Review of “The Second Amendment: A Biography” by Michael Waldman

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Michael Waldman is a professor of law at New York University. The Second Amendment: A Biography is an erudite and informative analysis of the history of the interpretation of that amendment by the Founding Fathers, the Supreme Court, and various legal scholars. Waldman states:

For 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias….then in 2008, the U.S. Supreme Court upended two centuries of precedent. In…District of Columbia V. Heller [it] declared the Constitution confers a right to own a gun for self-defense in the home.”

On a literal level, this book is the story of how that change came about. On a “meta” level, it is a description of the process by which the constitution is interpreted, and how interpretations evolve over time. On a societal level, the content of this book is extremely important because of its ramifications on the power of the government, on any tier, to deal with the current spate of gun violence.

The Second Amendment has a curious grammatical construction:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

How does the reference to “the militia” in the introductory phrase affect the interpretation of the amendment as a whole? Waldman’s historical analysis makes clear that the debates that preceded the adoption of the amendment were concerned with the role of the militia (what we would now call the National Guard), and had virtually nothing to say about an individual’s right “to keep and bear arms.” Moreover, the amendment says that the right to bear arms is that of the people (presumably acting in the context of the militia), not individuals. Ironically, it must be noted that the militias were composed of white males who were expected to supply their own weapons to participate in military training. Those men were not merely allowed to keep rifles; they were required to do so.

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In the late 18th century, most Americans feared the establishment of a standing army—that was what autocrats used to impinge on the liberty of their subjects. Local militias were generally thought to be adequate to protect the populace from insurrection or from marauding Native Americans. Remember that the Bill of Rights was adopted to curb the power of the federal government; it did not address the powers of the states. Views may have changed somewhat when in Shay’s Rebellion it was the local militia that had to be put down by the national army, led by George Washington.

Prior to the Civil War, most courts (with the exception of Kentucky’s) interpreted the scope of the amendment to be limited to the militia. A key was the phrase “bear arms” was understood to have a military meaning.

In the immediate aftermath of the Civil War, the Fourteenth Amendment was enacted, giving all persons the right to “equal protection” under the law. But that hardly mattered in the South. In 1872, the Louisiana gubernatorial race pitted a black candidate against a racist white Democrat. The results were contested, and members of both races formed rival militias. On Easter Sunday, the paramilitary White League captured and later massacred about 100 blacks. As was typical of the time, white state prosecutors saw no reason to bring criminal charges like murder against white defendants for killing blacks. But federal prosecutors charged numerous white defendants with violating the civil rights of the blacks, including the right to bear arms. Only three were convicted, and they appealed, ultimately reaching the U.S. Supreme Court in 1876. In U.S. v. Cruikshank, the Justices held that the Second Amendment (like the rest of the bill of Rights) applied only to Congress, and so no murdered blacks’ civil rights had been violated. The majority opinion neglected to mention that the case involved a massacre.

As a constitutional matter, the Cruikshank case ruled that the Second Amendment did not apply to the states. As a result, many states and local municipalities enacted gun control laws, some quite restrictive. In two cases 19th century cases, Presser v. Illinois and Miller v. Texas, the U.S. Supreme Court ruled that the Second Amendment did not have an individual right to carry weapons, although it did say that the states could not ban guns to the extent that it would interfere with the federal government’s military needs.

With the coming of the Prohibition Era, gun violence increased dramatically as rival gangs had to enforce their “contracts” without the aid of the courts. This led to the passage of the first federal gun legislation, the National Firearms Act of 1934, which heavily taxed machine guns and sawed-off shot guns and prohibited their transportation over state lines. The Supreme Court upheld the legislation in United States v. Miller. It noted that there was no evidence that a sawed-off shot gun “has some reasonable relationship to the preservation or efficiency of a well regulated militia [and so] we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

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Gun regulation increased after the assassinations of John F. Kennedy, Martin Luther King, and Robert Kennedy. Congress passed the Gun Control Act of 1968, which required licensing of gun dealers and banned the importation of military style weapons. Chief Justice Warren Burger, no flaming liberal, characterized the argument that the amendment created an individual’s right to own a gun as follows:

This has been the subject of one of the greatest pieces of fraud, I repeat the word “fraud,” on the American public by special interest groups that I have ever seen in my lifetime. Now just look at those words. There are only three lines to that amendment. A well regulated militia—if the militia, which was going to be the state army, was going to be well regulated, why shouldn’t 16 and 17 and 18 or any other age persons be regulated in the use of arms the way an automobile is regulated? It’s got to be registered, that you can’t just deal with at will.”

