Friday, October 24, 2008

In Which My English Teacher Has Cardiac Arrest

In early March 1788, James Madison, having finished his last contribution to the Federalist Papers, left New York City for Montpelier in order to canvass for election to the Virginia Convention that was to meet to consider whether to ratify the proposed federal constitution. When Madison arrived in Virginia, however, he stopped over at Mount Vernon, and wound up tarrying there for several weeks.

Then, as Robert Allen Rutland tells it, Madison received "a letter from an Orange County friend urging him to hurry home" because an opponent was attacking the Constitution with some success. Madison's correspondent, Joseph Spencer, told him that the attacks were
in such Horred carrecters that the weker clas of people are much predegessed agains it by which meens he has many which as yet, appears grately in favour of him.

My old English teacher would be appalled. Poor Mr. Spencer can't even spell "favor" correctly.

Thursday, October 23, 2008

I Weep for My Country

. . . that the presidential candidate of a major political party is not repulsed by the thought of associating with a man who would contemplate such horrors.

More here.

Guess the President

Extra credit if you identify the writer (pictured above):
The next day after my arrival I visited the President, accompanied by some Democratic members. In a few moments after our arrival, a tall, high-boned man came into the room. He was dressed, or rather undressed, in an old brown coat, red waistcoat, old corduroy small clothes much soiled, woollen hose, and slippers without heels. I thought him a servant, when General Varnum surprised me by announcing that it was the President.

Sunday, October 19, 2008

Consequential Non-Election Presidential Successions

The American Presidents Blog posted recently about consequential presidential elections. Which got me thinking: what about consequential presidential successions that were not the result of elections – i.e., due to the death or resignation of the incumbent.

The candidates are:

William Henry Harrison – John Tyler
Zachary Taylor – Millard B. Fillmore
Abraham Lincoln – Andrew Johnson
James A. Garfield – Chester A. Arthur
William McKinley – Theodore Roosevelt
Warren G. Harding – Calvin Coolidge
Franklin D. Roosevelt – Harry S. Truman
John F. Kennedy – Lyndon B. Johnson
Richard M. Nixon – Gerald Ford

What’s amazing is how consequential so many of these successions were. You wouldn’t think that would be the case. After all, the incoming president is a member of the same party as, and often picked by, his successor.

But consider:

Harrison/Tyler – It is inconceivable to me that Harrison would have stirred up the Texas hornet nest as Tyler did. Texas would not have been admitted in 1845. No James K. Polk? No Mexican War? No Wilmot Proviso? Etc. etc. etc.

Taylor/Fillmore – As I have discussed on a number of occasions, but for Taylor’s death and Fillmore’s accession there is significant doubt whether the Compromise of 1850 would have passed. War breaks out between the United States and Texas in 1850 or 1851? Leading to a broader war in which slave states line up with Texas?

Lincoln/Johnson – Would a Radical Republican Congress have composed the Fourteenth and Fifteenth Amendments if Lincoln had lived? What form would Reconstruction have taken?

Kennedy/Johnson – I tend to think that Kennedy would have gotten drawn into Vietnam as Johnson did. But even so, it is hard to conceive the Great Society under Kennedy.

Other speculations are welcome!

Thomas Jefferson Enforces the Embargo 1: Congress Authorizes the Use of the Army and Navy to Suppress Insurrection

In Jefferson and Civil Liberties: The Darker Side, Leonard W. Levy presents a damning portrait Thomas Jefferson’s conduct in connection with his attempts to enforce the 15-month embargo from December 1807 to March 1809:
[B]y late summer of 1808, the regular army, the previously dreaded “standing army in time of peace,” was regularly employed in the enforcement of the embargo laws in the Northeastern United States. By the same time, naval gunboats and revenue cutters patrolled the inland waterways and coasts of the nation.

On a prolonged, widespread, and systematic basis, in some places lasting nearly a year, the armed forces harried and beleaguered the citizenry. Never before or since did American history exhibit such a spectacle of derangement of normal values and perspectives. . . . Under Jefferson, from the summer of 1808 until the time he left office, in March of 1809, “insurrections” were continuous throughout an entire section of the nation and the armed forces were employed on a sustained basis, as if it were normal for American soldiers and sailors to enforce against American citizens their own laws.

I thought I’d take a few posts to examine the seamy underbelly ignored in most treatments of the Divine Jefferson.

