January 16, 1801 – Hamilton’s Astute Analysis of Jefferson

On this day in history, Alexander Hamilton wrote a letter to James Bayard (an American lawyer and politician from Wilmington, Delaware and a member of the Federalist Party). In the letter, he makes his objections to the nomination of Aaron Burr for the U.S. Presidency. In the process, he actually defends Thomas Jefferson, by way of comparison, but in so doing, mentions aspects of Jefferson’s character that, while blatantly evident in Hamilton’s time, have tended to get lost in our elevation of the Founding Fathers to the status of deities:

Perhaps myself the first, at some expence of popularity, to unfold the true character of Jefferson, it is too late for me to become his apologist. Nor can I have any disposition to do it. I admit that his politics are tinctured with fanaticism, that he is too much in earnest in his democracy, that he has been a mischevous enemy to the principle measures of our past administration, that he is crafty & persevering in his objects, that he is not scrupulous about the means of success, nor very mindful of truth, and that he is a contemptible hypocrite. But it is not true as is alleged that he is an enemy to the power of the Executive, or that he is for confounding all the powers in the House of Rs.”

It should also be noted that Hamilton was not even aware of all of the “dirty tricks” against him that came from the instigation of Jefferson. You can read all of Hamilton’s remarks to Bayard here.

Alexander Hamilton portrait by John Trumbull 1806

Alexander Hamilton portrait by John Trumbull 1806

Review of “Ike’s Bluff” by Evan Thomas

A number of new studies of Dwight Eisenhower have reassessed him in a much more positive light than he was previously considered. (Historical revisionism of the Eisenhower Administration is not a new phenomenon, but it has picked up speed of late.) Evan Thomas joins the latest list of scholars who aim to elevate Eisenhower’s reputation, and he does so by focusing on his handling of the nuclear threat during his time in office. As Thomas demonstrates in this entertaining history:

The peace and prosperity that marked his two terms in office ‘didn’t just happen, by God’ (quoting Eisenhower)… The 1950’s were boringly peaceful (or are remembered that way) only because Eisenhower made them so.”

The principal thesis of Evan Thomas’s study of Eisenhower’s presidency is that the U.S. was able to keep the peace while simultaneously containing communist expansion during the 1950’s by credibly threatening to use nuclear weapons. That doctrine or policy became know as “massive retaliation,” meaning that the U.S. made it clear that it would use nearly its entire stock of nuclear weapons in any conflict. To Dwight Eisenhower, there were to be no small wars — it was all or nothing. Thomas argues (as does Jim Newton in Eisenhower: The White House Years), Eisenhower was so credible that no one, not even the audacious and provocative Mao Zedong, was willing to risk war with the U.S.

Eisenhower (Ike) benefited from his experience as a card shark. He took up poker at West Point, and won so often and so much that he had to quit to save his reputation. Then he took up bridge, and “was a fierce, take-no-prisoners player.” Both games require intelligence, skill at strategy and forecasting, confidence, and the ability to read one’s opponents. Ike, his staff secretary said, was adept at all of these traits.

These were skills he would take with him to the presidency.

Eisenhower at the Summer Bridge Nationals held at Sheraton Park Hotel in Washington D.C. in 1961

Ike’s first major challenge was to extricate the U.S. from the Korean War. He was elected partially on his promise, “I shall go to Korea.” President Truman famously queried, “What will he do when he gets there?” What he did shortly after returning was to raise the stakes of fighting for the other side. Some historians have claimed that Ike warned the Chinese, using the intermediary of India, that if the war continued the U.S. might feel compelled to use nuclear weapons. Indeed, some of Ike’s advisors later claimed these secret signals turned the tide. But Thomas questions this, in part because Nehru claims he never passed on the message. In any event, Ike greatly increased the bombing of dams and power plants, causing widespread flooding and ruining a year’s rice crop. The ensuing threat of famine was “deeply destructive and demoralizing” in and of itself to North Korea. In addition, the death of Stalin (who supported a dragged-out war to bleed the West), contributed to bringing the North Koreans and Chinese to the negotiating table.

