May 26, 1637 – Beginning of Massacres of the Pequot Tribes by the Puritans

As summarized on the website of The Society of Colonial Wars in the State of Connecticut:

In 1633 the English Puritan settlements at Plimoth [sic] and Massachusetts Bay Colonies had begun expanding into the rich Connecticut River Valley to accommodate the steady stream of new emigrants from England. Other than the hardship of the journey and the difficulty of building homes in what the Puritans consider a wilderness, only one major obstacle threatened the security of the expanding settlements: the Pequots.”

Tribal territories of Southern New England tribes about 1600

Tribal territories of Southern New England tribes about 1600

The Pequot tribe had already been weakened by smallpox brought by the English settlers, and by internecine conflict between those who were pro-English and those who were pro-Dutch. Matters were made much worse when the Pequots killed a dishonest trader, John Oldham, in July of 1636. The settlers demanded retribution. Massachusetts raised a military force under the command of John Endicott. This troop landed on Block Island, killed 14 natives and burned the village and crops. They then moved on to Saybrook and burned that village as well.

And on this day in history, May 26, 1637, a military force under John Mason and John Underhill attacked the Pequot settlement near New Haven, Connecticut, destroying the village, consisting mostly of women, children, and the elderly, and killing over 500. The only Pequot survivors were warriors who had been with their leader Sassacus in a raiding party outside the village. Sassacus and many of his followers were surrounded in a swamp near a Mattabesic village called Sasqua and nearly 180 warriors were killed. Sassacus was eventually killed by the Mohawk, who sent his scalp to the English as a symbol of friendship. Surviving captives were sold in the West Indies as slaves. The few Pequots who were able to escape the English, fled to surrounding Indian tribes and were assimilated. The Pequot nation was destroyed.

A 19th-century engraving depicting the Pequot War

A 19th-century engraving depicting the Pequot War

Captain John Mason later wrote that they wouldn’t have killed so many Pequots if they could have served as “servants” but “they could not endure that Yoke.” Thus did the Lord, Mason writes, “scatter his Enemies with his strong Arm!:

Let the whole Earth be filled with his Glory! Thus the LORD was pleased to smite our Enemies in the hinder Parts, and to give us their Land for an Inheritance.”

You can read the entire text of Mason’s joyous account of the Pequot massacres here.

Review of “Scars of Independence: America’s Violent Birth” by Holger Hoock

Hoock aims to tell the story of the American Revolution by using violence as his central analytical and narrative focus. He argues that the story of the revolution has been subject to “whitewashing and selective remembering and forgetting.” Americans have chosen to portray the revolution as “an uplighting, heroic tale, as a triumph of high-minded ideas….” But as Hoock ably demonstrates from his well-researched account, the reality was much messier, marked by violence “in ways we don’t remember, and perhaps can’t even imagine, because they have been downplayed – if not written out of the conventional telling altogether.”

Why was this so? In all wars, narratives of one-sided violence (that is, violence by the “other” side) help to mobilize allegiance and support. Having a “moral” claim helps legitimize a nation both at home and abroad. And of course, with Americans averring that their primary interest was freedom, they needed a compelling message to counter the many ways their hypocrisy could be exposed – not only because of their enslavement of blacks and treatment of Natives, but because of the way the Patriots terrorized the Loyalists. Anglican churches and clergymen were singled out for even more abuse, because they prayed for the British king. Churches were smashed and priests tarred and feathered or covered with excrement. Some were killed, including one who was lynched by a mob in Charleston, South Carolina with his body subsequently burned on a bonfire. (Hoock writes that different regions in America “specialized” in different types of abuse.)

Lynching of Loyalists

Lynching of Loyalists

One of the worst places to be punished for Loyalist leanings was in Connecticut, where the accused could be taken to an underground prison located in a converted copper mine. This hell on earth (or in earth, as it was 60-80 feet underground) was dark, damp, squalid, with limited air circulation, and exceedingly unsanitary. Prisoners could not stand upright, and the political prisoners were mixed in with dangerous felons. Many of them went mad. As Hoock observes: “Psychological torment and physical violence played a far greater role in suppressing dissent during America’s first civil war than is commonly acknowledged.”