The first plank of the legal structure that Jefferson would use to oppress the country was laid in early 1807. Despite the excuses that the Whiskey Rebellion and Fries’s Rebellion might have provided, the Federalists had never passed a law authorizing the regular army or navy to suppress domestic violence or rebellion.

Not so Jefferson and his followers. On March 3, 1807, in the wake of the alleged Aaron Burr conspiracy, the Jeffersonian Congress passed An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections:
Be it enacted, &c., That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual State or Territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.

The requirement of the last clause that the president “first observe[] all the pre-requisites of the law” imposed no effective check on a determined executive. The “law” referred to, Section 2 of the Militia Act of 1795, gave the president absolute discretion over whether to call out the militia against domestic rebellion:
SEC. 2. And be it further enacted, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States, to call forth the militia of such state, or any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress.

President Thomas Jefferson now had the power to call out the army and the navy to suppress domestic "combinations" that he deemed "too powerful to be suppressed by the ordinary course of judicial proceedings."

Thomas Jefferson on Climate Change

A change in our climate, however, is taking place very sensibly. Both heats and colds are become much more moderate within the memory even of the middle-aged. Snows are less frequent and less deep. They do not often lie below the mountains more than one, two or three days, and very rarely a week. They are remembered to have been formerly frequent, deep, and of long continuance. The elderly inform me the earth used to be covered with snow about three months in every year. The rivers, which then seldom failed to freeze over in the course of the Winter, scarcely ever do so now. This change has produced an unfortunate fluctuation between heat and cold, in the Spring of the year, which is very fatal to fruits. From the year 1741 to 1769, an interval of twenty-eight years, there was no instance of fruit killed by the frost in the neighborhood of Monticello. An intense cold, produced by constant snows, kept the buds locked up till the sun could obtain, in the Spring of the year, so fixed an ascendancy as to dissolve those snows, and protect the buds, during their development, from every danger of returning cold. The accumulated snows of the Winter remaining to be dissolved all together in the Spring, produced those overflowings of our rivers, so frequent then, and so rare now.

Thomas Jefferson, Earth in the Balance Notes on the State of Virginia, Query VII, Climate.

Thanks to Edward John Craig at National Review's Planet Gore blog for the lead.

The picture, by the way, is of a drawing of a pastoral scene from a Vatican manuscript of Vergil's Georgics.

Wednesday, October 15, 2008

The Fugitive Slave Act of 1793 14: "A Claim is to be Made!"

In the last installment, I argued that Justice Story’s analysis in Prigg was complete and the outcome clear by the sixth page of his opinion. Why, then, did he go on for another twelve pages? What else was there left to say?

As you may recall, the right of recaption permitted the master (or his agent) to, in effect, repossess his slave (just as a present day repo man may repossess a car), provided he could do so “without any breach of the peace or any illegal violence.” Breach of the slave’s peace, presumably, did not count. But there might well be situations where third parties might “secrete or conceal, or withhold the slave.” Recaption in such circumstances would require breach of the peace or violence against third parties. What then? The issue was not presented in the case (so far as we can tell), but Justice Story, for whatever reason, decided to explore it anyway.

As a practical matter, there were several choices. First, it was possible that the Clause did not impose any affirmative obligation on either the states or the federal government to establish procedures to assist slaveholders in such cases. Alternatively, procedures might be required, but if so, who was obligated to establish them? The states, the federal government, or both?

Justice Story first addressed, and dismissed, the possibility that no one – neither the states nor the federal government – was obligated to establish remedies for the slaveholder. To begin with, such a result would relegate the Clause to “a delusive and empty annunciation,” implicitly contradicting Justice Story’s earlier premise that the Clause granted slaveholders a positive, unqualified right to possession:
If, therefore, the clause of the constitution had stopped at the mere recognition of the right, without providing or contemplating any means by which it might be established and enforced, in cases where it did not execute itself, it is plain, that it would have been, in a great variety of cases, a delusive and empty annunciation.

With this background, Justice Story then turned to the language of the Clause – “’but he (the slave) shall be delivered up, on claim of the party to whom such service or labor may be due.’” This language, he opined, “implies at once a guarantee and a duty.” It imposed an obligation on someone to enact legislation enforcing the slaveholder’s right:
Now, we think it exceedingly difficult, if not impracticable, to read this language, and not to feel, that it contemplated some further remedial redress than that which might be administered at the hands of the owner himself. A claim is to be made! . . . The slave is to be delivered up on the claim. . . . [These actions] require the aid of legislation, to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave.

