March 10, 1863 – The Supreme Court Decides Prize Cases as Reported by “Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War” by Mark E. Neely Jr.

The subtitle of this book on Lincoln, “Constitutional Conflict in the American Civil War,” is much more descriptive of its content than the main 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 own constitution. It gives considerable coverage to the major constitutional issue adjudicated by the Supreme Court during the Civil War, i.e., Prize Cases, as explained below.

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The first 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 was 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.

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

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.

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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.

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The Union’s power to confiscate Confederate ships pursuant to its blockade was the constitutional issue that was ruled upon 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.”

Justice Robert Cooper Grier

Justice Robert Cooper Grier

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 threat by terrorists 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.]

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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

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

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

Book Review of “On China” by Henry Kissinger

It’s a shame the neither the current U.S. President nor his advisors seem aware of Chinese history. It would help them understand the lack of wisdom in their precipitate policies.

Chinese written history goes back more than 2500 years. Its earliest myths speak of a Yellow Emperor, who does not establish or found the civilization, but rather restores order to an already ancient kingdom. Throughout their long history, the Chinese thought of themselves as the center of the world, the “Middle Kingdom.” The Chinese believe their empire grew not from conquest, but rather by absorption of surrounding barbarian peoples who fervently wished to become Chinese. The Chinese persisted in perceiving themselves as innately superior to other ethnicities throughout their long history until much of their country was colonized by Europeans and the Japanese in the 19th century.

Henry Kissinger’s On China begins with a synopsis of that long history because he believes it is necessary in order to understand the path of Chinese diplomacy in the modern world. His account details Chinese diplomacy from the 19th century through the present day, with an emphasis on the period after the founding of the People’s Republic in 1948. He credits modern Chinese leaders from Mao Zedong through Deng Xiaoping through Jiang Zemin with having great patience and an extraordinarily long-term view of world history. Zhou Enlai, Kissinger’s counterpart under Mao, when asked what he thought of the French Revolution, replied that “it was too early to tell.”

Henry Kissinger and Zhou Enlai in 1971

An organizing theme in Kissinger’s analysis of relations between China and the West is the contrast between the board games of wei qi and chess. [Wei qi is the game known as “Go” in English.] The Chinese approach, like good strategy in wei qi, requires the avoidance of encirclement. The Western powers historically have sought head-on clashes with clear winners and losers, more like chess. Kissinger uses this analogy to describe Chinese behavior in the Korean War, the Taiwan Strait crises of the 1950’s, and China’s 1962 war with India.

Wei Qi, or Go game board

Not renowned for his humility, Kissinger might have subtitled this book “How I personally Saved Western Civilization.” Nevertheless, he is an appropriate chronicler of recent Chinese history since he (along with Richard Nixon, Mao, and Zhou) may have had as much to do with China’s “opening up” to the West as any other human being. The implicit evaluations in his account are somewhat influenced by his personal interactions with the other dramatis personae. For example, Kissinger seems to admire Mao, crediting him with great wisdom despite the fact that his Great Leap Forward and Cultural Revolution resulted in starvation or political persecution for millions of Chinese, in addition to stultifying China’s economy for at least a decade.

Kissinger argues that China, unlike the Soviet Union, has not attempted to expand communism beyond its historical territorial limits. China’s principal strategic problem since the founding of the Peoples’ Republic has been that it is surrounded by unfriendly neighbor states that claim some of the territory historically ruled by China. For example, the Soviet Union sought to control Outer Mongolia despite its ostensible communal bonds of communist ideology. In addition, India and China have long disputed their boundary in the Himalayas, and even fought a short nasty war over its location in 1962. In Kissinger’s view, China’s intervention in the Korean War was not motivated so much by a desire to protect a fraternal communist state as it was a straight forward defense of its own frontier.

Nixon and Kissinger were relatively indifferent to Chinese internal politics, and were able to reach an accommodation with Mao over many international issues because of their mutual distrust of Soviet expansionism. China did not intervene in America’s Vietnam War in any meaningful way because it valued its growing relationship with the United States. In fact, China and Vietnam are historical rivals and even fought a brief war with each other once the United States abandoned the area.

