Archive for category History

Kagan on Greece

To help keep myself focused, basically by staying tethered to the computer when I’m working, I’ve been listening to podcasts.  First of all, it’s more comfortable than getting up and going outside.  With the humidity running well over 100%, I feel as though I’m being waterboarded much of the time.  Sure, I grew up outside of DC, but I’m acclimated to Denver now.  Really, you want the Gitmo guys to break?  Send ’em here and just have ’em walk around for a few minutes.  They’ll be singing like Maria Callas.

Which podcasts?  There’s a wealth of stuff.  Radio Lab.  This American Life.  The Stanford Business School Entrepreneurship Corner.  The Hoover Institution has a bunch of stuff.  The nice thing is that when miss some of the lecture because I’m concentrating too much on work, I can back the thing up and hear it again.  Try that with an actual professor.

A friend of mine turned me on to the Open Yale Courses, though, and for the last week, I’ve been sitting in the classroom of Donald Kagan’s survey course on ancient Greek civiliation.  Kagan’s a real researcher, has written a great history of the Peloponnesian War.

He’s can also be hugely entertaining.  He understands that teaching stadiums-full of undergraduates a survey course is almost as much showmanship as scholarship.  His description of hoplite warfare is worth the price of admission (although not necessarily the price of tuition, which I guess is why it’s online).  Fortunately, this doesn’t translate into misguded attempts to be “cool.”  Kagan’s disdain for the state of core liberal arts education is, I think, quite real.  I have no idea what his politics are, but he wears his small-c academic conservatism well.

On second thought, I do know, at least a little, what his politics are.  He can’t be a raging leftist because he’s a fan of Victor Davis Hanson’s scholarship.  He credits Hanson, as a farmer, with the key insight into how the Greeks developed oligarchic and then democratic institutions, that being the invention of the family farm.  The connection to the land gave the farmers  a literal stake in the society, and a desire to participate in the polis‘s decision-making.  The steady virtues required to be a farmer also benefitted one who wanted to be a citizen, rather than a subject.  It’s a story that’s also part of America, something we still consider to be true today.

Productive work itself is virtuous.  But it’s nice to be able to combine it with learning something about how the world.

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The Long Recall

I discovered The Long Recall blog over at the American Interest site a couple of months ago, but only now am I getting around to posting on it.  The folks there have decided to do a real-time, day-by-day blog of the Civil War, on its ongoing 150th Anniversary.  It’s a brilliant idea, and so far, they’re pulling off what must be a great deal of unpaid work quite beautifully.

The effort seems to be led by Walter Russell Mead, and I’ll quote from his intro to the blog, but it’s worth reading the whole thing:

We will use a modern form to present the daily news: our Civil War aggregator that combines a short daily summary of the news along with links to articles that a well-informed Civil War-era reader would have wanted to read.  Our goal is to allow readers today to get a feel for what it was like to experience the conflict in real time, to hear the many voices trying to make sense of the conflict, and to sift through sometimes confused and misleading news accounts to try to discern what was actually taking place.

The Long Recall will do its best to help 2010 readers understand the economic dimension of the conflict.  At times this will involve us in something more active than simply linking to Civil War era news sources; we will provide commentary that helps the readers of today understand what yesterday’s news meant to intelligent readers of the day.

In The Long Recall, we will carry foreign news as it became available to American readers, not the day it actually happened.  At times of crisis, as during the Trent Affair late in 1861, this uncertainty about foreign events was a major factor in American politics and policy.  Because the US economy and financial markets were so dependent on London at this time, the uncertainty about foreign developments was also an important factor in the economic news….

Finally, a word on language and ‘political correctness.’  The United States has always been and remains a prudish society with strict limits about the kind of language that is allowed — and about the subjects that may be discussed.  In the Civil War era, Americans were very strict about sexual matters — but when it came to race, they were extremely permissive.   …words that could never be used today in polite discourse were routinely used in those days to describe different racial groups.  Worse, racial humor and stereotypes were deeply embedded in the culture.  Politicians and political writers frequently resorted to anecdotes and humor that would justifiably end careers today to score points with public audiences.

At The Long Recall, we have made the decision to link to Civil War era material without censoring or toning down racial language, images and ideas that modern readers (including, we must say, ourselves) find offensive.  The use of such language and the prevalence of such ideas is too central to American life and culture at the time — and too vitally involved with attitudes toward the Civil War — to be edited away or softened down.

