April 3, 1866 – The Supreme Court Decides Ex parte Milligan

Three cases brought to the Supreme Court during the Civil War were designated as “ex parte” because all three were brought on behalf of citizens detained by the Union Army. Ex parte Milligan 71 U.S. 2 (1866), like the others, had a defendant seeking release under the writ of habeas corpus (which requires the government to demonstrate to a federal judge the factual and legal grounds for detention).

Art. I, §9, cl. 2 of the U.S. Constitution provides that “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.” But the language does not indicate which branch of government has the power to suspend the privilege of the writ.

During the Civil War, President Lincoln issued a number of orders putting certain not-fully-loyal civilian areas in the North under military control and imposing military law. In 1864, the Union Army arrested five men in Indiana, including Lambdin Milligan. The men were charged with membership in a secret group plotting to steal weapons and to free Confederate soldiers held as prisoners of war. A military court sentenced Milligan to be hanged, but he appealed for his release under the Constitution’s right of habeas corpus.

In Ex parte Milligan, the Court was tasked with deciding whether Lincoln had followed the Constitution when he authorized martial law.

The decision was not issued until a year after the war ended and Lincoln was dead. But the issue remained important; a unanimous Court held that the President had gone too far. As an article for the American Bar Association reports:

The Court stressed that Indiana was not under attack and that Milligan was not connected with Confederate military service, nor was he a prisoner of war. He was arrested at home, not on a military maneuver. Even more important, the courts in Indiana were open and functioning normally during the war. The government could have charged him with treason and tried him in the courts, where he would have had the right to a jury and the right to a fair trial, under the Constitution.”

Thus, in this landmark decision, the Court ruled that Milligan could not be tried by a military tribunal if, as in this case, there was a civilian court available instead. To find otherwise, the Court opined, would mean that “republican government is a failure, and there is an end of liberty regulated by law.”

Justice David Davis

Justice David Davis (who served as Abraham Lincoln’s campaign manager at the 1860 Republican National Convention and was nominated to the Court by Lincoln), wrote elequently for the majority:

Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority. [emphasis added]”

Applying martial law against a citizen like Milligan, continued Davis, “destroys every guarantee of the constitution,” and cannot coexist with the concept of civil liberty: “the antagonism is irreconcilable; and, in the conflict, one or the other must perish.”

Over 150 years after the decision, it is still widely cited by scholars and the Court, especially with respect to treatment of the detention and disposition of alleged terrorists. But the Court has also narrowed its reach.

Justice [Indiana Supreme Court] Steven H. David wrote an excellent review of the subsequent cases that limited Milligan’s holding in “Ex parte Milligan and the Detainees at Guantanamo Bay: A Legacy Lost.” Justice David was appointed chief Defense counsel at Guantanamo Bay, Cuba in 2007. There, he observed, “I entered a constitutional no-man’s land of military tribunals and commissions—a veritable black hole of judicial precedent and construction.”

The status of modern terrorists who belong to organizations like Al Queda that have “declared war” against the United States is unclear. As David points out, “None of today’s detainees [in Guantanamo] are citizens of a nation at war with the United States . . . and many were detained not on the field of battle but in places far removed from active combat or military action.” The American Justice Department has chosen to treat such persons as “enemy combatants,” a category meant to subject them to military rather than civil jurisdiction.

This category may even apply to actual U.S. citizens, such as Jose Padilla, who was arrested in Chicago in 2002 on suspicion of being connected to the September 11, 2001, terrorist attacks. President George W. Bush issued an order designating Padilla as an enemy combatant and ordering him to be detained in military custody.

Congress has also approved measures, such as the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006, that attempt to limit the applicability of the writ of habeas corpus.

Justice Anthony Kennedy

In Boumediene et al. v. Bush (553 U.S. 723, 2008) Justice Anthony Kennedy wrote an opinion addressing the question “not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2.”

Without addressing the merits of the case, he concluded:

We hold that petitioners [aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba] may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.”

Justice Kennedy also commented on the importance of the Judicial Branch balancing the Executive Branch on this question:

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.”

