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Review of Paul Finkelman’s “Supreme Injustice”

In America, American History, Arts & Letters, Book Reviews, Books, Dred Scott, Historicism, History, Humanities, Jurisprudence, Justice, Law, Laws of Slavery, liberal arts, Nineteenth-Century America, Politics, Scholarship, Southern History, The South, Writing on August 8, 2018 at 6:45 am

This review originally appeared here in the Los Angeles Review of Books.

Paul Finkelman is an anomaly: a historian with no law degree who’s held chairs or fellowships at numerous law schools, testified as an expert witness in high-profile cases, and filed amicus briefs with several courts. Federal appellate judges, including justices on the United States Supreme Court, have cited his work. Liberal arts professors anxious about the state and fate of their discipline might look to him to demonstrate the practical relevance of the humanities to everyday society.

Finkelman specializes in American legal history, slavery and the law, constitutional law, and race and the law. His new book, Supreme Injustice, tells the story of three United States Supreme Court Justices — John Marshall, Joseph Story, and Roger B. Taney — and their “slavery jurisprudence.” Each of these men, Finkelman argues, differed in background and methodology but shared the belief that antislavery agitation undermined the legal and political structures instituted by the Constitution. Had they aligned their operative principles with the ideals of liberty, equality, and justice enshrined in the Declaration of Independence, liberty rather than racism and oppression might have defined antebellum America.

Finkelman insists that the legacy of Marshall, Story, and Taney had enormous implications for the state of the nation, strengthening the institutions of slavery and embedding in the law a systemic hostility to fundamental freedom and basic justice. These are strong allegations, attributed to only three individuals. Yet the evidence adds up.

Start with Marshall, a perennially celebrated figure who, unlike many of his generation, in particular his occasional nemesis Thomas Jefferson, has escaped scrutiny on matters of race and slavery. Finkelman submits that scholarship on Marshall is “universally admiring” — an overstatement perhaps, but one that underscores the prevalence of the mythology Finkelman hopes to dispel.

Finkelman emphasizes Marshall’s “personal ties to slavery” and “considerable commitment to owning other human beings.” He combs through numerous records and presents ample data to establish that Marshall, a life member of the American Colonization Society, “actively participated in slavery on a very personal level.” Finkelman then turns to Marshall’s votes and opinions in cases, several of which challenged state laws and rulings that freed slaves. In fact, Marshall would go so far as to overturn the verdicts of white Southern jurors and the judgments of white Southern judges who, in freedom suits, sided with slaves and against masters.

Marshall could be an ardent nationalist attempting to effectuate the supremacy of federal law. One is therefore tempted to attribute his rulings against state laws in cases about slavery to his longstanding desire to centralize federal power. But that is only part of the story. Finkelman brings to light exceptions, including when Marshall selectively deferred to state law if doing so meant that slaves remained the property of their masters. Finkelman highlights these decisions to show that Marshall was hypocritical, compromising his otherwise plenary nationalism to ensure that contractual and property arrangements regarding slaves were protected by law.

Story was also a nationalist, having evolved from Jeffersonianism to anti-Jeffersonianism and eventually becoming Marshall’s jurisprudential adjunct. Unlike Marshall, however, Story could sound “like a full-blown abolitionist.” His opinion in United States v. La Jeune Eugenie (1822) was “an antislavery tour de force,” decrying slavery and the slave trade as “repugnant to the natural rights of man and the dictates of judges.”

Yet he prioritized radical nationalism over the rights of humans in bondage. In Prigg v. Pennsylvania (1842), writing for the Court, he deemed unconstitutional a state ban on the extradition of blacks out of Pennsylvania for purposes of slavery. Story jumped at the chance to pronounce the primacy of federal law over state law even if it meant employing the Supremacy Clause to validate the Fugitive Slave Act of 1793. “A justice who had once thought slavery was deeply immoral,” Finkelman bemoans,

rewrote history, misstated precedents, and made up new constitutional doctrine to nationalize southern slave law and impose it on the entire nation. The decision jeopardized the liberty of every black in the North, whether free or fugitive. The injustice of this opinion was profound.

Author of the notorious Dred Scott opinion, Taney is the most predictable of Finkelman’s targets. By the end of the Civil War, he was vehemently denounced and widely despised. Progressives in the early 20th century, most notably Felix Frankfurter, rehabilitated his reputation in part because progressive economic policy during that era promoted Taney’s approach to states’ rights and political decentralization. The mood has changed; most historians now probably agree that Taney “aggressively protected slavery” and “made war on free blacks.” Few law professors would recall Taney’s “early ambivalence about slavery and his defense of the Reverend Jacob Gruber,” who was arrested for sermonizing against slavery at a Methodist camp meeting and subsequently charged with inciting slave rebellion. Finkelman’s chapter on Taney thus runs with the grain, not against it.

At times Finkelman exaggerates or wishfully portrays the role of judges. He asserts that, prior to the Civil War, courts rather than Congress or the executive had “room for protecting the liberty of free blacks, liberating some slaves, providing due process for alleged fugitive slaves, enforcing the federal suppression of the African slave trade, or preventing slavery from being established in federal territories.” This claim may hold up in some of the cases Finkelman discusses (e.g., LaGrange v. Choteau [1830], in which Marshall declined the opportunity to enforce federal law that could have freed a slave who had traveled into free territory), but not in all of them. If a judge were faced with a problem of statutory construction, he (there were only male judges then) could have asked what the language of the statute meant, how it applied to the concrete facts and material rules before him, and whether it was constitutional, but anything more would have arguably exceeded the scope of his office.