Eisenhower was terribly concerned about the dangers of nuclear war. Accordingly, he developed a coherent strategy to avoid it. Unlike his Army Chief of Staff, the four star general Maxwell Taylor, and other advocates of developing the military ability to fight small wars, Ike thought small wars led to big wars, and in the nuclear age that might mean total war. The way to avoid small wars was to threaten big wars from the beginning, and mean it. Ike wrote that Taylor’s doctrine of flexible response:

…was dependent on an assumption that we are opposed by a people who think as we do with regard to the value of human life. But they do not, as shown in many incidents from the last war…. In the event they should decide to go to war, the pressure on them to use atomic weapons in a sudden blow would be extremely great.”

[Ultimately, General Taylor, critical of Eisenhower’s military policies, retired from active service in July 1959.]

Eisenhower with the Soviet, French, and British leaders on the eve of the 1955 Geneva peace conference

Ike expended serious efforts to induce the Soviets to engage in mutual reduction in arms. At the 1955 Geneva conference (see picture, above), he proposed “Open Skies,” a policy that would allow the Soviet and American reconnaissance planes to freely fly over each other’s territory. He wanted to reduce the threat of surprise attack, “the great fear of the new nuclear age.”

The Russians would not accept because (as we learned later) they were so weak they did not want the US to have a realistic appraisal of their strength.

But the U.S. was even better at craftiness with Ike at the helm. Thomas writes:

His ability to save the world from nuclear Armageddon entirely depended on his ability to convince America’s enemies—and his own followers—that he was willing to use nuclear weapons. This was a bluff of epic proportions.”

Thomas credits Eisenhower with many other wise choices during his presidency, such as his management of the Suez crises of 1956, his handling of volatile and dangerous characters like Chiang Kai-Shek and Curtis LeMay, his decision to emphasize ICBMs rather than bombers, and his avoidance of involvement in Vietnam despite the pleas of the French.

[It should be noted that Eisenhower was critical of the way the US under Lyndon Johnson fought the Vietnam war. Ike’s philosophy was to avoid a war unless you were willing to fight to win. One can only wonder how Ike’s Korean policy of relentless attacks on civilian targets, coupled with the threat of nuclear war, might have fared in Vietnam.]

Ike recognized and regretted that part of the price of avoiding nuclear war was convincing the US populace that the threat was both terrible and real. Yet he avoided letting the country devolve into a modern Sparta or a garrison state. Two bon mots from Thomas in the final chapter summarize the thrust of the book:

Ike was more comfortable as a soldier, yet his greatest victories were the wars he did not fight.”

Lincoln went to war to save the Union. Eisenhower avoided war to save the world.”

Evaluation: This is an excellent book not only for those not yet born during this period, but also for those who were around, but unaware of just how dangerous a time it was.

Rating: 4/5

Published by Little, Brown and Company, a division of Hachette Book Group Inc., 2012

January 12, 1932 – Oliver Wendall Holmes, Jr. Retires from the U.S. Supreme Court

Oliver Wendell Holmes, Jr. was born in Boston in 1841. He graduated from Harvard, served in the Civil War (wounded three times), and then returned to Harvard for law school.

Daguerreotype showing Holmes in his uniform, 1861

Daguerreotype showing Holmes in his uniform, 1861

After graduating, he entered private practice. Then he returned to Harvard once again, this time to teach constitutional law. He also published a treatise, The Common Law. He served twenty years on the Massachusetts Supreme Court. In 1902, President Theodore Roosevelt nominated Holmes to the Supreme Court, a position for which he was confirmed without objection two days later.

In the year of his appointment to the United States Supreme Court

In the year of his appointment to the United States Supreme Court

Holmes served as Associate Justice from 1902 to 1932, and in 25 of his 29 years on the Court, never missed a session. Today, he is one of the most widely cited United States Supreme Court justices in history, particularly for his “clear and present danger” opinion for the unanimous Court in the 1919 case of Schenck v. United States. He retired from the Court at the age of 90 years on this day in history.

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The Great Dissent: How Oliver Wendell Holmes Changed His Mind–and Changed the History of Free Speech in America by Thomas Healy is a very thought-provoking account of how Justice Holmes altered his position on freedom of speech to pave the way for the more liberal interpretation of the First Amendment we now regard as canonical. In the short period between his decisions in Schenck v. United States, Frohwerk v. United States, and Debs v. United States, and his decision in Abrams v. United States, Holmes changed his mind and changed the law.

It’s an interesting and important story for several reasons. One is the view it provides of the rather astounding effect that one Supreme Court Justice can have on the law of the entire country.  Holmes’s famous dissents arguing for an expanded view of First Amendment freedoms were not as well-written as those of Brandeis, to name but one other advocate who wrote more clearly, but it was Holmes, with his far-reaching influence and “force of personality” that affected the public consciousness, and, as Healy writes, “gave the movement its legitimacy and inspiration.” 