David, writing before the time of Trump, but presciently for present times, concluded:

I firmly believe that when historians look back on this period, neither the wealth of our great nation, nor our technological advances, nor our military successes or failures will define our legacy. Our time will be judged instead by whether, in a time of national fear and perceived uncertainty, we followed the rule of law, adhered to the fundamental principles protected by our constitution, and demonstrated to the world that human rights apply to all humans, not just Americans. Did we demonstrate to ourselves that, even in the most difficult times, we practiced what we had been preaching to the world, or did we let fear—and the fear of the rule of law—consume us?”

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January 21, 1815 – Birth of John Bingham, Author of the Fourteenth Amendment

John Bingham was an important figure in the formation of the laws of the U.S. who deserves to be more well known.

Bingham was born on January 21, 1815 in Pennsylvania, moving to Ohio to live with his uncle after the death of his mother. In 1835, he enrolled at nearby Franklin College, founded by abolitionist John Walker who was also a member of the Underground Railroad. One of Bingham’s classmates at was Titus Basfield, an ex-slave who was one of the first African-Americans to receive a college degree in Ohio. The two developed a friendship that lasted for over forty years.

But Bingham had already been steeped in abolitionist influences, as he indicated in 1862 after calling chattel slavery “an infernal atrocity”: “I thank God that I learned to lisp it at my mother’s knee.” In addition, both his father Hugh and his uncle Thomas Bingham were active in abolitionist political circles.

Bingham got a law degree and became active in the Whig Party. In 1848 he served as a delegate at the Whig National Convention where he tried to introduce a platform plank that would commit Whig candidates to resist any extension of slavery to the territories.

John Bingham

With the dissolving of the Whig Party in 1854, Bingham joined the new Republican Party, and was elected to Congress. There he established himself as one of the leading congressional voices against slavery. As Leslie Goldstein explains in “The Birth and Rebirth of Civil Rights in America,” (50 Tulsa L. Rev. 317, 2015), Bingham’s publicly stated views were not as strident at the start of his career. But after the 1854 Kansas-Nebraska Act was passed, he became more vocal. And in January 1857, a shortly before the Dred Scott decision, his fully stated view had come to be that the Fifth Amendment Due Process Clause said that no person could be deprived of liberty without the kind of process involved in trials for crimes, “and since the Constitution everywhere referred to slaves as persons, Congress had been obligated since 1789 to forbid slavery in carrying out its power to admit new states.” Bingham argued, Goldstein reports, that the “primal object” of the Constitution “must be to protect each human being within its jurisdiction in the free and full enjoyment of his natural rights,” and “the equal protection of each” is a “principle of our Constitution.”

In a different speech reported by Professor Gerard Magliocca, author of a biography of Bingham, he said: “You will search in vain in the Constitution of the United States … for that word white, it is not there . . . The omission of this word — this phrase of caste — from our national charter, was not accidental, but intentional.” He added, “Black men … helped to make the Constitution, as well as to achieve the independence of the country by the terrible trial of battle.”

Congressman John A. Bingham during the Civil War. Photo by Matthew Brady

When the secession crisis began, Bingham asked the House, “What just cause of complaint has the South, or any portion of her people, against this Government? There is none.” The only injustice that could justify a revolt was that “wrong which dooms four million men and their descendants forever to abject servitude.”

But as support for the war ebbed in the North, Bingham, in the Lincoln pro-war faction, lost his seat in the 1862 elections.

Three years later, he was re-elected in the wave of pro-Lincoln sentiment that swept the country in the fall of 1864. When Lincoln was assassinated, Bingham served as one of the three military prosecutors of John Wilkes Booth’s co-conspirators, where he gave the closing argument in one of the most sensational trials of the 19th century.

John Bingham (left) along with Joseph Holt (center) and Henry Burnett (right) were the three prosecutors in charge of the Lincoln assassination trial.

In 1865, Bingham received a coveted position on joint committee charged with setting the conditions for the South’s return to the Union. Most significantly, Bingham drafted the crucial language of that 14th Amendment. It is Bingham who is responsible for the words:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This sentence would come to be the legal basis for the Supreme Court’s subsequent decisions desegregating the public schools, securing equality for women, and creating the right to sexual privacy.