The Constitution was silent about slavery until the Civil War Amendments, also known as the Reconstruction Amendments. Prior to them, any attempt to render slavery unconstitutional would have required appeals to natural law, natural rights, or other like doctrines that appear in the Constitution only in spirit, not in letter. The abolitionist William Lloyd Garrison believed the Constitution was affirmatively proslavery, calling it a “covenant with death” and “an agreement with Hell.” If this is true, then when judges swear an oath to defend the Constitution (the basic framework of government with which all other laws in the United States must comport), they are also inadvertently vowing to defend the institution of slavery — unless the law is more than what statutes and the Constitution provide, in which case these judges could reach beyond the positive law to principles pre-political and universal.

Finkelman suggests another alternative: that certain constitutional provisions supplied a basis in positive law for antislavery strategies and stratagem. He cites, among other things, the congressional powers exercised in the reenactment of the Northwest Ordinance and the enactment of the Missouri Compromise and Oregon Territory; the admission of new free states into the United States; the due process guarantees of the Fifth Amendment; the rights of criminal defendants protected by the Sixth Amendment; the Privileges and Immunities Clause; and the guarantees of the First Amendment.

Each of these would have been problematic during the period Finkelman covers. There was not yet a 14th Amendment through which provisions of the Bill of Rights could have been incorporated to apply against the several states, although state constitutions contained protections of fundamental rights that federal judges recognized and affirmed. Moreover, the provisions Finkelman enumerates empowered Congress, not the courts, to pursue robust antislavery measures. Courts could have responded to and interpreted actions and directives of Congress, but they could not have initiated legislation or litigation. Had the Constitution enabled federal judges and the United States Supreme Court to strike down proslavery laws and regulations with ease, the Civil War Amendments might not have been necessary. But they were necessary to facilitate the demise of slavery.

Finkelman speculates about what the courts could have done to advance antislavery causes, but courts cannot do anything unless the right litigants bring the right cases with the right facts before the right tribunals while making the right arguments. Judges do not commence lawsuits but handle the ones brought before them. Finkelman could have examined some cases more closely to reveal how the facts, issues, reasoning, and holdings should have differed in rationale, not just in result. Too many cases receive only cursory treatment; lawsuits are more than picking winners and losers.

At one point, Finkelman accuses Marshall of reading a statute “in favor of slavery and not freedom,” but the statute isn’t quoted. Readers will have to look up the case to decide if Marshall’s interpretation was reasonable or arbitrary — if, that is, his hermeneutics adequately reflected a common understanding of the statutory language or intolerably controverted congressional purpose and prerogative. Finkelman chides departures from precedent, but rarely analyzes the allegedly controlling cases to verify that they are, in fact, dispositive of the later controversy by analogy of received rules.

One is regularly left with the impression that the only issue in the cases Finkelman evaluates was whether a slave should be free or not. Many of the cases, however, involved procedural and jurisdictional complexities that had to be resolved before grand political holdings implicating the entire institution of slavery could be reached. We’re still debating the ambiguities of federalism (e.g., how to square the Supremacy Clause with the Ninth and 10th Amendments) that complicate any exposition of the interplay between state and federal law, so it can seem anachronistic and quixotic to condemn Marshall, Story, or Taney for not untangling state and federal law in a manner that in retrospect would appear to have occasioned more freedom and less bondage.

Then again, it’s hard to fault Finkelman for subjecting these giants of the law to such high standards. That men like Marshall and Story have not been investigated as their contemporaries have in light of the horrors and effects of slavery speaks volumes about the willful blindness of the legal profession and the deficiencies of legal scholarship. Finkelman remains an important voice in legal education and has pushed scholarly conversations about slavery in new directions. At 68, he’s likely got more books left in him. Anxious readers await the next.

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Richard Bulliet on Transformations in Europe, 1500-1750

In Academia, Arts & Letters, History, Humanities, liberal arts, Pedagogy, Philosophy, Politics, Teaching, Western Civilization on July 18, 2018 at 6:45 am

In the following lecture, Professor Richard Bulliet discusses transformations in Europe during the period of 1500 – 1750:

What Is Federalism?

In Jurisprudence, Law, Philosophy, Politics on May 16, 2018 at 6:45 am

Federalism refers to the organization of several divided polities that share and compete for power under the jurisdiction of a central government that derives its authority from a binding contract or constitution to which the polities have submitted or otherwise consented either expressly or impliedly.

The goal and effect of federalism is to disperse, diffuse, and decentralize power among competing units of government, mediate conflicts that arise between diverse groups and interests within different polities, and integrate cultural and normative variety into the governing institutions that hold different polities together in political union.

Licensing Away Economic Prosperity

In Economics, Law, Libertarianism, Politics on March 21, 2018 at 6:45 am

This article originally appeared here in the Alabama Political Reporter. 

Do you want to alleviate poverty in Alabama? Do you want to curb the power of special interest groups over government agencies? Do you want more affordable goods and services in basic industries?  Do you want to help disadvantaged groups find good jobs and become productive citizens? Do you want to reduce the population of our overcrowded prisons?

If you answered yes to any of these questions, you should read a new reportpublished by the Alabama Policy Institute titled “The Costs of Occupational Licensing in Alabama.” Coauthored by Daniel Smith (Troy University), Courtney Michaluk (Troy University), David Hall (Troy University), and Alex Kanode (George Mason University), the report details the effects of occupational licensure on our state.

What is occupational licensure? In short, it’s governmental regulation requiring people to obtain a license before entering into certain trades or fields. Sounds harmless, right? Aren’t these regulations in place to protect consumers from exploitation and inexpert practices? Such reasoning led to the rise in occupational licensure, which today extends to several zones of economic activity.

However well-meaning, occupational licensure has had unintended consequences on the people it’s designed to protect. Instead of helping average consumers, it lines the pockets of industries that have lobbied to regulate away entrepreneurial forces that drive down costs.

If you’re poor and trying to find low-skilled work as a barber, manicurist, eyebrow threader, hair stylist, school bus driver, or shampoo assistant, you must obtain a license first. This license may be prohibitively expensive because of renewal fees, coursework, continuing education, and so forth.

