What is the best source detailing the activities of Walter Hines Page (President Wilson’s Ambassador to the Court of St. James) in advising the British government about how to conduct propaganda operations in the United States, prior to U.S. entry into World War I?
How about for the general American view (during the 1920s) that American entry into WWI was a mistake, and the U.S. had been tricked by British business interests?
From a review in the most recent issue of Reviews in American History:
Like most conservatives, Shlaes assumes a perfectly competitive marketplace in which the government can only make an unwarranted and counterproductive intrusion. This perspective leads Shlaes to discount the role of jobs programs such as the CCC and the WPA that contributed to the decline in unemployment from 22 percent in 1932 to 9 percent in 1937. By setting a standard in which a public program cannot provide real work and must be temporary, she forecloses the possibility that any government program could strengthen the economy. Because Shlaes’ position is roughly equivalent to a cancer researcher who refuses to count remissions from chemotherapy, Hiltzik easily rebuts her.Outside these parameters, however, Hiltzik has his own problem. The New Deal did reduce unemployment, but it was ultimately World War II and the warfare/welfare state emerging out of it that has kept the rate down ever since. Although Hiltzik briefly acknowledges World War II’s role in reducing unemployment, both he and Shlaes actually suffer from parallel oversights: Hiltzik does not fully account for the military component of the intervention, and Shlaes does not count the welfare.
On MSNBC over the weekend, Melissa Harris-Perry had some very kind words to say about some of my research a decade ago on guns in early America and the errors of Michael Bellesiles’s
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Here is the transcript of Harris-Perry’s comments:
[I]t`s not just sports where knowing the rules of the inside game can make all the difference. Let me take you to the original Nerdland, the academy, where inside fights rarely make the news, but sometimes the topics pack enough political heat to make professors into headliners. Take this scandal. In 2000, a remarkable piece of academic work was published by the then much respected Emory University historian, professor Michael Bellesiles. In his book, “Arming America,” he used hundreds of old documents to prove that gun ownership was uncommon in the 18th century. He went on to say that given the rarity of gun ownership, there is no way the Founding Fathers intended the Second Amendment to ensure individual gun ownership rights. It was a moment of triumph in the gun control debate, when data, not polemic, proved the point.
Except it was not true. In an epic academic takedown a year later, a law professor from Northwestern University, James Lindgren, went through hundreds of pages of Bellesiles`s footnotes and found that much of the data were falsified. In fact, there were far more guns in earlier America than Bellesiles claimed. And Professor Bellesiles resigned from his tenured job, and was stripped of his book awards.
But most damning of all, the research he`d hoped would make a case for gun control only served to bolster the claims of the NRA.
It`s an example of inside baseball. The minutia of academic footnotes and the insiders game of replicating data turned into a politically consequential battle that shifted the discourse on guns in America.
She is referring to my co-authored Wm & Mary article and my Yale review of
Newly declassified documents reveal that the U.S. government concealed evidence that the Soviet Union was responsible for the Katyn forest massacre of several thousand Polish POWs. In all, over 20,000 Poles were killed in mass executions. The USSR had consistently denied responsibility for the killings until 1990. The newly released documents show U.S. officials were aware the Soviets were to blame as early as 1943, but kept quiet so as not to strain relations with the Soviets.
Documents released Monday and seen in advance by The Associated Press lend weight to the belief that suppression within the highest levels of the U.S. government helped cover up Soviet guilt in the killing of some 22,000 Polish officers and other prisoners in the Katyn forest and other locations in 1940.
The evidence is among about 1,000 pages of newly declassified documents that the United States National Archives released and is putting online. . . .
Historians who saw the material days before the official release describe it as important and shared some highlights with the AP. The most dramatic revelation so far is the evidence of the secret codes sent by the two American POWs — something historians were unaware of and which adds to evidence that the Roosevelt administration knew of the Soviet atrocity relatively early on.
The declassified documents also show the United States maintaining that it couldn’t conclusively determine guilt until a Russian admission in 1990 — a statement that looks improbable given the huge body of evidence of Soviet guilt that had already emerged decades earlier. Historians say the new material helps to flesh out the story of what the U.S. knew and when.
As people discuss whether Justice Roberts avoided politics by siding with the left side of the Court or instead yielded to political pressure to change his vote, I want to point to an article that I posted on SSRN a couple of days ago. It shows that Supreme Court justices do tend to act politically in one respect: They tend to retire or take senior status strategically to favor the party of the president who appointed them.
My co-author, Rafe Stolzenberg, and I also plot how much older the justices have become in the last half-century.