In an eloquent speech to Congress given by Bingham on February 28, 1866, Bingham explained the need for and purpose of the 14th Amendment, and countered arguments against it:

The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution? That is the question, and the whole question. The adoption of the proposed amendment will take from the States no rights that belong to the States. They elect their Legislatures; they enact their laws for the punishment of crimes against life, liberty, or property; but in the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for the violation of their oaths and of the rights of their fellow‐men. Why should it not be so? That is the question.”

Professor Magliocca avers that more than any man except Abraham Lincoln, John Bingham was responsible for establishing what the Civil War meant for America’s future. And as noted in a biography of Bingham by Sergey Tokarev on the U.S. Civil Liberties website:

Writing in McCreary County, Kentucky v. American Civil Liberties Union of Kentucky (2005), Justice David Souter characterized the Fourteenth Amendment as ‘the most significant structural [constitutional] provision adopted since the original Framing.’ Yale Law School professor Akhil Reed Amar offers this assessment of Bingham’s contribution: ‘It was Bingham’s generation that in effect added a closing parenthesis after the first eight . . . amendments, distinguishing these amendments from all others. As a result, Americans today can lay claim to a federal Bill of Rights set apart from everything else, and symbolically first even if textually middling.'”

Other Supreme Court Justices have also praised Bingham, such as Hugo Black, who quoted Bingham extensively in his dissent in Adamson v. California (332 U.S. 46, 1947), observing “Bingham may, without extravagance, be called the Madison of the first section of the Fourteenth Amendment.” This particular reference is important because Black also incorporates a detailed legislative history of the formulation of that amendment by Bingham in the same dissent.

Professor Magliocca reported further in a New York Times piece on Bingham:

When the ex-Confederate States refused to ratify the 14th Amendment, Bingham crafted a legislative compromise that ordered the Union Army to organize new elections across the South that would include African-Americans. He told the House that ‘unless you put [the South] in terror of your laws, made efficient by the solemn act of the whole people to punish the violators of oaths, they will defy your restricted legislative power when reconstructed.’

Sadly, of course, this kind of bitter resistance was the norm until The Rev. Dr. Martin Luther King Jr. led the civil rights movement to victory in the 1960s, but Bingham did his best to prevent that outcome.”

Harper’s Weekly 1868 sketch of John Bingham and Thaddeus Stevens before the Senate addressing the vote on President Andrew Johnson’s impeachment by the House of Representatives

Bingham served in Congress until 1873, and then was appointed by President Grant as the American ambassador to Japan, serving for 12 years before retiring to Ohio. He died in 1900, with few today but legal scholars aware of his name and the significance of his achievements.

Tom Donnelly, a Senior Fellow For Constitutional Studies at the National Constitution Center, lamented in a tribute to Bingham on the 150th anniversary of the 14th Amendment:

Professor Akhil Amar once observed, ‘Many of us are guilty of a kind of curiously selective ancestor worship—one that gives too much credit to James Madison and not enough to John Bingham.’  Even as Madison is often labeled the ‘Father of the Constitution’ and recognized as the primary author of the Bill of Rights, most Americans ignore the Second Founder who most worked to realize the universal promise of Madison’s Bill and Jefferson’s Declaration.  With the Fourteenth Amendment set to turn 150, the time has come to change that.”

You can read more about Bingham in a number of sources, including, to name just a few:

The Continuing Importance of Congressman John A. Bingham and the Fourteenth Amendment” by Richard L. Aynes, (the product of a national symposium titled “John Bingham and the Meaning of the Fourteenth Amendment,” held at The University of Akron School of Law on October 17-18, 2002).

“The Father of the 14th Amendment” by Gerard N. Magliocca in The New York Times

Introduction to the Report of the Joint Committee on Reconstruction, signed by eleven members (including both Bingham and Howard) of the Committee, justifying the necessity of amending the Constitution in order to better protect the rights of all.