While I was born after April 1965, when the Centennial ended, I do remember this Peanuts cartoon from a book I had as a kid:

Cultural Literacy, Circa 1961

For some reason, the Sesquicentennial hasn’t attracted the same amount of publicity as the Centennial apparently did, when even kids reading comic strips could be expected to know about it, and possibly even recognize some of the songs.  It’s probably a combination of a decline in cultural literacy, and a harrowing sensitivity about race.  Or maybe the Civil War was just unlucky enough to have its 150th Anniversary start in a year when the Founders were hogging all the attention.

One has to admire the audacity of the authors to undertake such an effort, and the courage of their approach.

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A Wind-Assisted “Win”

In track and field, when a runner has the wind at his back, and records he sets don’t count.  Of course, in track, the win is still fair, because all the runners run under the same conditions.  With the press, it’s always uphill and against the wind for Republicans and Tea Parties, downhill and wind-assisted for Democrats and unions.

In a previous post, I put up a little retrospective of some of the more troubling behavior by Wisconsin public servants, aided and abetted by college students, Organizing for America, and the DNC.  I doubt whether even Mike Littwin would be able to claim this as a “win” if most of the country had seen these events as they were happening.  The national media, which goes out of its way, if necessary, to make up stuff about Tea Partiers, was rigorously careful not to expose the American public to these scenes.

What are perceived as heavy-handed tactics often have a way of backfiring.  (In Pennsylvania during the Constitutional ratification convention, for instance, dissenting members of the convention fled the scene to deny the convention a quorum, and two of them had to be hauled back bodily to Independence Hall to get the 2/3 necessary for business.  This, along with the refusal of the press to publish speeches critical of the Constitution and the refusal of the convention’s official journal to record all the speeches, forced the Federalists to tread much more carefully in succeeding states, particularly Massachusetts, New York, and Virginia.)

But they don’t usually backfire when the targets are unsympathetic louts.

Just to pick on Mike a little, the last lines in his column suggest that the DC Democrats might find the inspiration and spine to make bold entitlement reform proposals from the events in Wisconsin.  This makes no sense.  In Wisconsin, the Democrats were defending the insupportable and unsustainable status quo.  Failing to deal with entitlements, as the President has failed to do, would be more in keeping with that strategy.

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Ghosts of Constitutional Debates Past – Part IV

Continuing to work my way through the Debates on the Constitution, at a languid pace, I came to this letter from James Madison to Thomas Jefferson.  Jefferson was, at the time, Minister to France, so had no direct role in drafting the Constitution.  Madison’s main concern in the letter is federalism, and the division of powers between the states and the national government.  The letter serves as a reminder that the work of a committee, even a Constitutional Convention, is a work of compromise.  In particular, these paragraphs:

It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of sovereign States.  A voluntary of the federal law by all members, could never be hoped for.  A compulsive one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent & the guilty, the necessity of a military force both obnoxious & dangerous, and in general, a scene resembling much more civil war, than the administration of a regular Government.

Hence was embraced the alternative of a Government which instead of operating, on the States, should operate without their intervention on the individuals composing them: and hence the change in principle and proportion of representation.  (Emphasis added.)

This is critical, because it means that while the states would have a say in the federal government, in the form of the Senate and the Electoral College, the federal government would have no say in the selection of state officers, nor a direct veto on state legislation.  (Both of these options were considered.)  It also, I think, affects our reading of the Tenth Amendment, adding weight to the notion that individuals have standing to challenge federal attempts to overstep their bounds.

Right now, the Supreme Court is considering such a case:

Surveillance cameras captured Ms. Bond stealing an envelope from Ms. Haynes’s mailbox and stuffing potassium dichromate in her car’s muffler. That led to federal charges of stealing mail—and violating criminal statutes implementing the international Chemical Weapons Convention, which the U.S. ratified in 1997. Ms. Bond, who in 2007 was sentenced to six years imprisonment, appealed on grounds that Congress lacked authority to punish her for the chemical assaults.

In Philadelphia, the Third U.S. Circuit Court of Appeals denied Ms. Bond the right to raise that claim, ruling that only state officials had legal standing to assert a 10th Amendment violation of their authority. When Ms. Bond appealed to the Supreme Court, the Justice Department abandoned the Third Circuit’s decision, conceding individual defendants were entitled to argue that they were charged under laws exceeding congressional power.

For the record, keep your eye on another moving part here: whether treaties are permitted to override Constitutional protections.  This could mean that even if the US were to sign a small arms treaty of some kind, provisions that violate our understanding of the 2nd Amendment might not apply here in the US.  This isn’t to imply that signing or ratifying such a treaty would be a good idea, or that the Court would agree with me, just that the Court’s decision on this case might signal its current thought on the matter.