Tuesday, October 14, 2008

Sunset Over New Jersey

Just a reminder that New Jersey is not all oil refineries and toxic waste sites . . ..

The Fugitive Slave Act of 1793 13: The Myth Takes A Bite

Our last episode was a while ago, so you may want to start by reviewing earlier posts on Prigg. To make a long story short, when we last visited Justice Joseph Story, he had bought, hook, line and sinker, the myth that southern states would not have joined the Union without a fugitive slave clause that assured them “the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape.”

Justice Story’s conclusions as to what the Fugitive Slave Clause meant all flowed from this premise. Justice Story himself made crystal clear that his interpretation of the Clause represented an attempt to “effectuate” the Clause’s “objects” and “manifest purpose” as he understood them:
How, then, are we to interpret the language of the clause? The true answer is, in such a manner as, consistently with the words, shall fully and completely effectuate the whole objects of it. If, by one mode of interpretation, the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and by another mode, it will attain its just end and secure its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail. No court of justice can be authorized so to construe any clause of the constitution to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them.

What were the clause’s “obvious ends”? Justice Story circled back to restate them in the broadest possible form – a form that dictated the outcome (emphasis added):
The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control or restrain. The slave is not to be discharged from service or labor, in consequence of any state law or regulation. Now, certainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said, that any state law or state regulation, which interrupts, limits, delays or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service and labor, operates, pro tanto, a discharge of the slave therefrom. The question can never be, how much is the slave discharged from; but whether he is discharged from any, by the natural or necessary operation of state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive and absolute right.

Having established that the slaveholder’s right was absolute and immediate, and that the slaveholder had the same right to recover his slave in another state as he had in his own, Justice Story then zeroed in more precisely on what this meant. In his own state, the master had the right of “recaption”, that is, the right to seize and recapture his slave without involving law enforcement or judicial officers, provided it could be accomplished without a breach of the peace:
[T]he clause puts the right to the service or labor upon the same ground, and to the same extent, in every other state as in the state from which the slave escaped, and in which he was held to the service or labor. If this be so, then all the incidents to that right attach also. The owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own state confer upon him, as property; and we all known that right of seizure and recaption is universally acknowledged in all the slave-holding states. . . .

It followed, Justice Story held, that the Constitution conveyed on masters the same right of recaption in free states:
Upon this ground, we have not the slightest hesitation in holding, that under and in virtue of the constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave, whenever he can do it, without any breach of the peace or any illegal violence. In this sense, and to this extent, this clause of the constitution may properly be said to execute itself, and to require no aid from legislation, state or national.

We are only six pages into Justice Story’s 19-page opinion. Although he has (as we shall see in future installments) a good deal more to say, it is important to recognize that, at this point, the game is over as a practical matter. Prigg and his assistants had the right to enter Pennsylvania and seize and repossess Margaret Moran and her children without interference. Pennsylvania was barred from enacting or enforcing any law that “interrupts, limits, delays or postpones” this right. Pennsylvania indicted and convicted Prigg for violating such a law. It is not hard to figure out where this is going.

Monday, October 13, 2008

Legal Reasoning

This article, entitled "Everything I Needed to Learn About Legisprudence I Learned by the Time I Was Nine," is the best illustration of legal reasoning that I've ever read. It's also the most hilarious. The article is only five pages (plus two lines) long. Whether you're a lawyer, an aspiring lawyer, or a hater of lawyers (or all three), by all means take a few minutes. Here's the abstract:
Based on a true story, this piece starts with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges--father, babysitter, grandma (a liberal jurist, of course), etc.--who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

The piece is meant to demonstrate the following:

* We all regularly use the basic tools and modes of statutory interpretation;
* When we interpret pronouncements in real life, we resort to a mix of textualist, literalist, purposivist, legal process, precedent, and other techniques and sources;
* Although the various tools seem perfectly reasonable individually, in the aggregate, they can lead to ridiculous results;
* Even when we agree that the ultimate results are ridiculous, it is sometimes hard to pinpoint exactly where the error occurred;
* The legislature can sometimes clean up after bad judicial opinions, but it often takes a long time.

Thanks to Orin Kerr at Volokh for pointing it out.

Saturday, October 11, 2008

Dumas Malone Says, "Ouch!"