Connecticut's notorious Newgate Prison

Connecticut’s notorious Newgate Prison

There were also “political” punishments. Hoock reports on extralegal Patriot “committees of safety” that policed members of their own towns, encouraging neighbor to turn against neighbor, and not discouraging vigilante and/or mob violence. Other Patriot actions against Loyalists included enactment of treason laws, confiscation and banishment acts, test laws (to test loyalty), and the banning of Loyalists from voting, holding office, practicing their professions, trading, serving on juries, acquiring property, inheriting land, or even traveling at will.

Confiscation of property affected tens of thousands of Loyalists during the war, allowing the states to accrue assets and condemn traitors to a social death without engaging in widespread executions.

But the Patriots in general, and George Washington in particular, were well aware that “in order to win the war on the moral front, with both American and international audiences watching, [they] must out-civilize the enemy.” Thus, not only were stories of American violence suppressed, but stories of barbarity by the British, while rare – particularly at the beginning of the war, became pivotal pieces of the Patriot atrocity narrative: “In their print media, the Patriots presented such atrocities as part of a broader pattern of British excessive violence.”

George Washington during the Revolutionary War

George Washington during the Revolutionary War

The American Congress published numerous reports of any British atrocity in order to persuade the population of “Britain’s moral inferiority and the righteous urgency of America’s cause.” The most effective propaganda took the form of charges of sexual predation. As Hoock observes, “The high proportion of references to girls and teenagers being raped does not correspond to verifiable data…” But of course, as he admits, “As is the case in most wars, and in most societies, the incidence of rape in the Revolutionary War is impossible to quantify.” Rape victims were intimidated by threats, social ostracizing, and humiliation. They lacked witnesses to corroborate their stories.

Regardless, the “Americans deployed rape as a political tool to discredit the British Empire…” (Sadly, Hoock points out, narratives of rape from the period highlight the injured reputation of dishonored fathers and husbands, and were said to symbolize the violation of the body politic. The abused women themselves didn’t seem to matter as much.)

Cartoon showing metaphorical rape of colonies by British

Cartoon showing metaphorical rape of colonies by British

Hoock also devotes a considerable amount of time to the problems of prisoners of war. Observing the conventions related to prisoners created a dilemma for the British: if they called captured combatants thusly, and agreed to be bound by conventions re prisoners, they would ipso facto be recognizing the U.S. as a sovereign state. [Lincoln faced the same issue during the Civil War vis-a-vis captured Confederates.] It is estimated that between 16,500 and 19,000 American prisoners died in British captivity – roughly half of all the Patriots under arms who died in the war.

Hoock also shows the way racism fed the violence of the war, not only against blacks, but against Native Americans. America used the mobilization of the war to wage a simultaneous campaign against the Iroquois Confederation. Washington himself laid out the Continental Army’s objective in the campaign against the Six Nations to Major General John Sullivan as “the total destruction and devastation of their settlements and the capture of as many prisoners of every age and sex as possible. It will be essential to ruin their crops now in the ground and prevent their planting more.” ….. As Hoock remarks, “Today we would consider this a form of genocide.”

Major General John Sullivan

Major General John Sullivan

Finally, Hoock reports on the period after the war was over, when treatment of former Loyalists was quite punitive. While 60,000 or so white Loyalists went into permanent exile after the war, several hundred thousand wished to stay in their homes. But animosity ran deep, and violence was often employed against them.

Alexander Hamilton realized that while the physical fighting was ended, the war for hearts and minds was not over. He urged tolerance, warning of “the diplomatic, political, economic, and moral costs of persecuting the Loyalists.”

To that end, Americans “scrubbed” their own Revolutionary war record, which they celebrated as “untarnished with a single blood-speck of inhumanity.” For their part, Loyalists remaining in the States had no choice but to hide their trauma, or there would be severe repercussions. In any event, no American publisher would spread their version of events. The Patriots controlled the history.

The Spirit of '76, originally entitled Yankee Doodle, painted by Archibald Willard in the late nineteenth century, an iconic image relating to the patriotic sentiment surrounding the American Revolutionary War

The Spirit of ’76, originally entitled Yankee Doodle, painted by Archibald Willard in the late nineteenth century, an iconic image relating to the patriotic sentiment surrounding the American Revolutionary War

Discussion: Hoock uses multiple lenses to ferret out the real story of the American Revolution without the obfuscation of socially-constructed myth. In addition to accounts of American Patriots, he examines those of American Loyalists, the British, Native Americans, Black Americans, and German mercenaries. He also illustrates the ways in which the history of of the American Revolution was interpreted – first of all to serve the social and political agendas of the combatants at the time, and second, to readjust the understanding of the conflict in light of WWI, when it became especially important to minimize the legacy of violence between “kindred Anglo-Saxon peoples…”.