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Ghosts of Constitutional Debates Past – Part III

So, a couple of weeks ago, we left the Constitutional debate with William Findley’s detailed, 22-point objection to the document.  The editors of the Library of America volume include a similarly detailed, point-by-point rebuttal, by an anonymous respondent under the pseudonym “Plain Truth.”  Some of his responses are weak, others are off the mark, but other score some points, and it’s interesting to see which are which.

Two of the themes that evolved early on were the lack of a Bill of Rights, and the stability of the tension between the states and the federal government.  While the concern is among the most serious, the argument here back and forth is among the weakest, in part because of the lack of historical reference points.  The Dutch and the Swiss had federal republics, but they were small, and the great threats came from outside, not inside.  The Roman Empire – always a point of reference – was more useful is worrying about the concentration of power in the executive, a completely different mal-distribution of power.

But the question of whether or not the tension between the states and the federal government could be maintained, or would eventually either consolidate or fracture the Republic, is one that has to be conducted almost entirely in hypotheticals.  It makes for a debate that we can evaluate in retropect, but one which must have been frustrating for those who weren’t committed to one side or the other.  The federal-state split also manifests itself in odd ways.  One letter in opposition to the Constitution, a “Letter from An Old Whig,” argues that the amendment process is too cumbersome, and that either no amendments will ever pass, or the country will tear itself apart trying to pass them.

Oddly, the debate between Findley and the rebuttal on this point could be about slavery – but isn’t, at least not in the way we think of it later.  Findley objects that Congress can’t ban the slave trade until 1808, and his respondent says that he agrees this is too long, but since the matter can’t be much worse than it is now, maybe at least by then it will be better.

The question of a Bill of Rights is rebutted with much the same logic that Wilson used in his original speech defending the new Constitution: it isn’t necessary, since we assume that Congress’s powers are exclusive, while state constitutions are inclusive.  Findley’s objection isn’t that this is wrong, but that he doesn’t trust that the Framers really mean it, or that future generations will live by it.  The debate over the Banks of the United States would show there was some real risk on this point, but even that debate was carried on with the assumption of enumerated power, that the burden of proof was on the Bank’s advocates.

And for you 2nd Amendment fans – and who among us isn’t a 2nd Amendment fan – there’s the response to Findley’s worries about a standing army.  “Plain Truth” claims that a standing army shouldn’t be a concern, since every man is a member of a militia, and what standing army could pose a threat to that?  For those of you who think that guns are only for personal defense, consider that long and hard.

Two other points about the tenor of the debate stand out, as well.  There’s another letter from Cincinnatus which reads like a blog screed.  The “Old Whig’s” letter starts off professing that he really wants to be persuaded of the Constitution’s goodness, at least as an experiment.  It’s not apparent whether he’s sincere, or is the Revolutionary Era equivalent of a seminar caller.  The “Plain Truth’s” point-by-point refutation reads like an expert Fisking.  In short, this is what robust, healthy political debate looks like.

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Ghosts of Constitutional Debates Past – Part II

In Ghosts of Constitutional Debates Past, I looked at some of the things that Centinel, aka Samuel Bryan, objected to in the Constitution, and how some of his projections about how power might migrate away from the original plan seemed to parallel the claims that the Progressives have made stick in order to distort the Framers’ initial plan.  The next few letters in the Library of America’s compilation of the debate likewise are from the anti-Constitutional party.  And they point out some of the things that they got very wrong.

One of Centinel’s worries was that the Constitution would create a permanent aristocracy.  But his concerns center not on the executive, but on the Senate.   Interestingly, Centinel’s analysis virtually places the Senate not in the legislative branch, but in the executive branch, since it has a role in approving treaties and confirming appointments.  The Vice President, of course part of the executive branch, is President of the Senate.  With a weak executive, Bryan is more concerned that we’ll see a hegemony of the Senate than of the Presidency.  He’s correct that Montesquieu prescribed a strict separation of the executive and legislative powers as a precondition of liberty.  But it’s the Presidency, with the help of a Congress that has delegated legislative power to the executive, and the complicity of favorable Supreme Court rulings, that has gotten there, not the Senate.