Figure 1
Means of Sitting Justices’ Age at Oath, Age, Eventual Age at Departure From Court, and Eventual Age at Death (in order listed) Versus Calendar Year
Note: Lines are fitted and smoothed by Cleveland’s locally weighted regression (LOWESS).
Note that, while the age at oath has changed little in the last 150 years, the age of the sitting justices and the eventual age at departure have both increased in the last half-century (the latter markedly).
We also made a large number of methodological improvements on prior work. For example, most studies had assumed that the longer justices served, the more likely they were to retire. If that were true, that would be a strange job. In most jobs, once people settle in, they are more likely to stay, rather than more likely to leave. Indeed, our analysis shows that it is not until justices reach their 25th year of tenure on the Court that an additional year on the Court makes them more likely to retire. Before that, each additional year of service makes them instead more likely to stay on the Court. Some of the odd results of prior studies on strategic retirement might in part reflect their using a linear version of the variable longevity of tenure on the Court. We used fractional polynomials to (nearly optimally) determine the shape of the longevity curve to fit.
Moreover, we introduce the first good measures of justices’ health when they retire. We know the date of death for all retirees except the most recent ones. There is substantial demographic research suggesting that knowing the years left to live is an excellent measure of both actual and subjective health on the date of retirement.
Our paper, “Retirement and Death in Office of U.S. Supreme Court Justices,” can be downloaded at SSRN.
More here.
UPDATE: On the effect of more years on the job:
The effect of an additional year of tenure becomes increasingly negative through the 15th year on the Court, when an additional year of tenure decreases expected retirement odds by 12.5%. Thereafter, the negative effect of an added year of tenure weakens annually, until it becomes positive at 25 years. At 28 years of tenure, an additional year increases expected retirement odds by 11.2%. At 29 years, the increase is 15.8%. . . .
Tenure effects on retirement follow the “bathtub distribution” typical of orderly failure time processes. Justices start their service with elevated risk that removes individuals unsuited for the position (called “manufacturing defects” in failure-time studies), followed by a long period of low retirement rates (“regular service”), after which failure rates rise sharply (“end of service life”).
Do U.S. Supreme Court justices tend to try to time their retirements to help the political party of the president who appointed them? University of Chicago sociologist Rafe Stolzenberg and I have an article in the journal Demography that finally answers that question: Yes, justices do act politically when deciding whether to retire or take senior status. One interesting finding is that since 1789 justices have been more likely to die in office when the party of the current president is different from the party of the president who appointed him.
Our paper, “Retirement and Death in Office of U.S. Supreme Court Justices,” can be downloaded at SSRN.
Here is the abstract [abstract revised after posting]:
In this study, we construct demographic models of retirement and death in office of U.S. Supreme Court justices, a group that has gained demographic notice, evaded demographic analysis, and is said to diverge from expected retirement patterns. Models build on prior multi-state labor force status studies and data on justices permit an unusually clear distinction between voluntary and “induced” retirement. Using data on every justice from 1789 through 2006, with robust, cluster-corrected, discrete time, censored, event history methods, we (1) estimate retirement effects of pension eligibility, age, health, and tenure on the timing of justices’ retirements and deaths in office, (2) resolve decades of debate over the Politicized Departure Hypothesis that justices tend to alter the timing of their retirements for the political benefit or detriment of the incumbent President, (3) reconsider the nature of rationality in retirement decisions, and (4) consider the relevance of organizational conditions as well as personal circumstances to retirement decisions.
Computing robust standard errors with adjustments for clustering by justice, we find that the odds that a justice will retire (or resign or take senior status) in the first two years of the term of a president of the same political party as the president who first appointed him to the Court are about 2.6 times the odds of retiring under a president of the opposing party in the last two years of his presidential term. As hypothesized, roughly the opposite pattern is observed for dying: The odds of death in office odds are about three times higher when the incumbent president is not of the same party as the president who appointed the justice (compared with when the incumbent president is of the same party).
To illustrate that our analyses are not sensitive to different ways of conceptualizing the problem, we also show that if one views death and retirement as competing risks, an approach that we do not favor, the results of a multinomial probit show much the same effects as we show for separate analyses of retirement and death in office.
We find that the odds that justices will retire or take senior status in a year when they are eligible for their pension are more than eight times larger than the odds of retirement in years in which they are not eligible for their pension. Also, contrary to researchers who have hypothesized tenure on the bench as a linear predictor or those who find that increasing tenure always increases the estimated odds of retirement, we find that until judges have been on the bench for 25 or more years, each additional year of tenure makes them less likely to retire, rather than more likely to retire. We also document the secular increases since 1789 in the ages at which United States Supreme Court justices leave the Court, the ages at which they ultimately die, their length of tenure on the Court, and the probability that they will leave office by retirement, rather than by death.