In Waldman’s words, “There was no more settled view in constitutional law than that the Second Amendment did not protect an individual right to own a gun.”

But then came the conservative revolution. The National Rifle Association organized single issue voters to oppose candidates who favored gun regulation. It took on an “apocalyptic, insurrectionist tone.” Wayne LaPierre and Charlton Heston riled up the rank and file. In 1959 60% of Americans favored banning handguns; that dropped to 41% by 1975, and all the way to 24% in 2012.

But more insidiously, a group of conservative law professors and lawyers began to write articles arguing that an originalist approach to constitutional interpretation established an individual right—this despite the fact that (as Waldman shows) history and nearly all historians were against them. They added gravitas to their arguments by citing each other, having little or no legal precedent to rely on. More importantly, the political composition of the Supreme Court became more conservative with the appointments of Scalia, Thomas, Roberts, and Alito.

Supreme Court Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts

Supreme Court Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts

The process culminated in 2008 with the Heller decision, authored by Scalia. Waldman gives a blistering criticism of that opinion. He then shows that Richard Posner, perhaps the most respected jurist (both a judge on the Seventh Circuit Court of Appeals and a University of Chicago law professor) in America gave an even more scathing analysis of the Heller opinion in Chicago v. McDonald , a case in which Posner felt bound by Heller. Waldman calls Posner’s opinion “a masterpiece of passive aggression.”

In some way, Heller may actually help gun control advocates. It has taken away the NRA’s argument that the government is trying to take away their guns. Heller says it can’t do that. What it may be able to do is reasonable, limited regulation. And courts seem willing to uphold such regulation. However, Waldman muses that “it is clear that the gun issue is not one of evidence-based public safety policy, but of culture.” He opines that “as a legal matter, Heller may create space for reasonable gun regulation. As a matter of politics and culture, though, it can only deepen polarization.”

Waldman’s concluding chapter contains some very interesting observations, the most striking of which I quote below:

A full scan of American history shows that the public, fully engaged, has made constitutional law every bit as much as jurists and lawyers….[T]he reason the Court has pronounced that limited right [individual gun ownership] is not because the Framers of the Second Amendment intended it to confer it. (They didn’t.) Nor is it because of a dictionary from 1730, or a state court judicial interpretation from 1830, or even a Supreme Court case from 1939. Rather, it is because the people today believe there is such a right. The country has evolved—the Constitution is living, as it were—and the widespread acceptance of some form of gun ownership is part of the way Americans think. Not then, now. Heller can be justified not as originalism, but as something more rooted in common sense: it reflected a popular consensus won by focused activists.”

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Evaluation: This book brings a lot of light to some issues about which one often finds only heat. It should be read by all citizens concerned with gun violence and gun rights.

Note: For a satiric could-have-almost-happened take on the issue, see this humorous imagined conversation between James Madison and Thomas Jefferson from The New Yorker.

Rating: 4/5 stars

Published by Simon & Schuster, 2014

Review of “Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America” by Wil Haygood

Thurgood Marshall may not have worn a cape and tights, but he was, nevertheless, every inch a superhero.

Wil Haygood takes us back to Marshall’s childhood to tell us what it was like for a young, smart, ambitious kid growing up in a world in which he couldn’t even use most public bathrooms or be admitted to many restaurants and hotels. But this never diminished his spirit and determination. On the contrary, it inspired him further not only to achieve, but to work for change for everyone else.

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This book uses the Senate confirmation hearings for Marshall’s Supreme Court nomination as scaffolding to structure his story; the author goes back and forth in time, basically telling in large part the history of black America from post-Reconstruction times onward. It is a nasty and brutal history which will often have you cringing (there are, for example, two blow-by-blow accounts of lynchings, though the accounts are quite germane), but will greatly enhance your understanding of the country as it is today.