It's not often you find the following sentence at the beginning of the preface to a book:
The reappearance of this book will doubtless disappoint some critics who would prefer to see it evaporate into oblivion like a feculent odor.

It's also not often that you find an author, responding to a draft review of his book, addressing the following comment to none other than Dumas Malone:
The review poorly reports the contents of the book and makes little effort to summarize any of the evidence relating to any of the subjects discussed.

Leonard W. Levy, Jefferson and Civil Liberties: The Darker Side, Preface to the Paperback Edition.

Wednesday, October 08, 2008

Charlottesville, VA Bleg

The weekend before Thanksgiving -- late November and potentially cold, I assume -- I am driving down to North Carolina with my wife, mother-in-law and a college friend. I have selected Charlottesville, VA to stop off at for a couple of nights, primarily because I have never visited Monticello or Montpelier. What else should we see in the area? Bear in mind that my mother-in-law is 80+ years of age, so we're not going hiking!

Sean N., is that where you are? I would be delighted to get together.


The textbooks I read always referred to impressment – the British practice of stopping and boarding American ships and impressing members of the crew into service in the British navy – as a principal irritant in Anglo-American relations in the early 19th Century and a primary cause of the War of 1812. At the same time, the typical discussion of impressments was utterly opaque. Why did the British do it? What was their justification? Could they possibly have had a reasonable excuse? No one was saying.

It turns out that there are answers to these questions – and there were, indeed, two sides to the story, as Gary Wills relates in his excellent brief biography of James Madison. First, British need for seaman was great. The Napoleonic wars were stretching the British to the limit. The British were building ships as fast as they could. In the seven years from 1805 to 1812, the British navy had almost trebled in size, to 191 ships of the line, 245 frigates or equivalent, and several hundred other ships of war. All had to be manned, and it was generally understood that it took three years to train a seaman. For these reasons, in the midst of what the British, rightly or wrongly, considered a life-and-death struggle, “’[n]o British ministry that gave up the power of impressment could last a day.’” (Wills, quoting Ralph Ketcham)

Under the circumstances, Britain quite naturally took offence, and action, when it perceived that another country was harboring and employing large numbers of seamen who had deserted British ships. And that is exactly what was happening. Moreover, US authorities at the highest level were well aware of this provocation to British interests – and intentionally chose to do nothing about it.

The numbers are truly staggering. In 1807, Albert Gallatin, then President Jefferson’s Secretary of the Treasury, conducted a survey of the US overseas commercial trade. According to Wills, Gallatin “found that roughly nine thousand British seamen were engaged in it – over a third of the overseas crews working under the American flag.” I haven’t been able to find Gallatin’s report online, but I did find a letter that he sent to President Jefferson on April 16, 1807, in which he characterized his findings as follows:
Our tonnage employed in foreign trade has increased since 1803 at the rate of about 70,000 tons a year, equal to an increase of 8400 sailors for two years, and I would estimate that the British sailors have supplied from one-half to two-thirds of that increase; for the natural increase of our native sailors has been in a great degree absorbed by the increase of whale-fisheries and impressments.

In other words, Gallatin was estimating that 8,400 to 11,256 British sailors had become employed in American “foreign trade” between 1803 and 1807.

President Thomas Jefferson apparently first learned of these findings on April 20, 1807, when he received a letter dated April 13 from his Secretary of State, James Madison, which enclosed Gallatin’s report.

Jefferson responded to Madison by letter dated April 21, 1807. In his response, Jefferson made clear that the numbers appeared so large that the government should make no efforts to stop the employment of foreign seaman on American vessels, and should stonewall any British attempts to negotiate concerning the subject (emphasis added):

Yours of the 13th came to hand only yesterday, and I now return you . . . Mr. Gallatin's paper on foreign seamen. . . . Mr. Gallatin's estimate of the number of foreign seamen in our employ renders it prudent, I think, to suspend all propositions respecting our non-employment of them. As, on a consultation when we were all together, we had made up our minds on every article of the British treaty, and this of not employing their seamen was only mentioned for further inquiry and consideration, we had better let the negotiations go on, on the ground then agreed on, and take time to consider this supplementary proposition. Such an addition as this to a treaty already so bad would fill up the measure of public condemnation. It would indeed be making bad worse. I am more and more convinced that our best course is, to let the negotiation take a friendly nap, and endeavor in the meantime to practice on such of its principles as are mutually acceptable. Perhaps we may hereafter barter the stipulation not to employ their seamen for some equivalent to our flag, by way of convention; or perhaps the general treaty of peace may do better for us, if we shall not, in the meantime, have done worse for ourselves. At any rate, it will not be the worse for lying three weeks longer.