November 8, 1772 – Birthdate of William Wirt, Influential U.S. Attorney General

William Wirt was born on this day in history in Bladensburg, Maryland. He later moved to Virginia and was admitted to the Virginia bar in 1792.

In 1807, President Thomas Jefferson asked him to be the prosecutor in Aaron Burr’s trial for treason. His principal speech was four hours in length, and garnered him a great deal of praise.

In 1816 he was appointed U.S. Attorney for the Eastern District of Virginia, and in 1817 President James Monroe named him the ninth Attorney General of the United States, a position he held for 12 years, through the administration of John Quincy Adams, until 1829. He has the record for the longest tenure in history of any U.S. attorney general.

William Wirt, 9th United States Attorney General in office November 13, 1817 – March 4, 1829

William Wirt, 9th United States Attorney General in office
November 13, 1817 – March 4, 1829

In March 1831, Wirt appeared before the Supreme Court on behalf of the Cherokee Nation, in the case known as Cherokee Nation v. Georgia (30 U.S. 1). The state of Georgia had been doing everything it could to get the Cherokees to leave, short of causing them to die (that would come later in the decade). The Cherokees wanted to plead their cause with the Supreme Court, but needed to come up with a way to get there, since no one thought Georgians would allow a test case through the state courts. Wirt came up with the idea of claiming that the Cherokees were a foreign nation, which would qualify for the Court’s original jurisdiction.

In a brief Wirt filed with the Court, he argued that Georgia’s laws regarding the Cherokees were “repugnant to the constitution, laws, and treaties of the United States.” “This ancient people,” he contended – “a nation far more ancient than ourselves . . . present themselves to you as a separate, sovereign state. They complain that a state of this union has invaded their rights of person and of property, by a species of legislative warfare, in violation of the treaties, the constitution, and the laws of the United States.”

While Justice John Marshall openly expressed sympathy for the Cherokee’s plight, he ruled against them, refuting the idea that the Cherokees constituted a foreign nation. But Wirt went back to Marshall in 1832 to argue Worcester v. Georgia (31 U.S. 515), also a case questioning the constitutionality of the laws of Georgia, but with a much more acceptable underlying premise. This time Wirt won his case, but the Cherokees lost the war, when both Georgia and the United States refused to support the decision.

Wirt went on to run for President in 1832, a nominee of the Anti-Masonic party. In the subsequent election, Wirt carried Vermont with seven electoral votes, becoming the first candidate of an organized third party to carry a state.

Wirt practiced law until his death in 1834.

October 11, 1991 – Anita Hill’s Statement to the Senate Judiciary Committee About Clarence Thomas

In 1991, Thurgood Marshall, named to the Supreme Court by President Lyndon Johnson, and the first African-American to be appointed to the Court, decided to retire. Republican President George Bush saw Justice Marshall’s retirement as an opportunity to appoint a more conservative judge to the Supreme Court. He selected Clarence Thomas, a forty-three year old conservative African-American from Pinpoint, Georgia. Although black, Thomas was sufficiently conservative to insure a more right-leaning make-up to the Court.

The nomination of Clarence Thomas was instantly controversial. Many African-American groups, Civil Rights organizations, and groups supporting women’s rights opposed the Thomas nomination, fearing Thomas’s conservativism would lead to a reversal of the gains blacks had seen during Marshall’s tenure. Even the legal community voiced apprehension about Thomas’s clear lack of judicial experience.

Then-U.S. Supreme Court nominee Clarence Thomas during confirmation hearings before the Senate Judiciary Committee in Washington, Sept. 10, 1991. PHOTO: J. DAVID AKE/AFP/GETTY IMAGES

Then-U.S. Supreme Court nominee Clarence Thomas during confirmation hearings before the Senate Judiciary Committee in Washington, Sept. 10, 1991.
PHOTO: J. DAVID AKE/AFP/GETTY IMAGES

Nevertheless, the Thomas nomination proceeded to the Senate Judiciary Committee for confirmation hearings. The hearings took a dramatic turn when Anita Hill, a law professor at the University of Oklahoma, came forward with accusations that Clarence Thomas had sexually harassed her. Hill had worked for Thomas years earlier when he was head of the Equal Employment Opportunity Commission (EEOC). For three days, millions of Americans watched the hearings that were broadcasted on live TV.