Thurgood Marshall with the president who nominated him to the Supreme Court, Lyndon Johnson

Thurgood Marshall with the president who nominated him to the Supreme Court, Lyndon Johnson

Evaluation: If you only read about the life of one trailblazing hero, I recommend reading about Thurgood Marshall. His unparalleled bravery in spite of constant threats against his life, his unflagging dedication to others, and his unfailing good humor and optimism in the face of unrelenting efforts by whites to keep him down, is utterly amazing and inspirational.

I’ve seen some reviews opine that Devil in the Grove, also about Marshall, is superior to this book. I found it excellent as well, but the fact is, when you’re writing about a true giant of a man like Marshall, it’s hard to go wrong.

Rating: 4.5/5

Hardcover published by Alfred A. Knopf, 2015. Audiobook published unabridged on 12 CDs (14 1/2 listening hours) by Random House Audio, an imprint of the Penguin Random House Audio Publishing Group, 2014

A Few Notes on the Audio Production: The narrator, Dominic Hoffman, is nothing short of sensational. He has a couple of mispronunciations (e.g., Estes Kefauver), but I can’t really complain because his overall performance is so outstanding.

January 19, 1874 – Morrison Waite Nominated as U.S. Supreme Court Chief Justice

On this day in history, President Ulysses Grant nominated Morrison Waite, an attorney and politician from Ohio, to serve as the seventh Chief Justice of the U.S. Supreme Court. Waite was far from Grant’s first choice.

Chief Justice Salmon P. Chase had died in May 1873, and Grant waited six months before first offering the seat that November to Senator Roscoe Conkling of New York, who declined. Grant next offered the Chief Justiceship to senators Oliver Morton of Indiana and Timothy Howe of Wisconsin, then to his Secretary of State, Hamilton Fish. He nominated Attorney General George H. Williams to the Senate on December 1, but withdrew the nomination a month later at Williams’ request after charges of corruption made his confirmation all but certain to fail. One day after withdrawing Williams, Grant nominated former Attorney General Caleb Cushing, but withdrew it after Republican Senators alleged Civil War-era connections between Cushing and the Confederate President Jefferson Davis. Finally, after persistent lobbying from Ohioans, Grant nominated the little-known Waite.

The former Secretary of the Navy, Gideon Welles, remarked of Waite that, “It is a wonder that Grant did not pick up some old acquaintance, who was a stage driver or bartender, for the place.” But Waite was non-divisive, and perhaps more importantly, willing, and he was confirmed unanimously as Chief Justice on January 21, 1874, receiving his commission the same day. Waite took the oath of office on March 4, 1874.

Chief Justice Morrison Waite

Chief Justice Morrison Waite

Chief Justice Waite never became a significant intellectual force on the Supreme Court. But he was said to have good managerial skills. During Waite’s tenure, the Court decided some 3,470 cases, the opinions for one-third of which Waite drafted himself.

A primary theme in his opinions was the balance of federal and state authority. He upheld states’ rights in cases such as United States v. Cruikshank, 92 U.S. 542 (1875) in which the Court overturned the convictions of three men accused of massacring at least 105 blacks (and perhaps up to 300) in the Colfax massacre at the Grant Parish, Louisiana, courthouse on Easter 1873. Waite intoned:

Sovereignty, for the protection of the rights of life and personal liberty within the respective States, rests alone with the States.”

At that time, of course, and for almost the next one hundred years, the southern states ignored the violence against and intimidation of blacks, and indeed, were sometimes complicit in it.

United States v. Cruikshank regularly makes the rankings as one of the worst Supreme Court decisions in American history. The fact that the perpetrators of the violence were never convicted of a crime served to embolden terrorist organizations like the Ku Klux Klan and other groups seeking to restore racial hierarchy to the South.  
 
Waite also authored the opinion in Minor v. Happersett (88 U.S. 162, 1875), upholding the states’ right to deny women the franchise. He observed in part:

… 3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had.
4. At the time of the adoption of that amendment, suffrage was not coextensive with the citizenship of the States; nor was it at the time of the adoption of the Constitution.
5. Neither the Constitution nor the fourteenth amendment made all citizens voters.
6. A provision in a State constitution which confines the right of voting to “male citizens of the United States,” is no violation of the Federal Constitution. In such a State women have no right to vote.”