“Alabama licenses a total of 151 occupations,” according to the report, “covering over 432,000 Alabama workers, which represents over 21 percent of the labor force.” Think about that: more than two of every 10 people working in Alabama need a license to do what they do for a living. Licensing boards governing admission standards and prerequisites can mandate expensive training and dues that don’t affect the quality of industry services.

Economists refer to occupational licensure as a barrier to entry. Barriers to entry ensure that those already within a profession or trade can raise prices to artificially high levels, in effect squeezing out competition by using the mechanisms of government to control the market.

Inflated prices harm low-income families who cannot afford to buy what they could have bought if the market had set prices based on natural supply and demand. Spouses of military service members often suffer from occupational licensure because, when they move from state to state, they must jump through hoops to enter the licensed profession in which they practiced in other jurisdictions.

Occupational licensure is, in short, a net burden on the economy, escalating prices, limiting consumer choice, and restricting economic mobility.  The API report estimates that the overall costs of occupational licensure in Alabama exceed $122 million. That’s a lot of money. What can be done to keep some of it in the hands of the ordinary people who need it most?

The report proposes five reforms for Alabama policymakers:

  1. “[T]hey can reform current procedures for extending occupational licensing to new occupations and mandate thorough review processes to ensure that licensing is not extended to new occupations without a demonstrable and severe threat to consumer safety that cannot be overcome with the market mechanisms, such as consumer or expert reviews, reputation, guarantees, or private certification, or the already existing government laws, such as those dealing with liability, fraud, misrepresentation, and false advertising.”
  2. “[T]hey can establish procedures to systematically review all licensure requirements for currently licensed occupations to ensure that they do not require unnecessary or excessive requirements or costs for licensure.
  3. “[T]hey can systematically review all currently licensed occupations to determine, individually, whether a demonstrable severe threat to consumer safety exists. If not, they can remove occupation licensing entirely for those occupations.”
  4. “[They] can explore licensure reforms that specifically target ex-offenders” to reduce the prison population and criminal recidivism.
  5. “[They] can … explore occupational licensing reform with military members and their families in mind.”

A short article cannot capture the nuance and particulars of the entire report; readers should view the report for themselves to make up their own minds.

During this time of partisan divide and political rancor, people of good faith on both the left and the right can agree that something needs to be done about occupational licensure. The problem cannot continue to grow. It presents a unique opportunity for Republican and Democratic lawmakers to come together to ease economic burdens on the people of Alabama. Let’s hope they seize it.

What is Conservatism?

In Arts & Letters, Conservatism, Humanities, liberal arts, Philosophy, Politics, Western Philosophy on March 14, 2018 at 6:45 am

Conservatism in the sense in which I use the term refers to an attitude or disposition that rejects ideology (all-encompassing systems of normative theory and institutionalized practices that drive policy towards idealized or utopian ends) and radicalism or extremism (the quality of holding fanatical, severe, or drastic views).

Conservatives so styled are neither doctrinaire nor absolutist. They tend to be spiritual, or at least recognize in humans a need and desire for spiritual fulfillment and religious order. Change, they believe, is inevitable; it should occur prudentially, gradually, and naturally through civil debate, prescribed political processes, and nonviolence.

Conservatism predicates the necessity for moral order on the imperfectability of human nature and the limitations of human intelligence; its normative values are embedded, historical, local, contextual, and rooted in immemorial usage.

Conservatism views the past as a fund of wisdom and knowledge, not as a brooding evil to be discarded, erased, or escaped. It therefore respects cultural continuities.

Russell Kirk’s various iterations of conservative principles in different versions of The Conservative Mind are, in my mind, the surest expressions of conservatism to date.

A Conversation Regarding Thomas Goode Jones

In America, American History, Books, History, Humanities, Law, liberal arts, Nineteenth-Century America, Politics, Scholarship, The South on November 8, 2017 at 6:45 am

Bob Higgs, the Man with a Smart Card

In Creativity, Economics, Law, Politics, Science on October 11, 2017 at 6:45 am

A different version of this article appeared here in the Library of Law and Liberty.

The U.S. healthcare industry is notoriously inefficient and troublesomely massive. It’s also wealthy and getting wealthier and more powerful as medical costs have exceeded, by some estimates, $10,000 per person.

What’s to be done?

Back in 2005, a group of healthcare experts asked, in a RAND Corporation study, whether electronic medical-record systems could transform healthcare by reducing costs and increasing efficiency. The answer, in short, was: it depends.

Although systematizing electronic medical records could save over $81 billion per year, these potential savings would be realized, the study concluded, only if healthcare in the United States integrated new technologies to allow for the flow of medical data between the patient and relevant parties such as doctors, hospitals, or insurers. Non-standardized record systems would result, by contrast, in inconsistent, inefficient, and incomplete data exchanges that could increase rather than decrease costs.

RAND Corporation revisited the issue in 2013, finding that healthcare expenditures had grown by $800 million since 2005 in part because systems of electronic medical records remained non-standardized. “We believe that the original promise of health IT can be met,” wrote Arthur L. Kellermann and Spencer S. Jones, the authors of the study, “if the systems are redesigned to address these flaws by creating more-standardized systems that are easier to use, are truly interoperable, and afford patients more access to and control over their health data.”

Healthcare in the United States is constitutionally fragmented: Not only does the industry consist of various entities, from doctors and hospitals and insurance providers to commercial suppliers of devices, goods, and services, but also the pricing of medical services is unreliable and unpredictable in part because the country is so large and the industry subject to different regulations from state to state.

Information integration could go a long way towards cutting medical costs and increasing medical savings. For example, it could reduce waste resulting from misdiagnoses, repetitive procedures, erroneous prescriptions, and duplicate testing and imaging.

What if there were a simple solution for this waste?