University of Oklahoma law professor Anita Hill testifies before the Senate Judiciary Committee on Capitol Hill in 1991. AP

University of Oklahoma law professor Anita Hill testifies before the Senate Judiciary Committee on Capitol Hill in 1991. AP

Thomas denied the allegations, calling the hearings “a high-tech lynching for uppity Blacks.” It became a he-said-she-said issue, and in the end, the Senate voted 52-48 to confirm Clarence Thomas as associate justice of the Supreme Court.

But Anita Hill’s testimony is considered to be one of the “Top 100 American speeches of the 20th century.” She said in part:

It is only after a great deal of agonizing consideration that I am able to talk of these unpleasant matters to anyone except my closest friends. As I’ve said before these last few days have been very trying and very hard for me, and it hasn’t just been the last few days this week. It has actually been over a month now that I have been under the strain of this issue.

Telling the world is the most difficult experience of my life, but it is very close to having to live through the experience that occasion this meeting. I may have used poor judgment early on in my relationship with this issue. I was aware, however, that telling at any point in my career could adversely affect my future career. And I did not want early on to burn all the bridges to the EEOC.

As I said, I may have used poor judgment. Perhaps I should have taken angry or even militant steps, both when I was in the agency, or after I left it. But I must confess to the world that the course that I took seemed the better as well as the easier approach.

I declined any comment to newspapers, but later when Senate staff asked me about these matters I felt I had a duty to report. I have no personal vendetta against Clarence Thomas. I seek only to provide the committee with information which it may regard as relevant.

It would have been more comfortable to remain silent. It took no initiative to inform anyone — I took no initiative to inform anyone. But when I was asked by a representative of this committee to report my experience, I felt that I had to tell the truth. I could not keep silent.”

You can read the full text of her remarks here.

As The Huffington Post reports:

Hill’s impact was tangible. Her testimony set off a greater national understanding of what sexual harassment looks like in the workplace, pushing employers to institute trainings on the subject. In 1991, the Equal Employment Opportunity Commission (EEOC, where Hill had worked under Thomas) reported 3,349 charges filed alleging sexual harassment. In 1992, that number shot up to 5,607.”

September 24, 1755 – Birth of John Marshall, Fourth Chief Justice of U.S. Supreme Court

John Marshall was born in a rural community on the Virginia frontier, in what is now Fauquier County, on September 24, 1755.

His parents decided John was to be a lawyer, and John’s father bought him a copy of William Blackstone’s Commentaries on the Laws of England for John to read and study. After serving in the Continental Army during the American Revolution, Marshall read law under the famous Chancellor of the College of William and Mary, George Wythe; was elected to Phi Beta Kappa; and was admitted to the Bar in 1780. He was in private practice in Fauquier County before entering politics.

In 1788, Marshall was selected as a delegate to the Virginia convention responsible for ratifying or rejecting the United States Constitution, which had been proposed by the Philadelphia Convention a year earlier. Together with his fellow Virginians James Madison and Edmund Randolph, Marshall led the fight for ratification. He was especially active in defense of Article III, which provides for the Federal judiciary. Marshall identified with the new Federalist Party (which supported a strong national government and commercial interests), and opposed Jefferson’s Republican Party (which advocated states’ rights and idealized the yeoman farmer and the French Revolution).

John Marshall painting from 1797

In 1798, Marshall declined a Supreme Court appointment by President John Adams, recommending Bushrod Washington, who would later become one of Marshall’s staunchest allies on the Court. Instead, Adams named Marshall as Secretary of State.

Adams and the Federalists were defeated in the presidential election of 1800, but the President and the lame duck Congress passed what came to be known as the Midnight Judges Act, which made sweeping changes to the federal judiciary, including a reduction in the number of Justices from six to five (upon the next vacancy in the court) so as to deny Jefferson an appointment until two vacancies occurred. In addition, since the incumbent Chief Justice Oliver Ellsworth was in poor health, Adams nominated Marshall. Marshall was confirmed by the Senate on January 27, 1801, and received his commission on January 31, 1801. President John Adams offered this appraisal of Marshall’s impact: “My gift of John Marshall to the people of the United States was the proudest act of my life.”