Even after suffering a breakdown in his health, Waite refused to retire. Almost to the moment of his unexpected death from pneumonia in 1988, he was still drafting opinions and leading the Court.

January 5, 1903 – The U.S. Supreme Court Decides Lone Wolf V. Hitchcock

This Supreme Court case arose from a dispute concerning the Medicine Lodge Treaty of 1867 regarding the the Kiowa-Comanche reservation in present-day Oklahoma. The treaty guaranteed the Kiowa and Comanche “absolute and undisturbed use and occupation” of these reservation lands and stipulated that in order for any portion of the reservation lands to be ceded to the U.S., three-fourths of the adult males in the tribe had to give their approval.

Oklahoma and Indian Territories 1890

Oklahoma and Indian Territories 1890

In 1900, without Native American consent, Congress passed an Allotment Act that divided the Kiowa-Comanche lands into 160-acre allotments to offer to the Native American residents of the reservation. Those who accepted the allotments were also given American citizenship. The “surplus” lands left after the allotment were to be sold to whites, and the Kiowa and Comanche were to receive about one dollar per acre for these lands. This opened some 2 million acres of reservation lands to settlement by non-Indians.

On August 6, 1901, with the official opening of the former Kiowa-Comanche-Apache (Plains Apache) Reservation (KCA), holders of the “lucky numbers” swept across the prairies in a mad rush to claim homesteads, as the Oklahoma History Center reports, noting that “[m]issionaries on the former reservation, now called the KCA Jurisdiction, lamented the high crime rates, drunkenness, unsanitary conditions, and diseases in [the] rag towns.”

The KCA Indians were now less than ten percent of the total population, but soon found that even what was left to them was being overrun by trespassers and squatters who “adamantly believed that they were entitled to stake out mineral rights.”

Lone Wolf in 1902

Lone Wolf in 1902

Lone Wolf, a Kiowa Indian chief, filed a complaint on behalf of the tribes in the Supreme Court of the District of Columbia, alleging that Congress’ change violated the 1867 treaty. That court dismissed the case. The United States Court of Appeals for the District of Columbia Circuit affirmed the decision. Lone Wolf and the tribes then appealed to the Supreme Court.

In Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), Justice Edward White delivered the opinion of the unanimous court in which it found, as summarized by the late legal scholar Milner S. Ball in “Constitution, Court, Indian Tribes” (1987 Am. B. Found. Res. J. 1, 54, 1987) that “Congress is given power to violate treaties with Indian nations and to exercise control over Indian lands without basis or limit in law.”

Specifically, the Court found that a treaty “cannot be adjudged to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians . . . . Congress has always exercised plenary authority over the tribal relations of the Indians and the power has always been deemed a political one not subject to be controlled by the courts.”

Justice Edward White

Justice Edward White

Justice White gave as his rationale a citation from a previous case [United States v. Kagama, 118 U.S. 375 (1886)] in which the Court argued:

These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They own no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive and by Congress, and by this Court, whenever the question has arisen.”

Professor Ball wrote that subsequent Courts continued to consider Lone Wolf “viable and acceptable,” offering examples of affirmations of the finding given by Justices Thurgood Marshall, John Paul Stevens, and Harry Blackmun. (Ball, pp. 54-5)

November 30, 1804 – U.S. Supreme Court Justice Samuel Chase Goes on Trial for Impeachment

Samuel Chase, born in Maryland in 1741, studied law in Annapolis and was admitted to the bar in 1761. In 1762, he was expelled from the Forensic Club, an Annapolis debating society, for “extremely irregular and indecent” behavior (which turns out to have involved unkind comments employing “impious language” to fellow members). Nevertheless, two years later he was elected to the Maryland General Assembly where he served for twenty years.

From 1774 to 1776, Chase was a member of the Annapolis Convention; represented Maryland at the Continental Congress; was re-elected in 1776; and signed the United States Declaration of Independence. He remained in the Continental Congress until 1778. Once again, however, he got into trouble, this time by using insider information gained through his position in Congress to try to corner the market for flour. According to his biography, he had a “burning desire for wealth and [by such means] a secure place within the gentry.” But this desire often led to unwise financial speculations. He did not get returned to the Continental Congress.