One entrepreneur believes he’s found the technology to revolutionize the way healthcare records are shared and maintained through Health Information Exchange (HIE).

Robert E. Higgs is the founder of ICUcare, a company that aims to improve technologies in the fields of telemedicine and electronic health records. He has invented a “smart” health card that can contain a patient’s complete medical history, which is stored in a cloud. His vision is that patients own their personalized smart cards, which they can voluntarily submit to healthcare providers and institutions for cheaper and more efficient services. Data on the card are easily stored and updated and exchanged only with the patient’s consent; thus, in the case of emergency, the patient’s medical records can be readily accessed and quickly reviewed.

There remains, sadly, a felt need to transition the healthcare industry from paper to electronic records. The smart card meets this need, but it does much more. It tracks your billing history, reconciles erroneous payment information, protects against fraud and identity-theft, and serves as a conveniently portable device.

One would expect such a card to have been in circulation by now, given the extensive government investment in HIEs. President George W. Bush, for example, issued an executive order in 2004 to create the Office of the National Coordinator for Health Information Technology (ONC), a division of the Department of Health and Human Services (DHS) designed to advance technology and innovation pertaining to the exchange of healthcare information. This office created eHealth Exchange, a coalition of states, federal agencies, hospitals, medical groups, pharmacies, and other such entities that’s now run by the Sequoia Project.

But the federal government and the public-private partnerships it has fostered have been unable to produce a smart card that matches Higgs’s in capability and functionality. And even if they had, government retention of sensitive medical data would, among other things, raise privacy concerns that voluntary private transactions and coordination would alleviate.

Moreover, the many spinoff organizations emanating from the ONC and DHS have only crowded the field with swollen, inefficient government and quasi-government structures and programs. Rather than helping the situation, these putative “solutions” have slowed down innovators like Higgs, forcing them to deal with politicians and bureaucrats rather than patients and hospitals.

Having heard about Higgs’s curious smart card through a friend, I decided to reach out to him to find out more. I asked him, first, about privacy implications, namely whether the smart card could increase incidents of non-consensual data transfers and disclosures.

The smart card, he said, “never sends data to the care provider—it brings the care provider to the data.” He explained that data on the smart card are encrypted using the same standards as those used by the Department of Defense for common-access cards.

“We used Advanced Encryption Standard 265, or AES-256,” he said, “the highest standardized encryption specification that’s used worldwide by entities as diverse as corporations and the U.S. government. The key size of 256 bits means that the key, which turns encrypted data into unencrypted data, is a string of 256 ones or zeros.”

I admitted that I didn’t fully understand.

“Put it this way,” he said. “The research I’ve read indicates that each character has two possibilities—one or zero—for which there are 2,256 possible combinations. If 50% of the possibilities must be exhausted to determine the correct key, then you need to guess 2,255 of them [to hack the encryption].”

Pressed about how long it would take to test all possible keys to break the encryption, Higgs, parroting a claim I’ve heard used to describe bitcoin, said, “The universe itself has existed for 14 billion years. It would take something like 1.5770813e18 longer than our universe’s full age to exhaust just half of the key-space of our encryption.”

An attempt to verify Higgs’s figures turned up a plethora of studies and blog posts about encryption and decryption, bitcoin, hacking, and computer engineering (the calculation appearing on many blogs and tech sites is ~6.7e40, which equals 235,385,265,247,008,100, which is multiplied by 6.7 to yield the 1.5770813e18 number that Higgs supplied).

These calculations can be confusing, but the point Higgs wanted to drive home is that the smart card reverses the current power imbalance: today corporations and governments store medical records that patients often can’t access or don’t know about; the smart card, however, empowers patients to store their own records that they may voluntarily release to corporations and governments. The smart card, in other words, returns agency to the consumer whose data is at stake.

It would also, Higgs alleges, reduce rates of healthcare fraud. According to estimates by the National Health Care Anti-Fraud Association, the United States loses tens of billions of dollars every year due to healthcare fraud. Canada, Germany, and France have each instituted some form of a smart card to successfully cut back on fraud.

A company called Cerner has just landed a deal with the Department of Veterans Affairs (the VA) to implement an electronic health records system. The move away from the VA’s Vista system to Cerner’s electronic system suggests that at least some government officials are aware of the need to adopt interoperable and integrated measures of retaining and sharing medical records. The VA will implement the same electronic health record system used by the DOD.

So far as I can tell, however, Cerner has not created a smart card like Higgs’s. I reached out to Adam Lee, a senior communications partner at Cerner, to ask about smart cards and Cerner’s hopes and plans with the VA. Lee referred me to this press release about Cerner’s work with the VA but did not discuss smart cards.

Talking to Higgs is like talking to a computer: more engineer than salesman, he’s strikingly intelligent but has difficulty getting through to politicians. He’s monotone and meticulous, frank and unexcitable. He’s fast with facts and figures and savvy with technology, but the average politician wants to know primarily whether the smart card appeals to constituents and only secondarily whether it’s operable and efficient.

Higgs grew emotional during our phone call, however, as he told me the story of his wife, who underwent a routine procedure that went wrong. He claimed that, during this standard operation, errors were made that could have been avoided had her doctors possessed his wife’s proper medical records. She’s been subjected to numerous tests throughout her illness, he said, only to have them redone when visiting a new facility or specialist because of an inability to simply retrieve her medical history. She remains in bad shape, living at home with hired assistance.

This unfortunate situation has motivated Higgs to seek answers to save others from similar mistakes in similar circumstances.

If Higgs’s smart card is so great, you might ask, why hasn’t it been adopted? Why haven’t I heard of it? Why doesn’t it circulate widely? Why aren’t hospitals jumping at the opportunity to use it?