Marshall served as Chief Justice during the administrations of six Presidents: John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams and Andrew Jackson. He helped to establish the Supreme Court as the final authority on the meaning of the Constitution in cases and controversies that must be decided by the federal courts. According to the Oyez Project, Marshall’s impact on constitutional law is without peer, and his imprint on the Court’s jurisprudence remains indelible.

In the excellent book John Marshall: The Chief Justice Who Saved The Union by Harlow Giles Unger, Unger takes the interesting approach of illuminating the contributions of John Marshall to the protection and preservation of the Constitution by describing the many ways in which Thomas Jefferson sought to subvert it. This book will educate readers about the actual operations of the early republic, rather than the usual “patriotic” myths fed to students of history. Although revered as a “Founding Father,” Jefferson was in truth often interested more in advancing his own ideas and ambition than in honoring the Constitution.

cover_john_marshall

Marshall’s legacy as the 4th Chief Justice of the Supreme Court was the assurance of “the integrity and eminence of the Constitution and the federal government.” Marshall, who was the longest serving Chief Justice in American history, signed over 1,180 decisions, writing 549 of them. As Unger shows:

In the course of his Supreme Court leadership Marshall stood at the center of the most riveting – and most important – courtroom dramas in the nation’s formative years. Case by case he defined, asserted, and when necessary, invented the authority he and the Court needed to render justice, stabilize the federal government, and preserve the Union and its Constitution.”

Because of Marshall’s efforts, the judiciary became an equal branch of the federal government. But it was not a predetermined outcome. When Jefferson didn’t get his way, he used every means at his disposal to try to vitiate the judiciary. To his chagrin, however, even when he appointed his own men to the bench, they became so impressed with Marshall’s erudition, devotion to the law, and integrity, that one by one, they became Marshall men instead of Jefferson men.

John marshall painting 1828

To this day, the decisions written or influenced by Marshall continue to shape the American polity. From his opinion in Marbury v. Madison, in which he established the independence of the federal judiciary, to his insistence in U.S. v. Burr that no one, not even the president, is above the law, Marshall made a lasting and positive imprint on the character of the country. And while Jefferson continued to insist, even when retired, that the federal and state governments represented two independent and equal sovereigns, Marshall, in McCulloch v. Maryland, set forth the precedent that state action may not impede valid constitutional exercises of power by the Federal government. The United States would be a radically different place had it not been for “the great,the good, the wise” John Marshall, as he was described by another famous and well-respected Supreme Court Justice, Joseph Story.

Daguerreotype of Supreme Court justice Joseph Story, 1844

Discussion: One reason I like Unger very much as a historian is that he has always been able to avoid portraying the Founding Fathers in sepia tones with golden halos. He is not loathe to point out, for example, that Jefferson was a vicious man who operated sub rosa through lackeys to destroy the careers and lives of anyone and everyone who disagreed with him. He is not reluctant to provide evidence for how much of the Declaration of Independence was lifted by Jefferson from other writings, such as those of John Locke, or how pusillanimously Jefferson behaved when the fighting broke out in the American Revolution. He also takes Jefferson to task for his treasonous acts against President John Adams when Jefferson himself was serving as Vice President. (This includes the concealment of evidence by Jefferson that would exonerate Adams from charges of impeachment, a movement for which Jefferson was leading the chorus.) And he doesn’t hesitate to speak of Jefferson’s bribes to members of the press to calumniate his opponents; his threats to start a Civil War if he were not elected in 1800; his blatant disdain of the Constitution when it got in the way of what he wanted to do; and his attempts to emasculate the judiciary so that it could not rule against any of his decisions.