The most difficult issue between the United States and China has been the status of Taiwan, which China views as its own breakaway province. Kissinger and Nixon had to contend with a powerful “China lobby” in the U.S. Congress that favored recognizing the Nationalist government in Taipei over Mao’s government. Nevertheless, Kissinger was able to reach an accommodation with the communists because of their patience and long-term approach to international relations. The temporary “solution” was embodied in the so-called Shanghai Communiqué, whereby the United States recognized that there was only one China, which included both the mainland and Taiwan. For their part, the Chinese communist government was willing to wait (Mao said for “a hundred years”) to settle who was to rule that entire single country. Mao did not renounce the potential use of force to unite the country and tested Western resolve with several probes by artillery shelling two offshore islands controlled by the Nationalists. However, communist forbearance from escalating the violence has made it possible to live in relative peace.

Kissinger and Deng Xiaoping in 1985

Mao’s successor, Deng Xiaoping, pretty much abandoned the centrally controlled communist economic ideology in favor of a more market-driven model. As a result, China’s economy has made great strides. Deng and his successors, however, have maintained tight control over the political process. China remains a one-party state, with all political power residing in the “Party,” even if it remains communist in name only.

Kissinger muses on the tension between the “realist” and “idealist” schools of American foreign policy. Complicating the current relationship between the U.S. and China has been the idealistic movement in U.S. policy to push for the recognition of “human rights” in foreign countries, something that probably never occurred to Kissinger when he was in power. Ever pragmatic, Kissinger recognizes that a realistic approach to policy must be aware of the power of idealistic concepts to influence behavior. The Chinese, on the other hand, highly resent any effort by foreigners to influence the internal affairs of China.

Mutual distrust of the Soviet Union thrust the U.S. and China together. One might expect that the disintegration of the U.S.S.R. would provide the occasion to cease cooperation. In fact, one of the tensest periods in U.S.-China relations occurred in the aftermath of the collapse of the Soviet Union when the Chinese brutally suppressed their own people in the Tiananmen Square riots. Careful diplomacy by George H. W. Bush’s government assured the Chinese that the U.S. would not interfere with China’s internal politics, although it had to make some disparaging remarks to assuage American domestic opinion. Thus, despite the significant differences in perceptions and approaches, the U.S. and China have avoided armed conflict with one another since 1954 and have become highly integrated with each other’s economy.

On June 4, 1989, Chinese troops and tanks attacked pro-democracy protesters who had occupied Beijing's central Tiananmen Square for more than six weeks.

In the final chapter, Kissinger discusses the difficulty in maintaining peaceful relations with China stemming from the inevitable tension caused by overlapping of national interests of the two nations in East Asia and the Western Pacific. Major challenges to dealing with China in the future will be how much the U.S. attempts to prod the Chinese toward establishing democratic institutions and how aggressively China asserts its new found economic and military power in that area. Kissinger remains cautiously optimistic that competent diplomacy on both sides can avoid serious conflict.

Evaluation: Although one can make fun of Kissinger’s enormous self-confidence, he really knows his stuff. This book is articulate, accurate, probing, and comprehensive. I highly recommend it, especially to those currently trying to formulate policy for the region.

Rating: 4.5/5

Published by Penguin Press, 2011

January 24, 1993 – Death of Thurgood Marshall & Review of “Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America” by Gilbert King

This masterful and riveting non-fiction book is about one of the bravest men in the history of this country, who died on this day in history. The book is also a useful corrective to anyone who thought (from reading The Help, for instance) that Jim Crow America wasn’t so bad. Or worse, those who thought that what was described in The Help was as bad as it got.

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Gilbert King, who has written about U.S. Supreme Court history for both The Washington Post and The New York Times, argues that by the mid-1940’s, Thurgood Marshall, the grandson of a mixed-race slave, “was engineering the greatest social transformation in American since the Reconstruction era.” With a rhetorical facility (“benighted towns billeting hostile prosecutors”) that transcends the sobering subject matter, King allows you to forget you are reading non-fiction, but he never allows you to forget you are reading a genuine horror story.

Thurgood Marshall and his colleagues in the Legal Defense Fund of the NAACP traveled throughout the South in the 1950’s, trying to fight white supremacy using the weapon of the Constitution. Marshall knew he could not win cases at the local or state level, so his goal became to establish firm grounds for appeals on record. If favorable rulings on equal protection could be obtained in higher courts, these precedents could then be used as additional building blocks for the rights of blacks.

The story of Marshall’s battle is told by a focus on one particular case, that of the Groveland Boys, which was, according to King:

…key to Marshall’s perception of himself as a crusader for civil rights, as a lawyer, willing to stand up to racist judges and prosecutors, murderous law enforcement officials, and the Klan in order to save the lives of young men falsely accused of capital crimes – even if it nearly killed him.”