Hoock’s emphasis on the historical reconstruction of the war – i.e., the deliberate formation of the collective memory of the war – is critical to an understanding of how narrative was used by America to reshape what happened into a suitable foundation story. Not only do “the victors write the history,” but they tend to do so in a way that is more self-serving than accurate.


Evaluation: This book is a much-needed corrective to the many histories of the founding of America that only show the “noble” aspects of the struggle. It contains details of many violent incidents of the war that haven’t made it into other accounts. As historian James Young famously observed, “Memory is never shaped in a vacuum; the motives of history are never pure.” As we now combat the divisions of the country after an election that emphasizes our divides rather than our commonality, we would do well to remember how easy it has been for this country to succumb to violence, discrimination, and cruelty, and then use “alternative facts” to cover it up.

Rating: 4.5/5

Published by Crown Publishers, an imprint of the Crown Publishing Group, a division of penguin Random House LLC, 2017

May 22, 1887 – Birthday of Jim Thorpe, One of the Greatest Athletes in American History

Jim Thorpe was an amazing sports phenomenon. In 1999, he was ranked seventh on the AP list of top athletes of the 20th century, but from his accomplishments, I think “seventh” might be selling him short!

Jim Thorpe during his 1917 stint with the Cincinnati Reds

Jim Thorpe during his 1917 stint with the Cincinnati Reds

He was born in Oklahoma (most biographers think he was born on May 22, 1887) in extreme poverty to parents who were each part Native American. The public largely identified Thorpe as wholly American Indian, making him alternately a source of pride (for his seeming assimilation into America) and the target of bias. He was raised as a Sac and Fox Indian and as a Catholic, with his native name being Wa-Tho-Huk, or “Bright Path.”

Jim Thorpe in Carlisle Indian Industrial School uniform, c. 1909

Jim Thorpe in Carlisle Indian Industrial School uniform, c. 1909

Thorpe began his athletic career at the Carlisle Indian Industrial School in Carlisle, Pennsylvania in 1907 when he walked past the track and watched the high jumpers. Still in his heavy overalls, he said he could do that, and proceeded to beat the school’s team with an impromptu 5-ft 9-in jump. He was invited to join the team, but also competed in football, baseball, lacrosse and even ballroom dancing, winning the 1912 inter-collegiate ballroom dancing championship! At the time, Carlisle’s athletic coach was Glenn Scobey “Pop” Warner, later to become famous himself. Reportedly, Pop Warner was hesitant to allow Thorpe, his star track and field athlete, to compete in a physical game such as football. But Thorpe convinced Warner to watch him run some plays against the school’s defense; Thorpe ran around past and through them not once, but twice. He then walked over to Warner and said, “Nobody is going to tackle Jim,” while flipping him the ball.

He ended up playing as running back, defensive back, placekicker, and punter for his school’s football team. In 1911, he scored all of his team’s points—four field goals and a touchdown—in an 18–15 upset of Harvard. His team finished the season 11–1.

Jim Thorpe in the decathlon during the 1912 summer Olympics in Stockholm, Sweden

The following year, he led Carlisle to the national collegiate championship, scoring 25 touchdowns and 198 points. Carlisle’s 1912 record included a 27–6 victory over Army, in which Thorpe scored a 92-yard touchdown that was nullified by a penalty incurred by a teammate; he then scored a 97-yard touchdown on the next play. (In this same game, future President Dwight Eisenhower injured his knee while trying to tackle Thorpe. Eisenhower recalled of Thorpe in a 1961 speech, “Here and there, there are some people who are supremely endowed. My memory goes back to Jim Thorpe. He never practiced in his life, and he could do anything better than any other football player I ever saw.”) Thorpe was awarded All-American honors in both 1911 and 1912.

