Category: History

The Alternative to Nullification

In an earlier post I whimsically advanced the idea that States might nullify blatantly unconstitutional laws created through the legislative process or by judicial fiat. Andrew Jackson — to whom I usually wouldn’t defer in matters constitutional — responded to the Nullification Crisis by issuing a proclamation, in which he said:

…The ordinance [of nullification approved by South Carolina] is founded, not on the indefeasible right of resisting acts which are plainly unconstitutional, and too oppressive to be endured, but on the strange position that any one State may not only declare an act of Congress void, but prohibit its execution – that they may do this consistently with the Constitution-that the true construction of that instrument permits a State to retain its place in the Union, and yet be bound by no other of its laws than those it may choose to consider as constitutional. It is true they add, that to justify this abrogation of a law, it must be palpably contrary to the Constitution, but it is evident, that to give the right of resisting laws of that description, coupled with the uncontrolled right to decide what laws deserve that character, is to give the power of resisting all laws. For, as by the theory, there is no appeal, the reasons alleged by the State, good or bad, must prevail….But reasoning on this subject is superfluous, when [the U.S. Constitution] in express terms declares, that the laws of the United States…are the supreme law of the land; and for greater caution adds, “that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” And it may be asserted, without fear of refutation, that no federative government could exist without a similar provision….

I must concede that Jackson (or his lawyers) made an effective case against nullification.

Now, where does that leave us? It leaves us with the hope (or fear, if you are of the left) that the U.S. Supreme Court — when “packed” with two or three newcomers appointed by Bush — will redouble its efforts to restore something resembling the federalism envisioned by the Framers. In the words of Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Jill the Ripper?

I’ve never been a “Ripper” fanatic. The case of Jack the Ripper is just another insoluble historical who-done-it as far as I’m concerned — on a par with the Princes in the Tower and the assassination of JFK. But I found it fascinating to learn that several somehat-prominent figures have been suspected of the Whitechapel Murders. Here, from Casebook, is a gallery of suspects:

I had heard about the candidacy of Prince Albert Victor (a grandson of Queen Victoria and a great-great uncle of the present Queen Elizabeth), and about the Royal conspiracy. Patricia Cornwell has touted actor-artist Walter Sickert as the Ripper in her book, Portrait of a Killer: Jack the Ripper – Case Closed. But Lewis Carroll, James Kenneth Stephen, and Francis Thompson — writers of more or less renown — are news to me.

My money’s on Mary Pearcey (Jill the Ripper). Follow the links and draw your own conclusions.

(Thanks to Oxblog for the pointer to Casebook.)

Is Nullification the Answer to Judicial Supremacy?

I have written often — and reluctantly — that the words and logic of the Constitution give the judicial branch the last word in the making of law. (See here, here, here, and here.) But, thanks to a post by William Watkins at Southern Appeal, I found a blurb for The Politically Incorrect Guide to American History, by Thomas E. Woods Jr., which includes this passage:

[The book’s] treatment of the early republic recalls parts of American history that have vanished into the memory hole, including the crucially important Virginia and Kentucky Resolutions of 1798 and Thomas Jefferson’s belief that only state nullification of unconstitutional federal legislation, rather than “checks and balances” among the branches of the federal government itself, had a chance of keeping the federal government in check.

Here, from Houghton Mifflin’s “The Reader’s Companion to American History,” is a bit more about the Resolutions:

The Virginia and Kentucky Resolutions of 1798 and 1799 raised the question of states rights’ and nullification. They were drafted in response to the passage of the Alien and Sedition Acts of 1798 but were concerned with a larger and more deep-rooted problem. How was power to be divided between the federal government and the states, and who was to settle disputes between the two?

The first Kentucky Resolution, passed by the state legislature on November 16, 1798, stated that when the federal government exercised power not specifically delegated to it by the Constitution, each state could judge the validity of that action for itself. The Virginia Resolution of December 24, 1798, claimed that the states “have the right and are in duty bound to interpose for arresting the progress of the evil.” Several northern states objected that the judiciary, not the states, should be the arbiter of constitutionality. The Kentucky legislature passed a second Resolution on November 22, 1799, arguing that a single state had the power to nullify a federal action it deemed unconstitutional.

Unknown to contemporaries, the Virginia and Kentucky Resolutions were drafted, respectively, by James Madison and Thomas Jefferson. The doctrines they enunciated were later cited by southern slaveholders in support of their right to secede from the Union. Yet it would be a mistake to conclude that either Jefferson or Madison truly wanted to dismantle the Union. The Resolutions are best understood in the context of the fierce political battles between Federalists and Jeffersonians in the 1790s and the prevailing theory of divided sovereignty. When John C. Calhoun evoked the Resolutions in the 1820s to support his own doctrine of nullification, he was solidly opposed by James Madison.