In general, our empirical account supports the rich historical literature that documented individual cases in which justices resigned, retired, or took senior status to perpetuate party influence on the Court. We find that Supreme Court Justices act more or less as one would expect sophisticated people to act regarding their careers. While personal factors, such as pension eligibility, are more important predictors of retirement than political variables, the data are nonetheless consistent with a hypothesis of politicized departure: Whether leaving by retirement, resignation, or death, justices tend to time their departures from the Court based in part on a president’s party and the years remaining in a president’s term in office.
Every year the political roundtable show Colorado Inside Out does a time machine episode. Last year’s 1951 episode has just been nominated for a regional Emmy Award, in the news/interview program category. Our topics for the episode were the firing of Gen. Douglas MacArthur, the Korean War, duck and cover training, and the new federal government center in Denver. Characters were the famous singer and actress Ethel Merman, who had recently moved to Denver (played by Westword publisher Patty Calhoun), newspaperman Al Nakula (played by former Rocky Mountain News journalist Kevin Flynn), sociology professor Lois Waddell (played by Dani Newsum), and southern Colorado newspaper editor Cecil Koplowitz (played by me, evoking my father’s first journalism job, in Walsenberg).
We are getting ready to tape a new episode, which will be set in 1912. Patty Calhoun will portray Denver socialite and social climber Molly Brown. I’m busy reading about the Balkan War which began in 1912. The episode will premiere on Friday, July 6.
In a column from 2000, I examined what military historians suggest might have happened if the D-Day landings had been repulsed. Or what if they had taken place in 1943 instead of 1944? The short answers are that if D-Day had failed, Stalin would have ended up occupying almost all of German, which would have significantly changed the balance of power in the Cold War. Had the Allies invaded France in 1943, rather than invading Sicily, they probably would have made faster progress than they did in 1944. VE Day would have come a year earlier, with the Allies capturing most of Germany.
In 1994, Dan Gifford and I wrote that “D-Day was almost a German holiday.” That is, in the darkest days of the war, defending U.S. coastal areas was a crucial concern. Fortunately, the states were able to call forth their self-armed citizen militias for coastal defense, while the U.S. Army and National Guard were busy elsewhere.
This is the subject of my article in a forthcoming symposium issue of the Fordham Urban Law Journal. The article details the political, cultural, social, and legal battles over gun control from the 1920s to the early 21st century. Here’s the abstract:
A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.
Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, at most, allowed as a very limited privilege. Another side asserted that the right to arms was absolute, and that any gun control laws were infringements of that right.
By the time that Heller and McDonald came to the Supreme Court, the battles had mostly been resolved; the Supreme Court did not break new ground, but instead reinforced what had become the American consensus: the Second Amendment right to keep and bear arms, especially for self-defense, is a fundamental individual right. That right, however, is not absolute. There are some gun control laws which do not violate the right, particularly laws which aim to keep guns out of the hands of people who have proven themselves to be dangerous.
In the post-Heller world, as in the post-Brown v. Board world, a key role of the courts will be to enforce federal constitutional rights against some local or state jurisdictions whose extreme laws make them outliers from the national consensus.
Also recently published in SSRN is a very good draft article by David Hardy, analyzing the four opinions in McDonald v. Chicago. As he persuasively shows, the arguments by Justice Stevens and Breyer against enforcing the Right to Keep and Bear Arms against the states would, if taken seriously, cast serious doubt on the legitimacy of enforcing against the states almost everything else in the Bill of Rights.
In July 1798, Congress enacted a direct tax to raise revenue for national defense against France. The “House Tax” imposed taxes on land, houses, and slaves. As required by Article I, section 9, clause 4 of the Constitution, this direct tax was apportioned by state population. Fries’s Rebellion, which was eventually suppressed by President Adams, involved violent resistance to this tax, based on the claim that the tax was unconstitutional. Because the direct tax was properly apportioned, it seems perfectly constitutional to me. Does anyone know the specifics of the constitutional objection to the House Tax?
I posted a draft of this article a few months ago, and I thank VC readers for some helpful comments in improving it. The final version has been published by the Charleston Law Review, and is available on SSRN. Here’s the abstract:
This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.
From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if their purpose is to disarm the public, rather than for the normal purposes of import controls (e.g., raising tax revenue, or protecting domestic industry). We can discern that broad attempts to disarm the people of a town, or to render them defenseless, are anathema to the Second Amendment; such disarmament is what the British tried to impose, and what the Americans fought a war to ensure could never again happen in America. Similarly, gun licensing laws which have the purpose or effect of only allowing a minority of the people to keep and bear arms would be unconstitutional. Finally, we see that government violence, which should always be carefully constrained and controlled, should be especially discouraged when it is used to take firearms away from peaceable citizens. Use of the military for law enforcement is particularly odious to the principles upon which the American Revolution was based.