In 1912, Thorpe decided to enter the Summer Olympics in Stockholm, Sweden, and trained aboard the ship on the way over! He set records for both the pentathlon and decathlon. The story goes that after King Gustav V presented Thorpe with his gold medals for both accomplishments, he grabbed Thorpe’s hand and said, “Sir, you are the greatest athlete in the world.” Thorpe is reported to have replied, “Thanks, King.”

Thorpe at the 1912 Summer Olympics

Thorpe at the 1912 Summer Olympics

Thorpe also played in one of two exhibition baseball matches held at the 1912 Olympics. But in January, 1913, U.S.newspapers published stories revealing that Thorpe had played two semi-professional seasons of baseball in the Eastern Carolina League. The Amateur Athletic Union decided to withdraw Thorpe’s amateur status retroactively, and asked the International Olympic Commission (IOC) to do the same. Later that year, the IOC unanimously decided to strip Thorpe of his Olympic titles, medals, and awards and declared him a professional. His name was removed from the record books.

Thorpe went on to play professional baseball, football, and basketball, sometimes all in the same year. In 1920 he became the first president of the American Professional Football League, which would evolve into the National Football League.

Thorpe’s last pro game was in 1928. Thereafter, he took various, often low-paying jobs to support his family. He died in poverty of a heart attack on March 28, 1953. The New York Times ran a front page story, stating that Thorpe “was a magnificent performer. He had all the strength, speed and coordination of the finest players, plus an incredible stamina. The tragedy of the loss of his Stockholm medals because of thoughtless and unimportant professionalism darkened much of his career and should have been rectified long ago. His memory should be kept for what it deserves–that of the greatest all-round athlete of our time.” In 1950, the nation’s press selected Jim Thorpe as the most outstanding athlete of the first half of the 20th Century and in 1996-2001, he was awarded ABC’s Wide World of Sports Athlete of the Century. Thorpe’s Olympic medals were finally restored to him posthumously in 1982. In addition, and most importantly to his family, his name was put back into the record books.

Thorpe with the Canton Bulldogs some time between 1915 and 1920

Thorpe with the Canton Bulldogs some time between 1915 and 1920

Some interesting facts about Thorpe:

• Thorpe once hit 3 home runs into 3 different states in the same game. During a semi-pro baseball game in a ballpark on the Texas-Oklahoma-Arkansas border, he hit his first homer over the leftfield wall with the ball landing in Oklahoma, his second homer over the rightfield wall into Arkansas and his third homer of the game was an inside-the-park home run in centerfield, which was in Texas!

• Thorpe is one of two men in history who played for the New York Giants in two different sports. In football, he was the New York Giants’ running back and in baseball he was the New York Giants’ outfielder.

• Often Thorpe would demonstrate his football kicking prowess during halftimes by placekicking field goals from the 50-yard line, then turning and dropkicking through the opposite goal post.

• Thorpe would earn enshrinement in the pro football, college football, U.S. Olympic and national track and field Halls of Fame.

You can learn more about Jim Thorpe and see additional pictures on a website devoted to him, here.

Books on Thorpe for Young People

In addition to biographies for adults, there are a number of books about Thorpe’s life and accomplishments for young people, no doubt owing to his inspirational achievements.

A very nice graphic book on his life is Jim Thorpe: Greatest Athlete in the World, by Jennifer Fandel and illustrated by Rod Whigham.

The Native American author Joseph Bruchac has two books on Jim Thorpe: for younger readers, there is Jim Thorpe’s Bright Path illustrated by S.D. Nelson.

For teens, he has written Jim Thorpe: Original All-American.

May 19, 1925 – Birth of Malcolm X

Malcolm X, born on this day, May 19, in 1925, and was killed on February 21, in 1965 at the age of 40.

He was born Malcolm Little in Omaha, Nebraska, the fourth of five children of Earl Little and Louise Norton, both activists in the Universal Negro Improvement Association established by Marcus Garvey. Earl Little, a Georgia-born itinerant Baptist preacher, encountered considerable racial harassment because of his black nationalist views. He moved his family several times before settling in Michigan, purchasing a home in 1929 on the outskirts of East Lansing, where Malcolm spent his childhood. Their previous home had been destroyed in a mysterious fire. In 1931 Earl Little’s body was discovered on a train track. Although police concluded that the death was accidental, the victim’s friends and relatives suspected that he had been murdered by a local white-supremacist group. Earl’s death left the family in poverty and undoubtedly contributed to Louise Little’s mental deterioration. In January 1939 she was declared legally insane and committed to a Michigan mental asylum, where she remained until 1963. What this little boy had to endure was a shame.