Oliver_Wendell_Holmes_Jr_circa_1930-edit

A second reason this story fascinates is the documentation of just how and why Holmes was influenced by his friends – a group of young intellectuals who came under government suspicion because of their backgrounds and liberal tendencies rather than because of any danger – either from intent or from effect – of their speech.

Finally, there are the compelling philosophical issues about the First Amendment itself over which Holmes struggled:  where should the line be drawn for freedom of speech?  If the country is at war, must “all rights of the individual… become subordinated to the national rights in the struggle for national life” as one critic argued?  Should war make a difference?  If so, why? What if the war itself is unjust?  And what about the difference between the intent of speech and its effect?  Is it fair to ignore one or the other?  

So what exactly happened between Schenck, decided March 3, 1919, and Abrams, decided November 10, 1919? This entertaining book by Healy answers that question.

Holmes was not initially in favor of toleration of other opinions. He didn’t believe in “natural rights.” (He had just recently written, “…there can be no legal right as against the authority that makes the law on which the right depends.” Kawananokoa v. Polyblank.) Also in 1907, his opinion for Patterson v. Colorado enshrined into law a “Blackstonian” view of free speech, which insisted that the purpose of the First Amendment “was to prevent all such ‘previous restraints’ upon publications as had been practiced by other governments, but not to prevent the subsequent punishment of such as may be deemed contrary to the public welfare.” (After publication, however, as the author commented, “all bets were off.”)

But Holmes had a number of very close friends – young, mostly Jewish intellectuals, a couple of whom he considered to be like his sons. Included among them were Harold Laski, Felix Frankfurter, Zechariah Chafee, and Louis Brandeis. These men had much more liberal ideas than Holmes on a wide array of subjects, including free speech, and they plied him with books to show him how their thinking had evolved. He happily read them, and engaged in debate with his friends, but resisted change.

Justice Felix Frankfurter

Justice Felix Frankfurter

However, after World War I, the mood in the country took a turn for the worse. A “Red Scare” following the Russian Revolution swept America. Congress passed the Espionage Act in June 1917 and the Sedition Act in the spring of 1918. U.S. officials, led by the Attorney General and a young J. Edgar Hoover, who in 1919 was put in charge of the “Radical Division” at the F.B.I., eagerly stoked the flames, embarking on witch hunts for anyone deemed “suspicious”. The Washington Post, reflecting the mood of the nation, wrote, “Too long the government pursued the policy of waiting until some overt act was committed before talking steps against the anarchists…” And as the author pointed out:

Many of these [suspect] people, it was said, were teaching at universities, where they could corrupt the minds of the young. Many others were immigrants, particularly of Jewish ancestry. And for those unfortunate individuals who were both university professors and Jewish immigrants, well, the presumption of guilt was nearly automatic.”

Laski, Frankfurter, and Chafee were professors at Harvard, and Brandeis was on the Supreme Court. Brandeis enjoyed relative immunity compared to the others, who soon found their careers in jeopardy. This was probably the best thing that happened to free speech. As Healy observes after Laski came under fire:

For now what had been merely an abstract question for Holmes over the past year was, suddenly, concrete and personal. The face of free speech was no longer Eugene Debs, the dangerous socialist agitator. It was his good friend Harold Laski, and Holmes’s views shifted accordingly – and dramatically.”

Harold Joseph Laski in 1946.

Harold Joseph Laski in 1946.

It wasn’t just a case of Holmes liking these men and therefore feeling disposed to advocate on their behalf. He knew they posed no threat to the country, and that their ideas were not threatening but stimulating, and grounded in centuries of philosophical and legal debate. He argued in Abrams not only that one needn’t worry because “bad” opinions would suffer accordingly in a free marketplace of ideas. He went farther, disavowing the idea that free speech is inapplicable during times of war, reemphasizing the “clear and present danger” criterion he had first articulated in Schenck. He had come to see the raft of cases brought under the Sedition and Espionage Acts as part of the government’s effort to impose uniformity of belief, and he opposed that effort. In yet another dissent, he wrote:

…if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”

He still felt that “persecution for the expression of opinions seems…perfectly logical.” But now he added – as John Stuart Mill had maintained in On Liberty, a book recommended to him by Laski – that opening up beliefs to refutation will only strengthen them if in fact they cannot be proven to be unfounded.