Readers interested in more detail on the role of gun rights and gun control in period leading up to the Revolution, and in the remainder of 18th century America, are encouraged to read Stephen Halbrook’s excellent book The Founders’ Second Amendment, which is the result of decades of work by Halbrook in finding primary sources of the period, including newspapers, correspondence, and diaries.
On a related topic, some readers might also be interested in my 2005 article The Religious Roots of the American Revolution and the Right to Keep and Bear Arms, detailing the role of Congregationalist and other ministers in inciting the Revolution, by explaining collective self-defense of natural and civil rights as a moral and religious obligation.
Just published on-line by the Ludwig von Mises Institute, at Auburn University. Edited by Christopher Kalabus. Subtitled “Peace and Prosperity: A collection of historical, legal, and philosophical quotations.” Begins with Edward Abbey and Bruce Ackerman, and concludes with Aaron Zelman. In-between are quotes from VC writers Adler, Barnett, and Kopel. Plenty of pro-right to arms quotes, for those who like that sort of thing.
UCLA Professor David Hayes-Bautista explains the 1862 origins, an all-American holiday created by Mexican-Americans, who saw the Mexican victory against the French attempt to destroy Mexican democracy as another front in the Union’s battle against the Slave Power.
The Franco-Mexican war continued until 1867, and American firearms played an important role in the liberation of Mexico. When the French occupied Mexico City, Mexican President Benito Juárez set up a resistance movement in northern Mexico. There, he ordered 1,000 Winchester Model 1866 carbines in .44 caliber, to be delivered to Monterrey, along with 500 cartridges per gun. The Juárez forces paid $57,000 in silver coin. “R.M.” – for “Republic of Mexico” – was inscribed on the frames of the carbines. Today, “Juarez Winchesters” are very valuable collectors items.
The New York Times has up a post by Philip Kitcher, John Dewey Professor of Philosophy at Columbia University, on Social Darwinism. Kitcher is eager to reach the conclusion that the GOP’s budgetary policies are “Social Darwinist”, and in service to that agenda, or perhaps because his research on the matter isn’t up-to-date, her presents an extremely simplistic version of the history of Social Darwinism that’s right out of Richard Hofstadter’s influential but dubious 1944 work Social Darwinism in American Thought. As an antidote, I recommend reading Thomas C. Leonard’s excellent essay, Origins of the Myth of Social Darwinism: The Ambiguous Legacy of Richard Hofstadter’s Social Darwinism in American Thought. The short version: our current concept of “Social Darwinism” has a lot less to do with what intellectuals of the late 19th and early 20th century actually believed–Progressives often broadly fit the category of “Social Darwinist”, libertarian types less so than is commonly believed–and more to do with the Hofstadter’s ideological agenda of supporting Progressive economic reform (Wikipedia quotes him as saying, “I hate capitalism”) while undermining the case for using biology in the social sciences.
UPDATE: So, Hofstader deemed “Social Darwinists” not people who called themselves Social Darwiwinists, nor always those who used scientific or biological concepts to inform social policy. Rather, he largely defined Social Darwinists as those whose views were diametrically opposite to his own, in that they believed in the relevance of science to social policy and were individualists in their social policy outlook. Thus, the many Progressives who believed that the “survival of the fittest” meant that an active government was necessary to ensure that American society was able to compete with other societies did not generally get labeled as Social Darwinists. (Indeed, Darwinian ideas in social policy long outlasted the virtual last gasps of laissez-faire ideology in the late 19th century.) And to make it worse, Hofstader frequently exaggerated or misstated the views of those he did deem Social Darwinists (see this book for a debunking). Kitcher’s post continues in the long tradition of left-wing academics defining Social Darwinism as “that to which I am ideologically opposed.”
FURTHER UPDATE: Some comments have led me to think I should actually have been even more critical of Kitcher. He defines Social Darwinism as the ideology of those who (a) believe that people have natural talents and abilities and that (b) competition is a good thing and creates societal benefits. He then explicitly excludes versions of Social Darwinism that were popular among Progressives in the early 20th century, supportive of imperialism (the most infamous purported American libertarian Social Darwinist, William Graham Sumner, was a vigorous opponent of imperialism) and eugenics. Even Hofstadter wasn’t as crude about defining Social Darwinism so overtly to describe his contemporary ideological adversaries, such that the concept of evolution is basically absent, and to exclude those that would ruin his “story.”
President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.
It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)
President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.
That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.
Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.
It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.
As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)
Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.
President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States. You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.
The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.
President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.