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

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:

April 13, 1953 – Under the Government’s Aegis: Remembering Ebb Cade

April 13, 1953 is the day that Ebb Cade died. He was a 53-year-old African-American who, during World War II, worked as a cement mixer at the secret weapons production plant in Oak Ridge, Tennessee.

On March 24, 1945, Mr. Cade got into an automobile accident on his way to work. He had received a few fractures but was otherwise well. Not for long, however. During the next several weeks he was kept at the hospital and injected – unknowingly – with 4.7 micrograms of plutonium, the highly lethal agent being purified to make atomic bombs. He turned out to be the first of eighteen people thus injected in federally sponsored medical experiments to test the toxicity of this radioactive chemical element.

The Government was well aware that Plutonium was dangerous, as you can see from the many pictures of testing that took place to monitor the exposure of (white) workers at Oak Ridge.

An Oak Ridge National Laboratory employee having a blood test to detect radiation exposure circa 1950

Here is the enlightening [sic] explanation of how Mr. Cade came to be injected from an in-depth study conducted by the 1994 Advisory Committee on Human Radiation Experiments (ACHRE) appointed by President Clinton:

Dr. Joseph Howland, an Army doctor stationed at Oak Ridge, told AEC investigators in 1974 that he had administered the injection. There was, he recalled, no consent from the patient. He acted, he testified, only after his objections were met with a written order to proceed from his superior, Dr. Friedell. Dr. Friedell told Advisory Committee staff in an interview that he did not order the injection and that it was administered by a physician named Dwight Clark, not Dr. Howland. The Committee has not been able to resolve this contradiction.”

1943 Dept. of Energy archives/Ed Westcott photo of one of the “security” billboards in Oak Ridge.

In the time subsequent to Mr. Cade’s injections, measurements were taken of his blood after four hours, his bone tissue after ninety-six hours, and his bodily excretions for forty to sixty days thereafter. His broken bones were not set until twenty days after the crash, and not until samples were taken from the bones for biopsy. In addition, fifteen of his teeth were extracted and sent to New Mexico for analysis.

After Mr. Cade left the hospital (it is thought he departed suddenly on his own initiative), he did not receive any further government medical care (for good or evil) and it is unknown how or if he suffered thereafter in the eight years he survived. Later it was learned that he moved out of state and died of heart failure on April 13, 1953, in Greensboro, North Carolina.

You can read more of the findings about government-sponsored medical experiments on unknowing victims here. You can read a summary of the ACHRE’s findings and recommendations here.

There are also a number of books about the medical experiments performed, or you can get a broader picture of the treatment of blacks in general (inter alia) at the Oak Ridge installation of the Manhattan Project from the very entertaining book The Girls of Atomic City by Denise Kiernan (see our review, here).

April 5, 1976 – “The Soiling of Old Glory”

“The Soiling of Old Glory” is the title given to the Pulitzer Prize–winning photograph photojournalist Stanley Forman took for the Boston Herald American on April 5, 1976. [Over a four-year period Forman won a Pulitzer Prize three times while working at the Boston Herald American.]

This photograph shows white teenager Joseph Rakes about to assault black lawyer (B.A. and J.D. from Yale University and a Ph.D. from Boston University) and civil-rights activist Ted Landsmark with a flagpole bearing the American flag. It occurred during one of a series of protests against court-ordered desegregation busing. As Louis P. Masur writes in his 2008 book about the incident (The Soiling of Old Glory: The Story of a Photograph That Shocked America):

A portrait of unthinkable racial hatred, the photograph punctured the nation’s comfortable illusion that the struggle over civil rights was primarily a Southern phenomenon, and it crystallized Boston’s reputation as a racist city. “

April 3, 1715 – Birthday of the Maybe Actual Sort-of-First U.S. President, John Hanson

Prior to the adoption of the Articles of Confederation, representatives of the British colonies in America met in a Continental Congress. The “United Colonies of America” elected the following presidents:

Peyton Randolph
September 5, 1774 to October 22, 1774


Henry Middleton
October 22, 1774 to October 26, 1774 (filling in for a sick Randolph)
Peyton Randolph May 20, 1775 to May 24, 1775 (he chose to leave to preside over the Virginia House of Burgesses)
John Hancock
October 27, 1775 to July 1, 1776

Peyton Randolph, first and third president of the “United Colonies of America”, by Charles Willson Peale

After the Declaration of Independence, when the colonies officially became the United States of America, there were yet more presidents:

John Hancock
July 2, 1776 to October 29, 1777
Henry Laurens
November 1, 1777 to December 9, 1778
John Jay
December 10, 1778 to September 28, 1779
Samuel Huntington
September 28, 1779 to February 28, 1781

Portrait of John Hancock, first president of “The United States of America” by John Singleton Copley, c. 1770–72

When the Articles of Confederation, formally called “Articles of Confederation and Perpetual Union,” established the United States of America as a confederation of sovereign states and were adopted by all parties in March of 1781, Samuel Huntington was chosen to continue as President of the United States. He only served from March until July, however, because of poor health.

Samuel Huntington, painted by Charles Willson Peale in 1783

Next, Thomas McKean served from July until November 4th. (McKean, also the Chief Justice of Pennsylvania, agreed only to serve until his court commenced in late October.) John Hanson was then chosen unanimously, and was the first President of “the United States” to serve a full year.

[The Articles of Confederation only allowed a President to serve a one-year term during any three-year period, so Hanson served in that office from November 5, 1781 until November 3, 1782.]

Portrait of John Hanson, circa 1770

Hanson’s successors were as follows:

Elias Boudinot
4th President of the United States 
in Congress Assembled
November 4, 1782 to November 3, 1783
Thomas Mifflin
5th President of the United States 
in Congress Assembled
November 3, 1783 to June 3, 1784
Richard Henry Lee
6th President of the United States 
in Congress Assembled
November 30, 1784 to November 23, 1785
John Hancock
7th President of the United States 
in Congress Assembled
November 23, 1785 to June 6, 1786
Nathaniel Gorham
8th President of the United States 
in Congress Assembled
June 1786 – November 13, 1786
Arthur St. Clair
9th President of the United States 
in Congress Assembled
February 2, 1787 to October 29, 1787
Cyrus Griffin
10th President of the United States 
in Congress Assembled
January 22, 1788 to March 4, 1789


Following the ratification of the Constitution by the required nine States, George Washington was inaugurated on April 30, 1789 as the first President of (the Constitutionally-defined) United States.

Oil painting of George Washington’s inauguration as the first President of the United States painted circa 1899

So Happy Birthday, Mr. In-Some-Senses First U.S. President!

Women’s History Month – Legal Information Summary

This terrific interactive map fills you in on women’s legal rights in several dimensions. You can drag the slider at the top to select the year you want (with a range from 1892 to 20120.

Map Overview for 1951

You can mouse over a country to get a quick view of rights. And you can click on the country and get a new screen with a more detailed overview of rights with respect to healthcare, employment, and government service.

Detail of the U.S. in 2012

Wanting Some Legal History For Your Very Own?

On May 30, 2013, if you happen to be in New York and have wads of cash on you, you may want to stop by Douglas Elliman’s Madison Avenue Gallery. Some great historical documents are going up for auction. Prior to that, from April 8th to April 16th, some of them will be available for viewing.

Documents on display will include letters from George Washington, one in which he looks to hire Negro slaves as laborers, a letter by Thomas Jefferson, letters from Dwight D. Eisenhower letters to his wife discussing the war, a letter from Karl Marx, and many more enticing items.

Letter from George Washington, who is seeking to hire slaves as laborers

We wish we could be there to see them! We also wish we had wads of cash. But such is life! If you are in the vicinity and want to take advantage of this opportunity, check this website to get more information.

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