And he was nearly killed a number of times.

Thurgood Marshall as a young man

The case of the Groveland Boys made national news at the time, and also had a significant impact upon the NAACP’s goals for future litigation. It took place in Florida, a state that somehow escaped the bad reputation attributed to Mississippi, Georgia, or Louisiana even though it had a higher per capital lynching rate. King notes:

In the postwar decade Florida would…prove to be a state with a boundless capacity for racial inhumanity, even by measure of the rest of the South…”

In Groveland, the Klan was populated by lawmen, and blacks had no hope of protection. So it was that when four young black men were arrested for the rape of a young white girl, in spite of the fact that no semen was found in her, or that two of the boys weren’t even in the area that night, a conviction and death penalty for all four boys was a foregone conclusion. Two of the young men were in the area, and they were World War II veterans, the object of particular rancor among white southerners since these veterans no longer were acting subservient enough.

Photo of Willis McCall taken in 1951, 15 minutes after he claimed to have been attacked by Sam Shepherd and Walter Irvin, handcuffed prisoners. He shot them both, killing Shepherd. Irvin claimed he shot them in cold blood, with no provocation.

Photo of Willis McCall taken in 1951, 15 minutes after he claimed to have been attacked by Sam Shepherd and Walter Irvin, handcuffed prisoners. He shot them both, killing Shepherd. Irvin claimed he shot them in cold blood, with no provocation.

The book describes the horrific events that surrounded this case, including the beatings of suspects and murder of three of them by the sheriff, who managed to remain in office until 1972 when he was finally suspended for kicking to death a mentally retarded black prisoner in his cell; the personal risks with their lives taken by all the defense lawyers; and the jaw-dropping injustice in the courtroom. It also enumerates the pressures on Marshall, who was simultaneously working on arguments for Brown v. Board of Education to be argued before the U.S. Supreme Court. While desperate stays-of-execution were filed in the Groveland Case, Marshall was forced to respond to the Supreme Court’s order that all five of the segregation cases coalesced into Brown v. Board had to be reargued in terms of the statutory intent of the equal protection clause in the Fourteenth Amendment.

It’s an amazing story, and my respect for Marshall increased tremendously as a result of it.

Evaluation: This is a book that should be required reading. This horrifying, edge-of-your-seat tale really happened, and not that long ago. Its repercussions helped make the country what it is today. King, who unearthed FBI files that were under seal for sixty years, has done an outstanding job in telling this story which manages to be heart-breaking, inspiring, infuriating, and admirable all at once.

Thurgood Marshall in 1951

Thurgood Marshall in 1951

Rating: 5/5

Published by Harper, an imprint of HarperCollins Publishers, 2012

Note: This book won the 2013 Pulitzer Prize for non-fiction.

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.” 

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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

Book Review of “The Nine: Inside the Secret World of the Supreme Court” by Jeffrey Toobin

Books about constitutional law and court cases can be abstruse or fascinating, and this book definitely falls into the latter camp. Toobin does a terrific job of weaving the stories of the personalities of the recent Supreme Court into a review of the decisions they have handled. In particular, he focuses on cases challenging Roe v. Wade, affirmative action, gay rights, executive privilege, and other issues that now divide the country.

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Toobin maintains that the Constitution’s flexibility allows ideology to trump precedent. He avers:

…when it comes to the incendiary matters that come before the Court, what matters is not the quality of arguments but the identity of the Justices.”

Therefore, he concludes,

…one factor only will determine the future of the Supreme Court: the outcome of presidential elections.”

He explains how and why each of the recent Justices got the presidential nomination, and what the appointments have meant for the Court and the Country.

It is downright scary to hear Toobin’s story of how the far right, through such organizations as the Federalist Society, successfully pushed its agenda onto the Court, even before the more active intervention of monied groups today. Sandra Day O’Connor’s abhorrence of the direction taken by the Republican party helped push her to the left of where she started out. As a result, she took a key role in tipping decisions 5-4 toward the more liberal end of the spectrum. When she left the Court to take care of her ailing husband, the only person remaining who was even close to the “middle” was Anthony Kennedy.

Toobin has wonderful anecdotes to share about the justices, although he clearly knows the most about those who have been there the longest. And he didn’t seem to have many insights into the character of Clarence Thomas at the time of this book’s writing. But the information he does have on the justices is riveting, and Toobin’s writing is clear, sharp, and consistently entertaining.

Verdict: Read this book!