Thomas Jefferson by Rembrandt Peale

Thomas Jefferson by Rembrandt Peale

Jefferson largely escapes such a close look at his behavior because of the need for the American narrative to show him as a great man, who joined other great men to create a great nation. Even the recent DNA evidence of Jefferson’s long-time affair with Sally Hemings has been downplayed, and those who acknowledge it are quick to point out Jefferson’s long-standing relationship with her, as if his alleged monogamy would make up for his taking up with a fifteen-year old girl when he was forty-six, a girl who was in his care as a slave, unable not to do his bidding. The entire time she was his mistress, she continued to serve as his slave, in addition to being pregnant almost continuously when he was in town. She was not even freed by his will when he died. But collective memory serves to establish moral, political, and social lessons, and to help form an understanding of who we are as a people. Truth can often fall by the wayside.

Unger, however, has a respect for facts.

He also has a keen eye for those early figures in our history who displayed more character, more nuance, more courage, and more loyalty to the aims of the young country. One of those was John Marshall. This well-written story will keep your attention from beginning to end. Highly recommended!

Rating: 5/5

Published by Da Capo Press, a member of the Perseus Books Group, 2014

John Marshall by Henry Inman, 1832

September 22, 1915 – Birthdate of Civil Rights Attorney Charles Lund Black, Jr.

Charles Lund Black, Jr. was born on Sept. 22, 1915, in racist Austin, Texas, one of three children of a prominent lawyer. In 1931, as a 16-year-old freshman studying Greek classics at the University of Texas at Austin, he happened to hear Louis Armstrong play. He later wrote in the Yale Law Journal:

He was the first genius I had ever seen. … It is impossible to overstate the significance of a sixteen-year-old southern boy’s seeing genius, for the first time, in a black. We literally never saw a black then in any but a servant’s capacity. It was just then that I started toward the Brown case where I belonged.”

Armstrong himself, according to jazz critic Nat Hentoff, wrote in a September, 1941 letter:

I’d like to recall one of my most inspiring moments. I was playing a concert date in a Miami auditorium. I walked on stage and there I saw something I’d never seen. I saw thousands of people, colored and white, on the main floor. Not segregated in one row of whites and another row of Negroes. Just all together – naturally. I thought I was in the wrong state. When you see things like that, you know you’re going forward.”

Louis Armstrong in 1934

Louis Armstrong in 1934

In 1954, Black, then a white professor of constitutional law, helped Thurgood Marshall of the NAACP Legal Defense and Educational Fund Inc. to write the legal brief for Linda Brown, a 10-year-old student in Topeka, Kansas, whose historic case, Brown v. Board of Education (347 U.S. 483), decided May 17, 1954, became the Supreme Court’s definitive judgment on segregation in American education.

Professor Charles Black

Professor Charles Black

Professor Black taught generations of law students, first at Columbia from 1947 to 1956, then at Yale for 30 years, and then at Columbia from 1986 until his health began to fail prior to his death in 2001. Black was the first Henry R. Luce Professor of Jurisprudence at Yale, and in 1975 he became the Sterling Professor of Law, the highest academic rank at Yale. He also wrote more than 20 books and many articles on constitutional law, admiralty law, capital punishment, the role of the judiciary and other legal subjects, including Impeachment: A Handbook, that was widely praised in 1974, when President Richard M. Nixon resigned in the Watergate scandal, and also when reissued during the 1999 proceedings against President Bill Clinton. His last book, A New Birth of Freedom (1997), re-examined the Declaration of Independence and the Ninth and 14th Amendments to the Constitution as a basis for unwritten human rights.

[Sources for this post came from Columbia University, The New York Times (5/08/01), and The Wall Street Journal (1/15/09).] You can read more about Black’s recollections of Louis Armstrong here. He said in this article:

All men, to be sure, are kin, but Southern whites and Negroes are bound in a special bond. In a peculiar way, they are the same kind of people. They are happy alike, they are poor alike. Their strife is fratricidal, born of ignorance. And the tragedy itself has, of course, deepened the kinship; indeed, it created it.

My dream is simply that sight will one day clear and that each of the participants will recognize the other.”

