Count Leopold von Berchtold, the Austro-Hungarian Foreign Minister, on July 6:

The Emperor Francis Joseph may . . . rest assured that His Majesty will faithfully stand by Austria-Hungary, as is required by the obligations of his alliance and of his ancient friendship.”

Historian Max Hastings believes Germany’s support for Austria was the necessary trigger. He writes in Catastrophe: 1914 – Europe Goes to War:

The case … seems overwhelmingly strong that Germany bore principal blame. Even if it did not conspire to bring war about, it declined to exercise its power to prevent the outbreak by restraining Austria. Even if Berlin did not seek to contrive a general European conflagration, it was willing for one, because it believed that it could win.”

Kaiser Wilhelm II in 1902

Kaiser Wilhelm II in 1902

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