Nevertheless, considering the authorship of the Resolutions, there may be something to the concept of nullification as a response to blatantly unconstitutional lawmaking, whether it arises from unchecked congressional overstepping of its enumerated powers or judicial fiat. Consider these passages from Madison’s Virginia Resolution:

RESOLVED, That the General Assembly of Virginia, doth unequivocably express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.

That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it’s existence and the public happiness.

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them….

That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people….

And these passages from Jefferson’s second Kentucky Resolution:

THE representatives of the good people of this commonwealth in general assembly convened, having maturely considered the answers of sundry states in the Union, to their resolutions passed at the last session, respecting certain unconstitutional laws of Congress, commonly called the alien and sedition laws, would be faithless indeed to themselves, and to those they represent, were they silently to acquiesce in principles and doctrines attempted to be maintained in all those answers, that of Virginia only excepted….

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy:…That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact….

“That the several states who formed [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.” I love it.

More to come.

A Day to Remember

Tomorrow will bring a spate (but not a tidal wave) of reminiscences about the death of John F. Kennedy, 41 years earlier. I still remember precisely where I was when I heard that JFK had been shot, then later when I heard that he had died.

I was devastated by the assassination, for I had come to believe in the Kennedy mystique, even though I had, three years earlier (and a bit too young to vote), favored Nixon over Kennedy because I associated the Democrat Party with such evils as legal segregation, high taxes, and corrupt unionism. (How little has changed in 44 years.)

The pomp and mourning that ensued the assassination seemed, somehow, to validate my idealistic belief in the power of government to do good, and the right of government to use that power. I then fell prey to the hysteria that Barry Goldwater’s candidacy invoked, in those days of genuine fear of a nuclear holocaust and naive idealism about ending racial separation legally. It took riots in big cities, the debacle in Vietnam, and Watergate to overcome my emotional attachment to the prevailing faith that government is all-knowing, all-wise, and beneficent.

Yes, November 22, 1963, and the days that followed are seared in my memory. But they now remind me of the folly of allowing emotion to govern reason.

Making History

And I thought it was all about lying under oath in a federal case about sexual harassment:

Clinton Library Exhibits Include Scandals

By DAVID HAMMER, Associated Press Writer

LITTLE ROCK, Ark. – Bill Clinton (news – web sites)’s presidential library, opening Thursday, covers Whitewater and Monica Lewinsky in a single display that portrays the White House scandals as a “fight for power” and an exercise in the “politics of persecution.”

“We had to show this was a systematic attempt by Republican leaders to de-legitimize Bill Clinton and the administration,” said former Clinton adviser Bruce Lindsey, who worked with the ex-president through much of the exhibit-design process.

Do you suppose Karl Rove planted Paula Jones and Monica Lewinsky — and let nature take its course?

Re-Fighting the Civil War

In “Still More Trouble for the Lincoln Cartel,” Thomas J. DiLorenzo reviews Born Fighting: How the Scots-Irish Shaped America, by former U.S. Navy Secretary James Webb; and The Fate of Their Country: Politicians, Slavery Extension, and the Coming of the Civil War, by University of Virginia historian Michael F. Holt. DiLorenzo’s review amounts to another salvo at what he calls the “Lincoln Cartel”:

In my [DiLorenzo’s] LRC [LewRockwell.com] article, “More Trouble for the Lincoln Cartel,” I noted how such court historians as James McPherson, and court semanticists like Harry Jaffa, have fabricated an “Official History” of the War to Prevent Southern Independence that is often sharply at odds with historical reality. These self-appointed gatekeepers of America’s Official State History do all they can to censor competing views within academe, but their influence is rapidly waning because of the fact that competing views are now widely published on the Internet, and by commercial and “think tank” publishers.

DiLorenzo prefers socio-psychological explanations and conspiracy theories to a straightforward accounting for the Civil War. Thus, writing about Webb’s book, he says:

So why did the Confederate soldier fight? Because “he was provoked, intimidated, and ultimately invaded” and “his leaders convinced him that this was a war of independence in the same sense as the Revolutionary War” (p. 225). The “tendency to resist outside regression” was “bred deeply into every heart” of the Scots-Irish, and had been for centuries. That’s why they had to fight.

Bravo. But why was the Confederate soldier “provoked, intimidated, and ultimately invaded”? Aha, here it is in DiLorenzo’s comments about Holt’s book:

The North was driven by an agenda that would legally plunder the South. They were pure plunder seekers. The South, on the other hand, was comprised of plunder avoiders. They fought for years in the political trenches to avoid being the victims of the northern political plunderers, whose population was more than double that of the South, implying an inevitable Northern domination in the halls of Congress. As Professor Holt demonstrates, slavery extension was one big smokescreen or “chimera” that clouded the real issues at stake in the period leading up to the war.