There must have been a dearth of untainted men to serve the public, however, because in 1788, Chase was appointed Chief justice of the District Criminal Court in Baltimore and served until 1796. In 1791, he became Chief Justice of the Maryland General Court, again serving until 1796. On January 26, 1796, President George Washington appointed Chase as an associate justice of the Supreme Court of the United States. Chase served on the Court until his death on June 19, 1811.

Associate Justice of the United States Supreme Court Samuel Chase, In office January 27, 1796 – June 19, 1811

Associate Justice of the United States Supreme Court Samuel Chase, In office January 27, 1796 – June 19, 1811

President Thomas Jefferson tried to have Chase impeached, as part of Jefferson’s plan to reduce Federalist influence on the Supreme Court. The eight articles of impeachment served on Chase all related to Chase’s work as a trial judge in lower circuit courts. (In that era, Supreme Court justices had the added duty of serving as individuals on circuit courts, a practice that was ended in the late 19th century.) The Jeffersonian Republicans-controlled United States Senate began the impeachment trial of Chase in early 1805, with Jefferson’s relative John Randolph of Virginia leading the prosecution.

The heart of the allegations was that political bias had informed Chase’s behavior. Chase argued that his actions were, on the contrary, motivated by adherence to precedent, judicial duty to restrain advocates from improper statements of law, and considerations of judicial efficiency.

The Senate voted to acquit Chase of all charges on March 1, 1805. He is the only U.S. Supreme Court justice to have been impeached.

Review of “The Court and the World: American Law and the New Global Realities” by Justice Stephen Breyer

This is a consistently interesting book, much more so than one would have expected from the reviews in major papers following its initial release.

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The book is about conflict of laws, first between the judicial and political branches of the American government, and then between the laws of the U.S. and the laws in the rest of the world. None of the conflicts arise from simple problems. The law rarely provides a black-and-white line, which is of course why so many cases need to be adjudicated, and why the courts so often have split decisions.

In the U.S., there have often been challenges to exercises of executive power by the President. How does the Court decide if the President has overstepped the limits of the Constitution? In previous eras, the Court was reluctant to decide: the President, after all, is privy to a host of considerations, including secret intelligence, treaties, and sub rosa agreements with other governments about which the Court does not and cannot know. In recent years, however, the Court has jumped into the fray, especially with cases arising out of the capture and trial of international terrorists in general, and the prison in Guantanamo in particular. Cases involving terrorists are especially interesting because most precedent involving the use of extraordinary powers by the executive pertains to specific, time-limited wars. In modern times, the war of terror is constant and threats diffuse. How then should executive power be contained or at least balanced?

Then there are the many cases arising out of the globalization of the economy. As Breyer observes about commerce:

“…national markets are now so interconnected and integrated that the most ordinary commercial transactions can involve a host of different activities and entities across the globe.”

How, for example, are American laws to be applied with respect to companies which have operations, sales, manufacturing, and distribution spread around the globe, and can be owned by holding companies in the U.S. or abroad, or may have labor outsourced in the U.S. or abroad, or may import parts and components from anywhere? What about the case of shoddy goods made in, say, Belgium for an American company and shipped to the U.S. on a ship manufactured in the Netherlands but owned by the United Kingdom? Or what about securities fraud committed by a holding company overseas that owns an American company? Or a conspiracy that takes place over the internet? If there is a perceived infringement of the law at any stage in the process at any location, who can be found libel and in which country’s courts? And how might the ruling of one country’s courts affect international relations?

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Finally, there is the somewhat bizarre existence of the Alien Tort Statute, enacted by Congress in 1789 and giving federal district courts original jurisdiction “of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although the statute was mostly ignored for the first two hundred years after its passage, since 1980 it has gotten new life, which has opened a whole new international can of worms.