Although Malcolm Little excelled academically in grammar school and was popular among classmates at these predominantly white schools, he also became embittered toward white authority figures. In his autobiography he recalls quitting school in the eighth grade after a teacher warned that his desire to become a lawyer was not a “realistic goal for a nigger.” As his mother’s mental health deteriorated and he became increasingly incorrigible, welfare officials intervened, placing him in several reform schools and foster homes. In 1941 he left Michigan to live in Boston with his half sister, Ella Collins.

In Boston and New York during the early 1940s, Malcolm held a variety of railroad jobs while also becoming increasingly involved in criminal activities, such as peddling illegal drugs and numbers running. First arrested in 1944 for larceny and given a three-month suspended sentence and a year’s probation, Malcolm was arrested again in 1946 for larceny as well as breaking and entering. When the judge learned that Malcolm was involved in a romantic relationship with a white woman, he imposed a particularly severe sentence of from eight to ten years in prison.

While in Concord Reformatory in Massachusetts, Malcolm responded to the urgings of his brother Reginald and became a follower of Elijah Muhammad (formerly Robert Poole), leader of the Temple of Islam (later Nation of Islam—often called the Black Muslims), a small black nationalist Islamic sect. Attracted to the religious group’s racial doctrines, which categorized whites as “devils,” he began reading extensively about world history and politics, particularly concerning African slavery and the oppression of black people in America. After he was paroled from prison in August 1952, he became Malcolm X, using the surname assigned to him in place of the African name that had been taken from his slave ancestors.


By 1953 Malcolm X had become Elijah Muhammad’s most effective minister, bringing large numbers of new recruits into the group during the 1950s and early 1960s. In 1954 he became minister of New York Temple No. 7, and he later helped establish Islamic temples in other cities. In 1957 he became the Nation of Islam’s national representative, a position of influence second only to that of Elijah Muhammad. In January 1958 he married Betty X (Sanders), who later became known as Betty Shabazz; together they had six daughters.

Malcolm’s electrifying oratory attracted considerable publicity and a large personal following among discontented African Americans. In his speeches he urged black people to separate from whites and win their freedom “by any means necessary.” He was particularly harsh in his criticisms of the nonviolent strategy to achieve civil rights reforms advocated by Martin Luther King, Jr. Malcolm derided the notion that African Americans could achieve freedom nonviolently. “The only revolution in which the goal is loving your enemy is the Negro revolution,” he announced. “Revolution is bloody, revolution is hostile, revolution knows no compromise, revolution overturns and destroys everything that gets in its way.”

Despite his criticisms of King, Malcolm nevertheless identified himself with the grassroots leaders of the southern civil rights protest movement, as he became increasingly dissatisfied with Elijah Muhammad’s apolitical stance. As he later explained in his autobiography, “It could be heard increasingly in the Negro communities: ‘Those Muslims talk tough, but they never do anything, unless somebody bothers Muslims.’”


Malcolm’s disillusionment with Elijah Muhammad resulted not only from political differences but also from the hypocrisy he perceived when he learned that the religious leader had fathered illegitimate children. Meanwhile, other members of the Nation of Islam began to resent Malcolm’s growing prominence and to suspect that he intended to lay claim to leadership of the group. Elijah Muhammad used the excuse of a controversial remark made by Malcolm to ban his increasingly popular minister from speaking in public.

Despite this effort to silence him, Malcolm X continued to attract public attention during 1964. He counseled the boxer Cassius Clay, who publicly announced, shortly after winning the heavyweight boxing title, that he had become a member of the Nation of Islam and adopted the name Muhammad Ali.

In March 1964 Malcolm announced that he was breaking with the Nation of Islam to form his own group, Muslim Mosque, Inc. The theological and ideological gulf between Malcolm and Elijah Muhammad widened during a month-long trip to Africa and the Middle East. During a pilgrimage to Mecca in April 1964 Malcolm reported that seeing Muslims of all colors worshiping together caused him to reject the view that all whites were devils. Repudiating the racial theology of the Nation of Islam, he moved toward orthodox Islam as practiced outside the group. After returning to the United States on May 21, Malcolm announced that he had adopted a Muslim name, el-Hajj Malik el-Shabazz, and that he was forming a new political group, the Organization of Afro-American Unity (OAAU), to bring together all elements of the African American freedom struggle.