The answer, according to Higgs, is simple: the healthcare industry doesn’t want you to know about his smart card because it doesn’t want to reduce costs. It’s full of people getting rich off inefficiency and artificially high prices. Lobbyists for the healthcare industry have taken advantage of the fear and apathy of politicians to ensure that technological progress is delayed or stymied.

Thus, Higgs describes his job in terms of David versus Goliath.

There are numerous ideas about how to trim healthcare spending; Higgs’s smart card is not the exclusive remedy or sole fix. But it’s an encouraging development. Healthcare spending makes up about 17.8% of the nation’s economy, according to an actuary report by the Centers for Medicare and Medicaid Services. And it shows no signs of decreasing. This trend is unsustainable; something must be done—and undone.

We could use more men like Higgs and less government to push us in the right direction before it’s too late.

 

 

 

Review of Brent J. Aucoin’s “Thomas Goode Jones: Race, Politics & Justice in the New South” (University of Alabama Press, 2016)

In America, American History, Arts & Letters, Book Reviews, Books, History, Humanities, Law, liberal arts, Politics, Scholarship, Southern History, The South on August 2, 2017 at 6:45 am

This review originally appeared in the Spring 2017 issue of the Journal of Faith and the Academy.

Brent J. Aucoin’s new biography is a probing treatment of the neglected figure of Thomas Goode Jones. To some, Jones is discredited because of his ownership of slaves and military leadership in the Confederate Army; to others, he’s a wounded war hero, distinguished jurist, and revered governor who sought reconciliation with former slaves. The truth, as always, is more complex.

Jones does not fit neatly into simplistic categories; he defies the trite labels of current political vocabulary. He even cut across partisan divides in his own day. His story is not a crude morality tale, nor does it contain clear lessons for posterity. Aucoin calls Jones “enigmatic.”  He seeks to consider Jones “holistically.” His studied reflection on Jones reveals a complicated man who’s both congenial and flawed, ahead of his time and yet a definite product of it.

Born in precarious circumstances in what today is Macon, Georgia, Jones had family roots in Virginia. His father, Samuel Goode Jones, worked for the railroad and moved the family from place to place, trying to earn an honest living. They settled in Montgomery when Samuel took a job there as an engineer. Thomas Jones was five at the time.  He and his family attended St. John’s Episcopal Church, downtown, where the pew in which Jefferson Davis worshipped remains intact, the other rows of pews having been replaced long ago.

A romantic childhood it was not. Jones was sent to Virginia to study at academies that fed into the Virginia Military Institute (VMI). He was groomed to be a soldier. By the time he enrolled at VMI, the Civil War had broken out, and he joined the ranks of his professor, Major General Thomas J. Jackson. Jones transferred units and worked his way up the chain of command, barely avoiding death on more than one occasion. Legend has it that, while riding horseback, he saved a wandering child during the heat of battle. This and other tales of heroism earned Jones the reputation as a valiant warrior. General Robert E. Lee himself selected Jones, among others, to deliver the flag of surrender to General Ulysses S. Grant at Appomattox Courthouse.

After the War, Jones returned to Alabama to begin a new career, or careers.  He married, sired 13 children, and enjoyed a rapid rise to fame and distinction, first as an editor of The Daily Picayune and later as a speaker, lawyer, and Democratic politician.  Believing it was God’s will for the South to fully reintegrate into the Union, he championed reunification, receiving honors and awards for his efforts to this end.  His celebrated 1874 Memorial Day Address was a reconciliatory precursor to that of Oliver Wendell Holmes Jr. a decade later.

Jones is known, in our day, mostly as a legislator, judge, and governor—and indeed the bulk of Aucoin’s book is dedicated to these periods of Jones’s life. Aucoin pays close attention to Jones’s often contradictory, always multifaceted, and sometimes disturbing views on race and race relations. Following Booker T. Washington, Aucoin says, “Jones eschewed the idea of a political solution to the so-called Negro problem—namely, the passage and enforcement of civil rights legislation—but also . . . opposed the political effort to disenfranchise blacks.”

Jones supported segregation of the races under a separate-but-equal scheme, yet he backed the creation of Alabama State University, a black college founded in 1867. He advocated the education of blacks to varying degrees, but his rhetoric on this topic can sound paternalistic and hollow to the modern ear. That he opposed educational prerequisites to voting, however, suggests he was willing to risk clout and status to take an unpopular stand on behalf of former slaves. He also, quite controversially at the time, sought to abolish the exploitative convict leasing system that carried with it the residual features of slavery.

Aucoin describes Jones’s politicking in great detail, from probable election fraud to campaigns for higher taxes. As governor, Jones decried the mob violence that had become common in Alabama. Later, as a judge, he attempted to charge a lynch mob under federal law.

Jones’s popularity waxed and waned. An economic crisis befell the state during his governorship, and workers from different industries began to strike. This once gallant soldier grew tired and frustrated and lost much of his charisma.  During one ceremony as governor, suffering from “cholera morbus,” he fell from his horse as he tried to dismount. Word of this clumsy incident spread quickly, and Jones was humiliated.

Yet he always drew admirers. His work on race relations, if not always courageous, was at least a step in the right direction. When he died, an unexpected number of blacks attended his funeral, watching solemnly. “Jones may not have been a hero,” Aucoin submits, “or someone on the good side who was unfaltering in his fight against evil, but there appears to be cause for concluding that he distinguished himself from the more rabid racist leaders of the South.”

The institution I work at bears the name of this curious man, whose bust is displayed prominently at the top of the stairs of the entry rotunda, looking down on the busy law faculty and students who come and go without the slightest concern for, or even knowledge of, his life. I’ve placed my copy of Aucoin’s biography beneath that bust with a short note: “Free copy. Learn about a fascinating person.”

It seemed like the right thing to do.

The Circuitous Path of Papa and Ezra

In Arts & Letters, Essays, History, Humanities, liberal arts, Literary Theory & Criticism, Literature, Modernism, Politics, Western Civilization, Writing on May 24, 2017 at 6:45 am

This review originally appeared here in The American Conservative.