I salute you with sincere affection.

P. S. Will you be so good as to have me furnished with a copy of Mr. Gallatin's estimate of the number of foreign seamen? I think he overrates the number of officers greatly.

Similarly, in a letter to Gallatin also dated April 21, 1807, Jefferson explained, “Your estimate of the number of foreign seamen in our employ, renders it prudent, in my opinion, to drop the idea of any proposition not to employ them.”

This is not to say that British abuses did not take place. During their searches of American vessels, the British seized some American citizens whose accents suggested they were recent immigrants. But the fact remains that American shippers were knowingly employing thousands of escaped British seamen. Clearly, they preferred to employ deserters, and suffer occasional boardings and impressments by the British, to foregoing their employment in the first place. The US government, likewise, concluded that US trade was so dependent on the employment of British deserters that stopping the practice would cause more harm than good.

Sunday, October 05, 2008

Jefferson on the Nature of the Vice Presidency

Joe Biden's recent bizarre comments on the nature of the Vice Presidency bring the following to mind.

On January 22, 1797, Thomas Jefferson, at Monticello, wrote a letter to his friend and political ally and confidante James Madison that discussed the nature of the office of Vice President, which Jefferson was about to assume. I have added paragraph breaks and emphasis:


Yours of the 8th came to hand yesterday. I was not aware of any necessity of going on to Philadelphia immediately, yet I had determined to do it, as a mark of respect to the public, and to do away the doubts which have spread, that I should consider the second office as beneath my acceptance. The journey, indeed, for the month of February, is a tremendous undertaking for me, who have not been seven miles from home since my re-settlement. I will see you about the rising of Congress; and presume I need not stay there a week. Your letters written before the 7th of February will still find me here.

My letters inform me that Mr. Adams speaks of me with great friendship, and with satisfaction in the prospect of administering the government in concurrence with me. I am glad of the first information, because though I saw that our antient friendship was affected by a little leaven, produced partly by his constitution, partly by the contrivance of others, yet I never felt a diminution of confidence in his integrity, and retained a solid affection for him. His principles of government I knew to be changed, but conscientiously changed.

As to my participating in the administration, if by that he meant the executive cabinet, both duty and inclination will shut that door to me. I cannot have a wish to see the scenes of 1793 revived as to myself, and to descend daily into the arena like a gladiator, to suffer martyrdom in every conflict. As to duty, the constitution will know me only as the member of a legislative body: and its principle is, that of a separation of legislative, executive and judiciary functions, except in cases specified. If this principle be not expressed in direct terms, yet it is clearly the spirit of the constitution, and it ought to be so commented and acted on by every friend to free government.

For an earlier post that touches on the nature of the Vice Presidency, see John Adams's Salary as Vice President.

Saturday, October 04, 2008

Monkeys, Banks Deposits and Civil Rights

Two quick historical items, both courtesy of Boing Boing.

First, some really nice photographs taken during the Scopes Monkey Trial. I didn't realize it was so hot one day that the trial was moved out of the courthouse and held outdoors. The description of the photograph reproduced above states:
William Jennings Bryan (seated at left) being interrogated by Clarence Seward Darrow, during the trial of the State of Tennessee v. John Thomas Scopes, July 20, 1925. That Monday afternoon, because of the extreme heat, Judge Raulston moved court proceedings outdoors. The session was held on a platform that had been erected at the front of the Rhea County Courthouse to accommodate ministers who wanted to preach during the time of the trial. Defense lawyers for Scopes (John R. Neal, Arthur Garfield Hays, and Dudley Field Malone) are visible seated to the extreme right. One of the men at left, with his back to the photographer, appears to be Scopes. The court reporters are seated at the table.

Second, early sound recordings -- early as in 1908 -- of presidential candidates William Jennings Bryan and William Howard Taft. Bryan speaks on "Guaranty of Bank Deposits," and Taft addresses "Rights and Progress of the Negroes." The newfangled medium seems to have intimidated both men a bit, but it's still fascinating to hear these voices from the past. I only wish we'd unearth recordings of Henry Clay and Daniel Webster!

Wednesday, October 01, 2008

Justice Kennedy Says, "Ouch!"

I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at ___ (slip op., at 24). Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

Nino Scalia.
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