Rating: 4/5

Published by Doubleday, an imprint of The Doubleday Broadway Publishing Group, a division of Random House, Inc., 2007

Review of “Smoke Over Birkenau” by Liana Millu

Liana Millu was an Jewish Italian Partisan who was arrested in 1944 and sent to Auschwitz-Birkenau. Of the 672 people in her transport, 57 lived to return home. Smoke Over Birkenau is one of the few testimonies to record the experience of women in the Nazi concentration camps. The six vignettes in this slim volume tell the stories of some of the women who were the most memorable to Liana. The continuation of quotidian “human” concerns in the midst of such inhumanity is awe-inspiring: birthdays, jealousy, generosity, greed, recipes, clothes, birth, and of course, death. The details of life in the women’s barracks are amazing, frightening, humbling, and engrossing.

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The inmates often struggled with the big question: where was God? At one point, Liana recalls herself asking:

Whatever will become of me? I wondered, the mud splattering at my feet. Whatever will become of me? And of Lili, and all the rest? It wasn’t so much the fear of death that pained me, but rather the galling futility of this existence suspended between two voids. Here today, gone tomorrow. What could be the point of all this suffering, bounded by parentheses, in the midst of nothing? Was it possible some God was looking down on me from above? Why did he put me here in the first place if I was simply to suffer and vanish without a trace? Had he no mercy, this God?”

Lotti, another inmate who chose to become a member of the Auschwitz Puffkommando (brothel), was bemoaning the rejection by her sister and fellow-inmate Gustine over her choice:

She was always dragging God’s name into it, Gustine was. It became an obsession with her. ‘God won’t forsake his creatures. God knows what he’s doing. God can’t allow injustice to triumph.’ And meanwhile the crematorium just keeps puffing away and ashes are dropping on my head.”

Most of the vignettes end with ashes. Yet Millu gives life again to the many women who joined the columns of smoke rising from the crematoria of Birkenau.

Published in English by Northwestern University Press, 1998

Note: Translation by Sharon Schwartz was the winner of the PEN Renato Poggioli Translation Award

Review of “The Secret War: Spies, Ciphers, and Guerrillas, 1939 – 1945” by Max Hastings

Historian Max Hastings contends in his preface that the contributions of espionage were not significant in WWII, at least not without factoring in the political will and military prowess to exploit any intelligence. He avers that perhaps only “one-thousandth of 1 per cent of material garnered from secret sources by all the belligerents in World War II contributed to changing battle field outcomes.” Yet that tiny fraction was of immense value.

Nevertheless, he provocatively suggests: “The record suggests that official secrecy does more to protect intelligence agencies from domestic accountability for their own follies than to shield them from enemy penetration.”

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There are a number of barriers to the success of spycraft. One is the large amount of information, misinformation, misdirection, and outright fabrications from which “pearls of revelation” must be extracted. Another is the reluctance of leaders to accept information that runs counter to their own beliefs, and the reluctance of intelligence agents to risk angering them (especially relevant when your boss was Stalin or Hitler). But leaders on all sides, Hastings reports, dismissed information that contradicted their beliefs. Hastings quotes a journalist who noted wittily: “Career officers and politicians have a strong interest in cooking raw intelligence to make their masters’ favourite dishes.” A third is a “failure of will”: even when you get the information, you are unwilling or unable to act upon it. Fourth, there is the problem that intelligence becomes out-of-date as soon as (if not before) it is received. Fifth, there is sometimes a reluctance to act upon information because it would reveal too much about decryption prowess in the case of signals intelligence, or it might compromise sources in the case of human intelligence. And finally, intelligence is often assessed from the worldview of the those who receive the intelligence, without a full understanding that enemies might have radically different value systems.

So if much intelligence is of limited use, and if it doesn’t really matter unless it can be acted upon, what is the purpose of this very long, in-depth study of global intelligence efforts during World War II? The main reason is that it is just interesting. The topic has an undeniable appeal to those of us so long exposed to James Bond movies and Cold War thrillers. There are plenty of amazing and heroic vignettes, and a good look from the side, as it were, of how military and political leaders analyzed what information their agents gleaned.

Evaluation: Who is willing to spy against their own country and why? What sort of people are willing to risk their lives to spy against and inside of other countries in the midst of a very dangerous war? And is all that risk and expense worth it? What purpose does it actually serve? This book provides detailed answers to all these questions and more.

Rating: 3.5/5

Published by Harper, an imprint of HarperCollins Publishers, 2016