Evaluation: This is a highly interesting story and well-told, except, that is, for the prologue and first chapter. I thought the book would have been enhanced by omitting those two portions. Also, the author somewhat bizarrely and irrelevantly, as far as I could tell, decided to add information about Holmes’ love life. I saw no possible reason for it to be included.

Rating: 4/5

Published by Metropolitan Books, 2013

January 10, 1973 – The U.S. Supreme Court Decides United States v. Kras

On this day in history, the Supreme Court decided the question of whether an individual has a constitutional right to a bankruptcy discharge without paying the required filing fees. Kras had claimed he was simply too poor; he had no job and had children, one of whom had cystic fibrosis.

Justice Blackmun held for the 5-4 majority in United States v. Kras 409 U.S. 434 (1973) “There is no constitutional right to obtain a discharge of one’s debts in bankruptcy,” and Robert Kras was ordered to pay a $50 filing fee. He noted that the weekly payments of the fee amount to $1.28 and if the discharge would help Mr. Kras find a job, he should be able to pay that amount.

In an impassioned dissent, Justice Thurgood Marshall took exception to the justices’ lack of appreciation of monetary difficulties for those who are impoverished. Marshall wrote:

I cannot agree with the majority that it is so easy for the desperately poor to save $1.92 each week over the course of six months. The 1970 Census found that over 800,000 families in the Nation had annual incomes of less than $1,000 or $19.23 a week. [U.S. Bureau of Census, Current Population Reports, series P-60, No. 80; U.S. Bureau of Census, Statistical
Abstract of the United States 1972, p. 323.] I see no reason to require that families in such straits sacrifice over 5% of their annual income as a prerequisite to getting a discharge in bankruptcy.

It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. A sudden illness, for example, may destroy whatever savings they may have accumulated, and, by eliminating a sense of security, may destroy the incentive to save in the future. A pack or two of cigarettes may be, for them, not a routine purchase, but a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have — like attempting to provide some comforts for a gravely ill child, as Kras must do.

It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.”

Supreme Court Justice Thurgood Marshall

Supreme Court Justice Thurgood Marshall

January 8, 1790 – President Washington Promotes Science and Literature

On this day in history, President George Washington delivered his “First Annual Message to Congress on the State of the Union,” beginning “I embrace with great satisfaction the opportunity which now presents itself of congratulating you on the present favorable prospects of our public affairs.”

As part of his message, he opined:

The advancement of agriculture, commerce, and manufactures by all proper means will not, I trust, need recommendation; but I can not forbear intimating to you the expediency of giving effectual encouragement as well to the introduction of new and useful inventions from abroad as to the exertions of skill and genius in producing them at home, and of facilitating the intercourse between the distant parts of our country by a due attention to the post-office and post-roads.

Nor am I less persuaded that you will agree with me in opinion that there is nothing which can better deserve your patronage than the promotion of science and literature. Knowledge is in every country the surest basis of public happiness. In one in which the measures of government receive their impressions so immediately from the sense of the community as in ours it is proportionably essential.”

You can read his entire address here.

George Washington by Gilbert Stuart

George Washington by Gilbert Stuart

January 7, 1610: Galileo Goes Sky-Watching and Changes the Universe

The telescope was invented in the Netherlands. The news of the invention spread rapidly, and by 1609 telescopes were for sale in spectacle-makers’ shops throughout Europe. There were even those who used telescopes to observe the moon. But it was Galileo who best refined the telescope for astronomical viewing, subsequently studying not only our own moon, but also discovering the four satellites of Jupiter.

Galileo's original telescope

Galileo’s original telescope

At the end of 1609, Jupiter was the brightest object in the evening sky besides the moon. After Galileo had tinkered with his telescope and finished his lunar observations, he turned his attention to Jupiter. On January 7, 1610, he observed the planet and saw what he thought were three fixed stars near it, strung out in a line. The next night, he saw all three stars to the west of Jupiter. Over the next week he returned to the formation every night. He discovered that not only did the little stars never leave the planet, but they seemed to be carried along with it, and moreover, kept changing their position with respect to each other and to Jupiter. Also, a fourth companion entered the grouping that apparently had been around the other side of the planet during his initial observations.