One of the recurring themes also was the preservation (or the alleged lack thereof) of the juries in civil cases.  Now, eventually this was rectified in the 7th Amendment (thank you, George Mason), but what’s interesting here is the rhetoric.  The anti-Constitutionalists assume that this was a deliberate act by the Convention, in order to help the higher courts usurp the lower courts, and to weaken liberties.   In fact, this point was debated in the Convention, in the context of a Bill of Rights.  But the reason that some opposed including it in the Constitution was that the laws varied from state to state, and that detailing which cases were appropriate for juries would be difficult.  (There are some civil cases that traditionally did come before judges rather than juries; in such cases “equity” law was said to apply.  I’m nowhere near an expert on what made a case an “equity” case as opposed to a jury case, and apparently the Conventioneers were similarly daunted by setting forth rules for the distinction.)

So, while Bryan and his cohort did get certain concerns correct, they missed others by a wide mark: it wasn’t the Senate that was the threat, and the fact that the Convention missed some elements didn’t imply a grand conspiracy to deprive people of their liberty.

UPDATE: After further reflection, the importance of juries in civil suits, which are  by definition property rather than criminal cases, reinforces the fact that property rights were seen (and ought to be seen) as identical with political rights.

I’d also point out that Centinel’s concern that the federal courts would inevitably trump the state courts in civil cases has also not borne out.  One instance is liability law, where the worse abuses have occurred in state courts (take asbestos, for instance), and the federal courts have been powerless to stop them.  The situation has only gotten better with the revisions of state law to make them more sensible.

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Ghosts of Constitutional Debates Past

I’ve been working my way (slowly) through the Library of America’s Debate on the Constitution, a two-volume set.  While the Federalist is a  – the – American political philosophy, it represents the thoughts of only three authors, and can’t possibly answer all of the concerns that people had about the Constitution at the time.  The entire debate is a much more complete document, all the more valuable because it preserves the dissenting opinions.  We do that in judicial cases because the reasoning itself may be important to future decisors.  It puts the defenses in context, perhaps anticipates future arguments.

One of the first arguments against the Constitution comes in a letter from “Centinel” (they had plenty of variant spellings back then), one Samuel Bryan, in a letter to the Independent Gazetteer, dated October 5, 1787, less than a month after the Convention adjourned.  While we consider the Constitution to be brilliant applied political philosophy designed to protect our God-given natural rights, the opponents were often concerned that it would prove to be a path to despotism, that is, that the Constitution itself contained the means to undermine liberty.  Since the Independent Gazetteer didn’t survive long enough to sign a deal with Righthaven, I’ll quote at length.

He is skeptical of John Adams’s claim that a balance of powers at the federal level is even achievable:

This hypothesis supposes human wisdom competent to the task of instituting three co-equal orders in government, and a corresponding weight in the community to enable them respectively to exercise their several parts, and whose views and interests should be so distinct as to prevent a coalition of any two of them for the destruction of the third.

One could reasonably argue that the executive, with the collaboration of the Court and the capitulation of the Congress, has been progressively acquiring legislative powers.

Bryan anticipates the misreading of the Progressives of Article I Section 8:

“the Congress are to have the power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense, and general welfare of the United States; but all duties, imposts and excises, shall be uniform throughout the United States.”  Now what can be more comprehensive than these words; … to grant… the absolute controul over the commerce of the United States….The Congress may construe every purpose for which the state legislatures now lay taxes, to be for the general welfare, and thereby seize upon every object of revenue.

He’s focusing on taxes, but the abuse of the general welfare clause is indisputable, and he anticipates the erasure of the proper reading of the Commerce Clause.

Bryan also predicts the hegemony of the courts, in particular, the hegemony of the federal courts over state courts, and of the erosion of state power at the hands of the federal government in general.

…it is more probable that the state judicatories would be wholly superceded; for in contests about jurisdiction, the federal court, as the most powerful, would every prevail.

To put the omnipotency of Congress over the state government and the judicatories out of all doubt, the 6th article ordains that, “this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land…”

By these section, the all-prevailing power of taxation, and such extensive legislative and judicial powers are vested in the general government, as must in their operation, necessarily absorb the state legislatures and judicatories, and that such was in the contemplation of the framers of it…

Now to be fair, in order to reach these conclusions, he has to ignore other sections of the Constitution, distort the Framers’ clear intent, and claim that later rebuttals are in bad faith.  Congress is explicitly limited in the types of taxes it may levy.  The Commerce Clause is not as expansive as he reads it.  The General Welfare Clause is not blanket permission to enact any sort of law Congress wants to.   Some of them would later be explicitly rectified by the Bill of Rights.   Others would indeed be exploited by judges looking to change the system.  But for him, these failings he claims to have discovered are a bug; for the Progressives, they’re a feature.

While we consider Madison, Hamilton, and Jay to be the heroes of the piece,  that Centinel predicted so many of the distortions later introduced by the Progressives lends his arguments relevance.

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