Ernest Hemingway, fresh off his marriage to Hadley Richardson, his first wife, arrived in Paris in 1921. Paris was a playground for writers and artists, offering respite from the radical politics spreading across Europe. Sherwood Anderson supplied Hemingway with a letter of introduction to Ezra Pound. The two litterateurs met at Sylvia Beach’s bookshop and struck up a friendship that would shape the world of letters.

They frolicked the streets of Paris as bohemians, joined by rambunctious and disillusioned painters, aesthetes, druggies, and drinkers. They smoked opium, inhabited salons, and delighted in casual soirées, fine champagnes, expensive caviars, and robust conversations about art, literature, and the avant-garde. Pound was, through 1923, exuberant, having fallen for Olga Rudge, his soon-to-be mistress, a young concert violinist with firm breasts, shapely curves, midnight hair, and long eyebrows and eyelashes. She exuded a kind of mystical sensuality unique among eccentric highbrow musicians; Pound found her irresistible.

Pound was known for his loyalty to friends. Although he had many companions besides Hemingway—among them William Butler Yeats, James Joyce, T.S. Eliot, Marianne Moore, Robert McAlmon, Gertrude Stein, e.e. cummings, Pablo Picasso, Wyndham Lewis, T.E. Hulme, William Carlos Williams, Walter Morse Rummel, Ford Madox Ford, Jean Cocteau, and Malcolm Cowley—Hemingway arguably did more than the others to reciprocate Pound’s favors, at least during the Paris years when he promoted Pound as Pound promoted others.

Pound was aware of Hemingway’s talent for publicity: he and Hemingway had combined their genius to promote Eliot’s The Waste Land. Hemingway introduced Pound to William Bird, an American reporter who arranged to publish an autobiographical piece about Pound’s childhood. Bird was instrumental to the eventual publication of Pound’s A Draft of XVI Cantos. Pound, for his part, secured for Hemingway a position as assistant editor of The Transatlantic Review. Their relationship matured into something symbiotic and mutually beneficial.

Pound edited Hemingway’s work, stripping his prose of excessive adjectives. Hemingway remarked that Pound had taught him “to distrust adjectives as I would later learn to distrust certain people in certain situations.” Unlike, say, Conrad Aiken or Robert Frost, who resisted Pound’s editing, Hemingway acquiesced to Pound’s revisions. In exchange, Hemingway taught Pound how to box. He acknowledged that the scraggly Pound had “developed a terrific wallop” and had “come along to beat the hell wit the gloves.” Hemingway worried that “I will get careless and [Pound] will knock me for a row of latrines.” He even treated Pound to a night at the prizefights to brighten Pound’s spirits as Pound battled various illnesses.

Pound, however, grew disillusioned with Paris, where his friends were gravitating toward socialism and communism. Paris, he decided, was not good for his waning health. Hemingway himself had been in and out of Paris, settling for a short time in Toronto. In 1923, accompanied by their wives, Pound and Hemingway undertook a walking tour of Italy. The fond memories of this rejuvenating getaway inspired Pound to return to Italy with his wife Dorothy Shakespear in 1924. They relocated, in 1925, to a picturesque hotel in Rapallo, a beautiful sea town in the province of Genoa, on the bright blue Tigullio Gulf.

Pound found the weather in Rapallo to be soothing and agreeable. It was Hemingway who had first recommended this scenic spot, having visited Sir Max Beerbohm there years before. Hemingway’s tales of the sunshine, swimming, tennis, and other outdoor activity in Rapallo appealed to Pound, who fancied himself an athlete. The fact that his mistress Olga frequented Italy—where her father owned a house—made Rapallo all the more desirable, as did Dorothy’s seeming willingness to share her husband with his lover.

The friendship remained intact as Pound settled into Rapallo. About to vacate Europe for Key West, Hemingway dashed off a missive to Pound that began “Dear Duce” and then boasted about how Papa, as people had begun to call Hemingway, was “going to know everything about fucking and fighting and eating and drinking and begging and stealing and living and dying.” Gradually, though, the Pound-Papa gulf widened.

The move to Italy also effectively terminated Pound’s glory years in Paris, about which Hemingway wrote affectionately:

So far we have Pound the major poet devoting, say, one fifth of his time to poetry. With the rest of his time he tries to advance the fortunes, both material and artistic, of his friends. He defends them when they are attacked, he gets them into magazines and out of jail. He loans them money. He sells their pictures. He arranges concerts for them. He writes articles about them. He introduces them to wealthy women. He gets publishers to take their books. He sits up all night with them when they claim to be dying and he witnesses their wills. He advances them hospital expenses and persuades them from suicide. And in the end a few of them refrain from knifing him at the first opportunity.

This last line is both teasing and fitting because there was, in fact, at least one assailant in Paris who didn’t refrain: a man who attempted to stab Pound at a dinner party hosted by the surrealists.

Hemingway guessed that Pound might stay in Italy “sometime” even if he took “no interest in Italian politics.” Hemingway was right about Pound’s love for Rapallo but wrong about his political affinities. More than anything else, Italian politics—and the rise of fascism—damaged Hemingway’s regard for Pound, who became a zealous supporter of Mussolini and a reckless trafficker in conspiracy theories.

Hemingway grumbled that if Pound “actually and honest to God … admire[d] and respect[ed] … [Mussolini] and his works [then] all I can say is SHIT.” Hemingway, true to character, remained manfully playful, stating, “I will take practical steps by denouncing you here in Paris as a dangerous anti-fascist and we can amuse one another by counting the hours before you get beaten up in spite of your probity—which in such a fine country as it must be would undoubtedly save you.” Such slight criticisms may have been colored with a lighthearted tone, but the disapproval was plain.