Determined to unify African Americans, Malcolm sought to strengthen his ties with the more militant factions of the civil rights movement. In one of his most notable speeches, “The Ballot or the Bullet,” he urged black people to submerge their differences “and realize that it is best for us to first see that we have the same problem, a common problem—a problem that will make you catch hell whether you’re a Baptist, or a Methodist, or a Muslim, or a nationalist.”


Malcolm’s political enemies multiplied within the U.S. government as he attempted to strengthen his ties with civil rights activists and deepen his relationship with black leaders around the world. The Federal Bureau of Investigation saw Malcolm as a subversive and initiated efforts to undermine his influence. In addition, some of his former Nation of Islam colleagues, including Louis X (later Louis Farrakhan), condemned him as a traitor for publicly criticizing Elijah Muhammad. The Nation of Islam attempted to evict Malcolm from the home he occupied in Queens, New York. On 14 February 1965 Malcolm’s home was firebombed; although he and his family escaped unharmed, the perpetrators were never apprehended.

On 21 February 1965 members of the Nation of Islam shot and killed Malcolm as he was beginning a speech at the Audubon Ballroom in New York City. On 27 February more than fifteen hundred people attended his funeral service held in Harlem and Ossie Davis gave a moving eulogy that contrasted the public’s perception of an angry Malcolm with the loving and gentle man he knew, a person who gave voice to the pain of his people and gave courage to those who were afraid to speak the truth. Although three men were convicted in 1966 and sentenced to life terms, one of those involved, Thomas Hagan, filed an affidavit in 1977 insisting that his actual accomplices were never apprehended.

After his death, Malcolm’s views reached an even larger audience than during his life. The Autobiography of Malcolm X, written with the assistance of Alex Haley, became a best-selling book following its publication in 1965 . During subsequent years other books appeared, containing texts of many of his speeches, including Malcolm X Speaks (1965), The End of White World Supremacy: Four Speeches (1971), and February 1965: The Final Speeches (1992). In 1994 Orlando Bagwell and Judy Richardson produced a major documentary, Malcolm X: Make It Plain. His words and image also exerted a lasting influence on African American popular culture, as evidenced in the hip-hop or rap music of the late twentieth century and in the director Spike Lee ‘s film biography, Malcolm X (1992).

[Primary sources include Malcolm X by Clayborne Carson in African American National Biography and The Autobiography of Malcolm X.]


May 17, 1954 – Brown v. Board of Education & The Wrangling Behind the Decision: Review of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices” by Noah Feldman

Felix Frankfurter Professor of Law at Harvard, Noah Feldman, has given us a thoroughly researched, well-written, solid analysis of the inner workings of the U.S. Supreme Court from the time it was dominated by four appointees of Franklin D. Roosevelt. The appointees, the “Scorpions” of the title, all began as supporters of FDR’s New Deal, and thus putative “liberals.” However, over two decades on the Court their perspectives matured and diverged, and they became rivals for intellectual leadership in constitutional scholarship. Their rivalry in some case even became personal detestation.

Feldman’s account includes short, revealing mini-biographies of each subject jurist. Felix Frankfurter was an ebullient Jew [“an interesting little man but very Jew” in the exact words of Eleanor Roosevelt] who began as America’s leading liberal intellectual, but evolved into its most famous judicial conservative. Hugo Black was a former Ku Klux Klansman who became a vigorous advocate of free speech and civil rights. Robert Jackson was a backcountry lawyer in Upstate New York who later became chief prosecutor in the Nuremberg trials. William O. Douglas at first sought to use his appointment to the Court as a stepping stone to the presidency, but stymied in that pursuit, expanded individual freedom “beyond what anyone before had dreamed.”