Breyer also argues that the need for courts to understand technical as well as legal dimensions of the world and how other laws intersect with our own is increasingly critical. There are a number of international courts now in operation, but their success depends on the cooperation of nations which agree to hold their judgments binding. The United States, for example, is not one of the 122 nations agreeing to abide by the findings of the International Criminal Court (ICC). The United States is a party to the treaty that created the International Court of Justice (ICJ), but as one legal scholar notes (Sean D. Murphy, The United States and the International Court of Justice: Coping with Antinomies in THE UNITED STATES AND INTERNATIONAL COURTS AND TRIBUNALS (Cesare Romano, ed., 2008):

Since 1946, the United States has had an uneasy relationship with the International Court of Justice (ICJ or World Court or Court). On the one hand, the United States embraces the rule of law within its own society and, in principle, within the international system of states. The United States has been and remains an active participant in cases before the Court, appearing before it several times, more than any other state, even in recent years. On the other hand, the United States has never been willing to submit itself to the plenary authority of the Court, and has typically reacted negatively to decisions by the Court that are adverse to U.S. interests.”

Breyer discusses several instances in which the ICJ has ruled against the U.S. and the cases have gone to the Supreme Court for a determination of whether foreign courts – “created pursuant to a treaty ratified by the United States” – can issue judgments that are binding within the United States. It’s probably not a surprise that the Court has ruled (particularly in Iguarta-De La Rosa v. United States, 417 F. 3d 145, 150 (1st cir. 2005) the U.S. need not follow ICJ decisions in matters of domestic law unless a provision in a treaty ratified by the Senate is made into a domestic law by the House. However, this caveat applies to only some treaties – it’s all very complicated; the Court must decide if the caveat applies on a case-by-case basis. But obviously, most nations, especially the U.S., don’t want to give up judicial sovereignty.

Justice Breyer

Justice Breyer

Nevertheless, Breyer’s point is that increasingly foreign law and foreign considerations will impact law in the U.S. and influence decisions of the Supreme Court. The Court should extend its range of legal and practical reference. One would think this conclusion is so obvious as to be absurd, but in fact, there are several members of the current Court who are opposed to taking anything into consideration besides domestic concerns. One wonders how they can even think about the complicated cases that now come before the Court with this attitude. Most notably, Justice Breyer has often sparred with Justice Scalia on this subject. Moreover, as Breyer reports, in 2004, 74 members of Congress sponsored legislation stating:

…that judicial determinations regarding the meaning of the laws of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements . . . inform an understanding of the original meaning of the laws of the United States.” (H.R. Res. 568, 108th Cong., 2004)

Where does this resistance come from? Mostly, it stems from political conservatives, who resent, for example, the tendency of most of the rest of the Western world to reject the death penalty, to recognize same-sex relationships, and to have stricter laws about access to guns.

One can only hope that the rule of reason will return to all branches of the U.S. Government, but unfortunately, it is beginning to look more and more unlikely.

Evaluation: Breyer provides an excellent analysis of the facts and issues at stake for each case he discusses, helping readers to understand just how complex the law can be. He presents both sides of the decisions fairly, whether he was in agreement or not, and makes a very good case for the need for increasing knowledge of world law by jurists.

Rating: 4/5

Hardback published by Alfred A. Knopf, a division of Penguin Random House LLC, 2015

Audio Book Run time: 12 hrs, 38 mins. Available as an unabridged digital download from Penguin Random House Audio (2015)

A Note on the Audio Production:

Breyer reads his book well, but employs a number of pronunciation anomalies.

Disputes, for example, are DIS-putes rather than dis-PUTES. He says de-CADE rather than DEC-ade. These may just be regionalisms. Justice Breyer has trouble saying “integral” but so do I. (Let’s get rid of that word!) But the most jarring is the most surprising: his pronunciation of amicus curiae. This is a Latin phrase meaning “friend of the court” which refers to briefs filed by interested outsiders in a legal case. I have always heard one of two pronunciations of “amicus,” either as uh-MEE-kuss or AM-uh-kuss, the first being more common. I was astounded to hear Breyer say “a-MY-cus,” I thought I must have been wrong all these years, and looked it up. I found a most humorous article by language guru William Safire commenting on this very tendency of Breyer’s. He writes:

Tony Mauro, who watches the Supreme Court with a legal-eagle eye for Legal Times, noted that Justice Stephen Breyer has his own pronunciation. ‘During arguments Jan. 15 in Lambrix v. Singletary,’ wrote Mauro, ‘Breyer said ‘a-MY-cus’ so many times that the hapless lawyer before him, solo practitioner Matthew Lawry, adopted the same, clearly incorrect pronunciation just to be accommodating.’ The reporter checked with Prof. William McCarthy of the Greek and Latin department of Catholic University, who agreed that Breyer’s pronunciation was, to say the least, nonstandard; the professor preferred ‘AH-me-kous.'”