When Hemingway and Guy Hickock visited Pound in northern Italy in 1927, Pound was living in self-imposed exile. Hemingway had recently converted to Catholicism and was enjoying renewed fame after the publication of The Sun Also Rises. He divorced and remarried that year, offering Hadley a portion of the profit from The Sun Also Rises as part of their divorce. Pound, meanwhile, was immersing himself in political theories that likely baffled Hemingway as much as they angered him.

Shortly after the stock-market crash in 1929 and the onset of a worldwide economic crisis, Pound took to writing in Italian. Mussolini’s March on Rome had occurred seven years earlier, and since then he had assumed dictatorial control of Italy, suppressed opposition parties, and built a police state. Pound was enthralled. He met Mussolini in 1933, peddling strange monetary schemes to the fascist leader.

In 1933 Pound and Hemingway exchanged letters that highlighted their diverging attitudes toward Mussolini, fascism, and government. Pound, who’d embraced wild and polemical speculations about the economic theories of the American Founders—Jefferson in particular—began to decry capitalism and taxation while celebrating fiat currency and a convoluted system of state central planning. “Since when are you an economist, pal?” Hemingway mocked. “The last I knew you you were a fuckin’ bassoon player.” Hemingway offered Pound some money, sensing that money was needed, but Pound declined it.

Pound was now enamored with Il Duce; Hemingway was furious. Hemingway hated government, he told Pound, and preferred organized anarchism and masculine sport to statist ideology. Hemingway saw through Pound’s charlatanic flourishes and economic fallacies and accused Pound, quite rightly, of lacking clarity. Yet Pound’s admiration for Hemingway’s work did not diminish, and Pound, ever devoted, included Hemingway in an anthology that he was then editing.

Possibly the last time Pound and Hemingway saw each other, they were having dinner with Joyce on a warm summer night in Paris. Pound allegedly bloviated about economics and the decline of art and European civilization, and Hemingway and Joyce feared that Pound had gone mad. The date and details of the dinner are a matter of debate, as is the veracity of any account of that evening. But one thing is certain: Hemingway was frustrated with Pound’s embrace of Italian fascism. By the time Pound voiced support for Franco in the Spanish Civil War, putting him once again at odds with Hemingway, their once thriving friendship had deteriorated beyond repair.

The falling out was no secret, and other writers took sides. William Carlos Williams wrote to Pound in 1938, saying, “It is you, not Hemingway, in this case who is playing directly into the hands of the International Bankers.” Hemingway conveyed his concerns about Pound to their friend Archibald MacLeish:

Thanks for sending the stats of Ezra’s rantings. He is obviously crazy. I think you might prove he was crazy as far back as the latter Cantos. He deserves punishment and disgrace but what he really deserves most is ridicule. He should not be hanged and he should not be made a martyr of. He has a long history of generosity and unselfish aid to other artists and he is one of the greatest living poets. It is impossible to believe that anyone in his right mind could utter the vile, absolutely idiotic drivel he has broadcast. His friends who knew him and who watched the warpeing [sic] and twisting and decay of his mind and his judgement [sic] should defend him and explain him on that basis. It will be a completely unpopular but an absolutely necessary thing to do. I have had no correspondence with him for ten years and the last time I saw him was in 1933 when Joyce asked me to come to make it easier haveing [sic] Ezra at his house. Ezra was moderately whacky then. The broadcasts are absolutely balmy. I wish we could talk the whole damned thing over. But you can count on me for anything an honest man should do.

Hemingway was referring to Pound’s notoriety as a propagandist for radio and newspaper during the Second World War.  When he received transcripts of Pound’s radio broadcasts, he surmised that Pound was “obviously crazy” for espousing such “vile, absolutely idiotic drivel.” Pound was a “crazy … and harmless traitor,” Hemingway concluded, and an “idiot” with a “distracted mind” who “ought to go to the loony bin.” And that’s precisely where Pound ended up: He was admitted to St. Elizabeth’s Hospital in Washington, DC, in 1945.

Pound’s friends put their reputations at stake to help him. MacLeish, expressing both love and admonition, dashed off these words in a missive to Pound:

… your information is all second-hand and distorted. You saw nothing with your own eyes. And what you did see—Fascism and Nazism—you didn’t understand: you thought Musso belonged in Jefferson’s tradition and God knows where you thought Hitler belonged. I think your views of the history of our time are just about as wrong as views can be. But I won’t sit by and see you held in confinement because of your views. Which is what is really happening now. I am doing what I am doing partly because I revere you as a poet and partly because I love this Republic and can’t be quiet when it violates its own convictions.

MacLeish helped to orchestrate Pound’s release from St. Elizabeth’s, drafting a letter to the government on Pound’s behalf that included Hemingway’s signature, along with those of Robert Frost and T.S. Eliot. A year later Hemingway provided a statement of support for Pound to be used in a court hearing regarding the dismissal of an indictment against Pound.

Hemingway, who was now living in Cuba, did little else to help Pound. More for practical reasons than personal conviction, Hemingway, who was himself targeted by the American government, refused to sign a petition of amnesty for Pound. The petition had been Olga’s idea, and Hemingway didn’t believe the American people would rally behind the desperate pleas of an adulterous lover. Hemingway never visited Pound at St. Elizabeth’s, but he did tell Pound, via Dorothy, that he had read and enjoyed The Pisan Cantos. And when he won the Nobel Prize in 1954, Hemingway announced that the year was good for releasing poets, a not-so-slight reference to his old friend.

Hemingway awoke on the morning of July 2, 1961, put a 12-gauge, double-barreled shotgun to his head, and, alone in the foyer of his home, blew his brains out. He was 61. Pound’s friends and family didn’t tell him about Hemingway’s death, but a careless nurse did, and Pound reacted hysterically. The older of the two, Pound, at 72, was free from St. Elizabeth’s, where he’d spent 12 solemn years. He had returned to his beloved Italy to finish out his long and full life. In the autumn of 1972, he died peacefully in his sleep in Venice, the day after his birthday, which he’d spent in the company of friends.