Justice Felix Frankfurter

The most pressing legal issue in FDR’s presidency was the constitutionality of various New Deal programs. Many of those programs infringed on the “liberty of contract” [such as the “liberty” to go to work at age 12 or work more than 60 hours per week in menial jobs] enunciated in the 1905 decision, Lochner v. New York. Although each individual’s “liberty” is expressly protected by the 14th Amendment, nowhere in the Constitution does the term “liberty of contract” appear. The first eight cases on the constitutionality of New Deal legislation to reach the Court resulted in 5-4 decisions against the statutes. Feldman reprises the oft-told tale of FDR’s court-packing scheme; how testimony by Robert H. Jackson, a Roosevelt confidant and future Supreme Court appointee (then Solicitor General) before Congress supported the plan; how Frankfurter opposed it; and how a change in opinion by Justice Owen Roberts obviated the scheme by providing the Court with a 5-4 majority to overrule Lochner. Ultimately, it was Frankfurter’s doctrine of “judicial restraint,” giving substantial credence to the acts of the legislature, which carried the day.

Justice Hugo LaFayette Black

Feldman deftly traces the evolution of various legal doctrines through seminal decisions rendered by the Court from the late 1930’s through the mid 1950’s. We watch a Court willing to allow the internment of Japanese citizens during World War II evolve into the champion of civil rights that outlawed racial segregation in schools in Brown v. Board of Education. Feldman’s analysis is worthy of a law review article, yet his style and diction make the material accessible to the lay man.

Non-lawyers who may not enjoy legal analysis will still be interested in Feldman’s description of the clash of personalities that produced the epic decisions:

Frustration bred contempt. From allies sipping champagne to celebrate one another’s joining the Court, Black, Frankfurter, Douglas, and Jackson had formed camps and become bitter enemies. Frankfurter despised Douglas, whom he called one of the ‘two completely evil men I have ever met….’ Frankfurter called Douglas, Black, and Murphy [another justice] ‘the Axis.’ One-upping Frankfurter, Douglas called him ‘Der Fuehrer.’ The hatred between Black and Jackson ran so deep that it threatened to ruin the reputations of both men. The friendship between Frankfurter and Jackson seemed to depend more on disdain for Douglas and Black than any closer connection. Douglas and Black voted together but were not intimate friends. For them, common ground meant revulsion for Frankfurter and Jackson.”

Justice Robert Jackson

Feldman’s account of the machinations behind making the Brown opinion unanimous is particularly compelling. When the case first came before the Court, three justices (all southerners), including Chief Justice Fred Vinson, believed that the old “separate but equal” doctrine enunciated in Plessy v. Ferguson was the correct interpretation of the Constitution. Frankfurter knew that to rule segregated public facilities were unconstitutional would effect a social revolution, and so it required as strong and forceful opinion by the Court as possible. A 6-3 decision would not project the gravitas necessary to produce willing compliance, particularly in the South. After the oral argument, he persuaded a majority of the Court to defer decision and to require a re-argument the following year. This ploy gave him time to try to convert the other justices to his views.

Justice William O. Douglas

Remarkably, before the second oral argument, Vinson died of a heart attack. Frankfurter never liked Vinson, and told a former law clerk, “[T]his is the first solid piece of evidence I’ve ever had that there really is a God.” President Eisenhower then appointed Earl Warren, a consummate politician and a strong supporter of civil rights, as Chief Justice.

Even with Warren in the camp to overturn Plessy, the battle for a unanimous opinion was far from over. Frankfurter himself had to overcome his own judicial philosophy of judicial restraint. Jackson saw nothing in the constitutional text or precedent history to make segregation unconstitutional. Accordingly, he favored frank recognition that the court was making new law despite history and precedent, a position with which none of his colleagues would agree. He, however, fell ill and finally was browbeaten by Warren to join the unanimous opinion. A combination of Frankfurter’s cogent arguments and Warren’s cajoling induced the two remaining southern judges to join the rest of the court to make the opinion unanimous. The resulting opinion, although unanimous, is something of a hodge-podge of rationales. Nevertheless, it is usually considered the most important Supreme Court case of the 20th Century.

Evaluation: There is much more to this splendid book than my review can cover in a reasonably short space. I recommend it strongly for lawyer and layman alike.

Rating: 4.5/5

Published by Grand Central Publishing, 2011

Reputable Fact Checker Sites


During the 2016 election season, the Washington Post reported:

“The flood of “fake news” . . . got support from a sophisticated Russian propaganda campaign that created and spread misleading articles online with the goal of punishing Democrat Hillary Clinton, helping Republican Donald Trump and undermining faith in American democracy, say independent researchers who tracked the operation.”