By January 15th Galileo figured out that the moving bodies were not stars but four moons that were revolving around Jupiter. This proved that not everything in space circled the Earth. Therefore, to Galileo, our planet might not the absolute center of the universe, as the Catholic Church maintained (based on its understanding of the Bible).

Galileo's notes on the moons of Jupiter

Galileo’s notes on the moons of Jupiter

In March of 1610 he published a small book, Sidereus Nuncius (The Starry Messenger), revealing some discoveries that had not been dreamed of in the philosophy of the time: mountains on the Moon, lesser moons in orbit around Jupiter, and the resolution of what had been thought cloudy masses in the sky (nebulae) into collections of stars too faint to see individually. Other observations followed, including the phases of Venus and the existence of sunspots.

scie_galileo2

These revelations, particularly about the moons of Jupiter, had a major impact on cosmology. Traditional belief held that there was only one center of motion, which was the earth. All heavenly bodies were believed to rotate around it. Copernicus had postulated that the earth went around the sun while the moon went around the earth, but his theories were considered absurd. (From about 1510 to 1514, Copernicus developed the first general outline of his new heliocentric system and presented it in a short manuscript, but it was not for publication; rather, he circulated it among his friends. He began to write the first book of De Revolutionibus Orbium Coelestium (On the Revolutions of the Heavenly Spheres) in about 1515 and again tried to keep it a secret, since he was concerned about the implications of his discovery. But again, word of his work spread among the circles of mathematicians and astronomers.)

Nicolaus Copernicus

Nicolaus Copernicus

The discovery that Jupiter also had moons, and that they rotated around that planet, not only gave credence to the Copernican theory but shook up the foundations of science, and religion as well.

Galileo continued to disturb the universe, and was ordered to stand trial on suspicion of heresy in 1633. He was sentenced to house arrest for the remainder of his life.

January 5, 1934 – The Costigan – Wagner Anti-Lynching bill is Proposed to the Senate

As Wil Haywood reports in his book Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America, “since 1900 [to 1934] there had been thirty-five hundred recorded lynchings in the United States; there had been only twelve convictions.” [Note: Statistics exist from 1882 forward; had Haywood taken those numbers into account, the total would have been over forty-six hundred.] Previous attempts to introduce antilynching legislation at the federal level had met with no success. Haywood adds, “President Roosevelt agreed with the need for an antilynching bill, but he retreated from southern opposition to it, and the bill gained no traction.”

In 1934 the NAACP launched a campaign to obtain passage of an antilynching bill introduced by Senators Edward P. Costigan of Colorado and Robert Wagner of New York on this day in history. Like those that preceded it (and failed), the Costigan-Wagner bill placed responsibility for its enforcement with local authorities. Sheriffs who failed to take appropriate action to protect prisoners in their custody could be penalized under the act. Provision was also made to compensate the families of those who had been victimized by mob action.

Senator Edward Prentiss Costigan

Senator Edward Prentiss Costigan

Thurgood Marshall, then serving as Solicitor General of the U.S., sent a letter to Maryland Senator Millard Tydings, urging him to lend support to the Costigan-Wagner Anti-Lynching Bill. Senator Tydings had delayed in taking a stand on the proposed bill and Marshall sought to convince the senator that it was in his interest as “a champion of fair-play and justice” to support the bill. But Senator Tydings had a number of objections to the law, including his belief that the law infringed on “state’s rights.”

Thurgood Marshall in 1936

Thurgood Marshall in 1936

Marshall disagreed, writing in a letter to Senator Tydings on January 29, 1935:

This bill does not deprive the states of a single right which they now have. When the officers of the state either act on behalf of the mob or fail to use reasonable means to prevent them from acting, as was done in the lynching of Claude Neal in Florida; when daily newspapers told of the proposed outrage and invited all to attend; and when the lynching was over, the lawless element with the sanction of officials of the state continued to spew their venomous wrath upon innocent, law-abiding tax-paying Negro citizens . . . how in the name of justice and decency can anyone talk of protecting the rights of such a state when it has forfeited all rights to be classed as a state because of open treason and rebellion?”

It was not until April 15, 1935 that Senator Costigan served notice upon the Senate that upon conclusion of debate on [a farm bill] he would demand consideration of the anti-lynching bill introduced by himself and Senator Robert F. Wagner of New York.

A filibuster was immediately organized to resist the bill’s passage in the Senate.

Much to the disappointment of the African-American community, this bill did not pass and lynchings continued in many Southern states well into the fifties.