Review of “The Case for Loving: The Fight for Interracial Marriage” by Selina Alko

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As the Author explains in an Afterword to this book, she is white and her husband, fellow illustrator Sean Qualls, is African-American. They fell in love and were married in 2003. Alko writes:

“I must admit, it’s difficult to imagine that just decades ago couples just like us not only faced discrimination, but were told by their governments that their love was unlawful.”

But it was only in 1967 that the U.S. Supreme Court declared that anti-mixed marriage statutes were unconstitutional, in the landmark civil rights case Loving v. Virginia. Chief Justice Earl Warren, writing for the Court, declared that statutes preventing marriage solely on the basis of racial classification violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

At the time of this decision, Virginia was one of sixteen states prohibiting and punishing marriages on the basis of racial classification. According to one Virginia statute, a “white person” was absolutely prohibited from marrying anyone other than another “white person.” The license-issuing official had to be satisfied that applicants’ statements as to their race were correct, and certificates of “racial composition” had to be kept by both state and local registrars.

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This book tells the story of two Virginia residents, Mildred Jeter, part African-American and part Cherokee, and Richard Loving, a fair-skinned white boy. The two fell in love, but had to travel to Washington, D.C. to get married legally, which they did in 1958. Shortly thereafter, they returned to Virginia and took up residence.

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They’d been married just a few weeks when, in the middle of the night in July, 1958, the county sheriff and two deputies, acting on an anonymous tip that the Lovings were in violation of the law, stormed into the couple’s bedroom. They informed the Lovings that their marriage license was no good in Virginia, and hauled Richard and the pregnant Mildred off to jail.

The couple eventually pleaded guilty to violating the Virginia law, which recognized citizens as “pure white” only if they could claim white lineage all the way back to 1684. The presiding judge ruled:

“Almighty God created the races white, white, black, yellow, malay and red, and he placed them on separate continents.” And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

The Lovings were convicted and sentenced to one year in jail; however, the trial judge suspended the sentence for 25 years on the condition that the Lovings leave Virginia. They moved to D.C., but missed their friends and family and the Virginia countryside. In 1964, frustrated by their inability to travel together to visit their families in Virginia, Mildred Loving wrote in protest to Attorney General Robert F. Kennedy. Kennedy referred the matter to the American Civil Liberties Union.

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The ACLU filed a motion on the Lovings’ behalf to vacate the judgment and set aside the sentence on the ground that the statute, the “Racial Integrity Act of 1924,” violated the Fourteenth Amendment. The Lovings also filed a class action in federal court to have the Virginia statutory scheme declared unconstitutional. This began a series of procedures and appeals that ultimately reached the Supreme Court.

Mildred and Richard Loving with their three children on the front porch of their Virginia home in the late 1960’s.

Mildred and Richard Loving with their three children on the front porch of their Virginia home in the late 1960’s.

Mildred and Richard Loving went on to have three children: Donald, Peggy and Sidney Loving. In the book, the authors aver that the Loving family, back in Virginia, lived “happily (and legally!) ever after.” But the truth is more tragic. Richard Loving died at age 41 in 1975, when a drunken driver struck their car. Mildred Loving lost her right eye in the same accident.

Mildred Loving died of pneumonia in 2008, in Milford, Virginia, at age 68. Her daughter Peggy Fortune said “I want [people] to remember her as being strong and brave yet humble — and believ[ing] in love.”

Mildred and Richard Loving in 1967

Mildred and Richard Loving in 1967

This book is a testament to that love, and also to the love between the Selina Alko and Sean Qualls. For the art work, they collaborated, using paint and collage in bold and beautiful colors. This is their first book together, but you can see in this book the influence of their previous (separate) books about mixed race relationships, such as Who Will I Be, Lord? by Vaunda Micheaux Nelson, Sean Qualls, Illustrator, and I’m Your Peanut Butter Big Brother by Selina Alko (both author and illustrator).

Evaluation: This story is told truthfully, but with the focus on the positive aspects of love, family, and the conviction that “Brand-new ideas, like equal rights for people of all colors, were replacing old, fearful ways of thinking.” One can only hope that faith continues to be justified.

Rating: 4.5/5

Published by Arthur A. Levine Books, an imprint of Scholastic Inc., 2015