Safire went on to say that he then consulted Bryan Garner, the editor of the Dictionary of Modern Legal Usage and the seventh edition of Black’s Law Dictionary. Garner told him:

‘Justice Breyer has adopted an Anglo-Latin pronunciation. . . ‘It will make any Latin teacher apoplectic. But it has English and American history behind it, and that, in the end, matters more than how Cicero might have mouthed the phrase.’”

At any rate, at track 46, Breyer switches to ah-ME-kous. By track 49, however, he is back to ah-MY-cus.

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November 15, 1811 – Nomination of Supreme Court Justice Joseph Story

On this day in history, Joseph Story was nominated by President James Madison to take the Supreme Court seat vacated by William Cushing. (He was the longest-serving of the Court’s original members, sitting on the bench for 21 years.) Story was confirmed by the United States Senate, and received his commission on November 18, 1811. At age 32, he was the youngest person ever appointed to the Court.

Associate Justice of the United States Supreme Court Joseph Story, in office November 18, 1811 – September 10, 1845

Associate Justice of the United States Supreme Court Joseph Story, in office November 18, 1811 – September 10, 1845

Story was born in Marblehead, Massachusetts. He went to Harvard, where he graduated second in his class, and practiced law in Salem, Massachusetts, from 1801 to 1811. Politically, he was a member of Jefferson’s Republican-Democrat Party, and so Madison assumed he was appointing an ally when he nominated Story to the Supreme Court in 1811.

Much to the chagrin of Jefferson and Madison, however, Story aligned himself with Jefferson’s nemesis, Chief Justice John Marshall, just as their other appointments had done.

In his later years of his career on the Supreme Court, Justice Story was the author of two of the Court’s most important decisions related to slavery. Though personally opposed to slavery, Story believed the Constitution recognized and legitimized the institution. Nevertheless, he tried to construct his decisions in ways that might aid the cause of abolition.

The 1841 Amistad case (40 U.S. 518; 10 L. Ed. 826) stemmed from a 1839 incident in which Spanish slave traders had forcibly taken more than 500 captured Africans to Spanish-ruled Cuba. Spanish law prohibited the transportation of African slaves to Cuba. But Spanish officials in Cuba largely ignored that law; there was much money to be made in Cuba for the provision of labor for sugar planters.

At a slave sale in Havana, some of these slaves were purchased and transferred to the schooner Amistad for delivery at plantations along the coast of Cuba. But the slaves revolted, took over the ship, and tried to go back to Africa. They stopped at Long Island Sound in New York to get provisions. A U.S. Navy brig learned of the situation and took custody of the Amistad, requesting a hearing. The case moved up through the courts, reaching the Supreme Court in 1841.

1840 engraving depicting the Amistad revolt

1840 engraving depicting the Amistad revolt

Justice Story, speaking for the Court, declared that the men on the Amistad were seized illegally in violation of the laws and treaties of Spain. They were not slaves; they were “kidnapped Africans.” Moreover, “… in no sense could they possibly intend to import themselves here, as slaves, or for sale as slaves.” Thus, he declared them free, to be dismissed from the custody of the Court without delay.

In the 1842 case Prigg v. Pennsylvania (41 U.S. (16 Pet.) 539, 1842), the majority opinion, again written by Justice Story, affirmed the constitutionality of the Fugitive Slave Act of 1793. Justice Story maintained that the fugitive slave clause was in fact essential to the formation of the Union, but only federal agents could enforce it. His decision seemed to say that on the one hand, states had no right to protect its free citizens from being kidnapped and enslaved. But on the other, states did not have any obligation to assist in the capture and return of fugitive slaves. The resulting uproar contributed to the insistence by the South of a new fugitive slave law, which they got in 1850, and which played a large role in precipitating the Civil War.

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Story’s decisions also helped shaped early American commercial and admiralty law. Moreover, while sitting as a justice of the Supreme Court, he began teaching at Harvard Law School in 1829 and in 1833 published his Commentaries on the Constitution, which became an essential guide for American lawyers.

Story served on the Supreme Court until his death on September 10, 1845.

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