In addition, there are a number of people who create fake news for money. As the Washington Post reported of one set of these “new yellow journalists”:

Fake-news hucksters don’t leave their apartment to find stories, they don’t interview any humans, they don’t have any sources.

They are part of the snake-oil empire that had more engagement on Facebook in the past three months of the presidential campaign “than the top stories from major news outlets such as the New York Times, Washington Post, Huffington Post, NBC News and others,” according to an analysis by BuzzFeed.”


Thus, it is useful to keep a list of reputable fact-checking sites. Some of the better ones include the following: (from the Annenberg Public Policy Center) (from the Washington Post)
Pew Research Center Fact Tank
The Century Foundation
Open (the most comprehensive resource for federal campaign contributions, lobbying data and analysis; features tracking money and how it affects politics.) (specializes in internet memes)

Eugene Kiely of admonishes readers to “[b]e skeptical. Check the author. Check the publisher. Check the sources.”:

“You have no idea how many people forward us emails that are anonymously written that made unsubstantiated claims with no sources. Same thing with some ‘stories’ and ‘reports’ written and posted on partisan and advocacy websites. Who is behind the website? What’s their agenda? How it is funded? How transparent is it? Does its articles and reports provide named sources of information with links to source material so readers can check the facts themselves? Reagan used to say, ‘Trust, but verify.’ I’d say verify first, and then determine if the source is worthy of your trust.”

I find that what the Washington Post claims about its fact checking site to be true in general with respect to all of these sites:

We will strive to be dispassionate and non-partisan, drawing attention to inaccurate statements on both left and right.”

There’s a valuable guide to evaluating websites here.

Review of “Duel: Alexander Hamilton, Aaron Burr, and the Future of America” by Thomas Fleming

Duel: Alexander Hamilton, Aaron Burr, and the Future of America is the haunting and illuminating story of two talented American founders who were ruined and driven against each other by three factors: their own ambition, their passionate natures, and the vicious designs of their powerful rival Thomas Jefferson. Fleming, skilled at presenting great detail without boring the reader, tells what happened in the years from the contentious election of 1800 to the duel that took Hamilton’s life in 1804. This book also provides a revealing look at the poisonous political atmosphere at the beginning of the republic.


Hamilton was less adept than Burr at reigning in his sensitivity to injustice and his craving for “the praise of persons of judgment and quality” (per Francis Bacon). Noah Webster warned Hamilton about his “ambition, pride, and overbearing temper.” But Hamilton had admirable leadership qualities as well: a brilliant intellect; bravery in battle; passionate support of political causes that seemed infinitely preferable to the Jacobinism of Jefferson; and consummate skills at speaking and writing to convince others of his arguments. (He was George Washington’s speech writer on many occasions.)

Portrait of Alexander Hamilton by John Trumbull, 1806

Portrait of Alexander Hamilton by John Trumbull, 1806

Burr had also proven brave and competent in battle; inspiring in the courtroom, and better able to broker political deals than Hamilton (if a bit too reluctant to commit to one side or another). While Vice President, he made sure Congress was conducted with dignity and decorum, precedents that were continued after his departure.

Portrait of Aaron Burr (1756-1836); Collection of the New Jersey Historical Society

Portrait of Aaron Burr (1756-1836); Collection of the New Jersey Historical Society

Jefferson, whom Fleming calls “at best a lukewarm friend of the Constitution,” engaged in unrelenting calumny and slander against these two political rivals, but always behind the scenes. He hired newspaper editors, he orchestrated moves and feints in Congress, and drafted (anonymously) documents to be presented by others – always working “in deep background.” His pet projects were characterized by emphases on loyalty and submission rather than the democracy he touted publicly.

Thomas Jefferson

Thomas Jefferson

Fleming’s accounts of the defamations issued by agents of Jefferson against Hamilton and Burr are shocking and depressing. Most people had no alternative means of obtaining information and tended to believe what they read in the Jefferson-sponsored diatribes. The lives of these two great men were ruined and nothing could be done. In the end, both men lost their families, their fortunes, their political careers, and in Hamilton’s case – his life – while Jefferson went on to be worshipped as the embodiment of “We the People”.

Rating: 4/5

Published by Basic Books, 1999