Civics Education and the Blackstone & Burke Center for Law & Liberty

In Academia, Civics, Conservatism, Humanities, Law, Law School, Legal Education & Pedagogy, liberal arts, Libertarianism, News and Current Events, Pedagogy, Philosophy, Politics, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on April 26, 2017 at 10:49 am

A version of this piece will appear in Faulkner Magazine. 

Our country has suffered a decline in civic literacy.  From 2006 until 2011, the Intercollegiate Studies Institute (ISI) conducted annual studies that evaluated the civic literacy of students and citizens.

The results were discouraging. Most Americans were unable to pass a basic test consisting of straightforward, multiple-choice questions about American heritage, government, and law. One of the ISI studies suggested that students knew more about civics before they began college than they did after they graduated college.

It’s not just students and ordinary citizens displaying civic ignorance. Our political leaders have demonstrated that they lack the understanding of law and government befitting their high office.

Judge Arenda Wright Allen of the U.S. District Court for the Eastern District of Virginia recently began an opinion by stating that the Constitution declared that “‘all men’ are created equal.” This line appears in the Declaration of Independence, not the Constitution.

Senator Chuck Schumer told CNN that the three branches of government were the House, the Senate, and the President. He not only failed to mention the judicial branch, but also treated the bicameral legislature in which he serves as if it were bifurcated into separate branches of government.

Congressman Sheila Jackson Lee, while criticizing the alleged unconstitutionality of proposed legislation, claimed that the Constitution was 400 years old.

These anecdotes suffice to show the extent to which Americans no longer respect their founding principles or the framework of government established in our Constitution.

That is why the Blackstone & Burke Center for Law & Liberty was founded at Thomas Goode Jones School of Law. We seek to promote the principles of the common-law tradition and American constitutionalism so that the next generation of civic leaders will make informed, thoughtful decisions about the future of our country.

Ordered liberty in the United States has rested on a commitment to religious faith and pluralism, fidelity to the rule of law, and ancient liberties grounded in the conviction that all humans are created equal and endowed by their Creator with certain inalienable rights. These values characterize the American experiment. Our society is built upon them, and its continued vitality depends upon maintaining and promoting our commitment to them.

Therefore, the Blackstone & Burke Center will educate students, teachers, judges, and political leaders in the areas of religious freedom, freedom of association, freedom of speech, and economic freedom. We will coordinate educational programs, research initiatives, and judicial conferences that examine the norms and nurture the institutions of ordered liberty.

We believe that the principles and ideas of the American Founding are worth conserving and celebrating. Our vision is to help renew an America where freedom, opportunity, prosperity, and civil society flourish.

The Blackstone & Burke Center has recruited of board of advisers consisting of internationally recognized thought-leaders such as Judge Andrew Napolitano, Senior Legal Analyst for Fox News; Dr. Robert P. George, McCormick Chair in Jurisprudence at Princeton University; Dr. James R. Stoner, Hermann Moyse Jr. Professor and Director of the Eric Voegelin Institute for American Renaissance Studies at Louisiana State University; Professor F. H. Buckley, George Mason University Foundation Professor at Antonin Scalia Law School; Dr. Don Devine, former Director of the U.S. Office of Personnel Management in the Reagan Administration and Senior Scholar at the Fund for American Studies; Dr. Ingrid Gregg, past president of the Earhart Foundation; and Dr. Daniel Mark, Vice Chairman of the U.S. Commission on International Religious Freedom and Professor at Villanova University.

In our first few months of operation, we organized and hosted a reception featuring a Library of Congress traveling Magna Cart exhibit, which was displayed in the rotunda of the Alabama Supreme Court for three weeks.  Judges, business and university leaders, lawyers, students, teachers, and the general public attended the reception to commemorate and learn about Magna Carta, and Acting Chief Justice Lyn Stuart of the Alabama Supreme Court and Judge William “Bill” Pryor of the Eleventh Circuit Court of Appeals delivered remarks about Magna Carta.

The Blackstone & Burke Center received a grant from Liberty Fund, Inc., to gift the entire Liberty Fund book and media catalog to the law library, as well as a grant from the Association for the Study of Free Institutions to bring a prominent speaker to our campus next fall.

The Blackstone & Burke Center also established a formal affiliation with Atlas Network and, through Atlas Network, partnerships with such organizations as the Acton Institute, American Enterprise Institute, American Legislative Exchange Council, Becket Fund for Religious Liberty, Cato Institute, Center for Competitive Politics, Claremont Institute, the Federalist Society, the Foundation for Economic Education, the Foundation for Individual Rights in Education, Freedom Foundation, the Goldwater Institute, the Heritage Foundation, the Hoover Institution, the Hudson Institute, the Independent Institute, Institute for Justice, Intercollegiate Studies Institute, the Law & Economics Center at George Mason University, Liberty Fund, Mackinac Center for Public Policy, Mont Pelerin Society, National Review Institute, Pacific Legal Foundation, the Philadelphia Society, the Pope Center for Higher Education Policy, Reason Foundation, State Policy Network, Students for Liberty, the Fund for American Studies, Young Americans for Liberty, and more.

Finally, the Blackstone & Burke Center received a grant from the Charles Koch Foundation under the auspices of the Philadelphia Society to direct a professional development conference on academic freedom at a meeting of the Philadelphia Society in Pennsylvania. Attendees included graduate students and university administrators from across the country who shared an abiding interest in the meaning, purpose, and characteristics of intellectual exchange in university settings.

We at the Blackstone & Burke Center look forward to a promising future as we inspire and educate new leaders in the principles and foundations of ordered liberty. To learn more about the Blackstone & Burke Center, visit our website at www.blackstone&burke.com.

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