I sent my son a link to DiLorenzo’s review. We then had the following exchange:

Son: I don’t think either of us are die hard Confederates, are we? I guess my take on it is: interesting historical revisionism, but I’m not going to try to re-fight the Civil War.

Me: I might prefer more power in the hands of the States, but not at the cost of slavery. It strikes me as one more attempt to throw the Civil War into a new light. Kind of clever, but not compelling. Such theories fail Occam’s test, which tells me that the proximate cause of the war was slavery, and Lincoln was determined to keep the Union whole. Yes, there were a lot of subplots, but that’s the main plot.

Son [referring to the early election returns]: Maybe we don’t need to refight the Civil War, but can we let Canada annex the Northeast?

I’d go along with that, but my Canadian friends who are Red Ensign bloggers probably don’t want to bring more socialist-leaning provinces into the Dominion.

The Republican Era Continues

Bush wins decisively and the GOP strengthens it hold on the House and Senate. The Republican era continues. As I wrote almost two months ago:

…[T]he fact is that we’re in a Republican era that began as long ago as 1968, when Nixon beat Humphrey, even though Wallace took a lot of votes that probably would have gone to Nixon. (Don’t start on that racist crap, again, there’s a lot more to the South than race — and always has been.) Republicans have held the White House ever since, except for Carter’s term, which he owed to Nixon’s disgrace, and Clinton’s two terms, which he owed to Perot’s candidacy. Moreover, Republicans began to claw their way back into congressional power in the 1980s, when they held the Senate for several years. They regained full control of Congress in the election of 1994 — ten whole years ago.

So, it seems that Democrats are suffering from a bizarre form of near-term memory loss. They remember 1933-1969, when they held the White House for all but Ike’s two terms. (And what kind of Republican was Ike, anyway?) They mistakenly thought their White House hegemony had been restored with Clinton’s ascendancy, but Clinton was really an accidental president. Democrats vividly remember having controlled both houses of Congress for most of the 62 years from 1933 to 1995, and they keep deluding themselves that they will retake Congress in the “next” election….

As long as the Democrat Party remains the Eeyore Party — or, as my son suggests, the Death (pro-abortion) and Taxes Party — it will remain the minority party.

Remembering Paul Nitze

Paul Nitze died on October 19 at the age of 97. Most readers are probably stumped by the name. Here’s a bit of his bio, from Wikipedia:

Paul Henry Nitze (January 16, 1907 – October 19, 2004) was a high-ranking United States government official who helped shape Cold War defense policy over the course of numerous presidential administrations.

Born in Amherst, Massachusetts, Nitze attended the Hotchkiss School graduated from Harvard University in 1928. After working in investment banking, he enter government service during World War II. In 1942, he was chief of the Metals and Minerals Branch of the Board of Economic Warfare, until named director, Foreign Procurement and Development Branch of the Foreign Economic Administration in 1943. During the period 1944-1946, Nitze served as director and then as vice chairman of the U.S. Strategic Bombing Survey….

In the early post-war era, he served in the Truman Administration as head of policy planning for the State Dept (1950-1953). He was also principal author in 1950 of a highly influential secret National Security Council document (NSC-68), which provided the strategic outline for increased U.S. expenditures to counter the perceived threat of Soviet armament.

…In 1961 President Kennedy appointed Nitze assistant secretary of Defense for International Security Affairs and in 1963 he became the Secretary of the Navy, serving until 1967.

Following his term as secretary of the Navy, he served as deputy secretary of Defense (1967-1969), as a member of the U.S. delegation to the Strategic Arms Limitation Talks (SALT) (1969-1973), and assistant secretary of Defense for International Affairs (1973-1976). Later, fearing Soviet rearmament, he opposed the ratification of SALT II (1979). He was President Ronald Reagan’s chief negotiator of the Intermediate-Range Nuclear Forces Treaty (1981-1984). In 1984, Nitze was named special advisor to the president and secretary of State on Arms Control. For more than forty years, Nitze was one of the chief architects of U.S. policy toward the Soviet Union. President Reagan awarded Nitze the Presidential Medal of Freedom in 1985 for his contributions to the freedom and security of the United States….

I met Nitze in 1965 when, in his tenure as Secretary of the Navy, he was gracious to a young analyst (me) whom the Commandant of the Marine Corps had called upon to make a dubious case for sending more Marines to Vietnam.

Nitze later served as a trustee of the defense think-tank where I was chief financial and administrative officer. He spoke seldom, but when he did he cut to the heart of the matter.

Nitze was a rare “public servant” who truly served his country. He was hard-nosed, non-partisan, and brilliant.

Thinking Back

Since I’ve been on a nostalgia jag, which autumn always evokes in me, I’ve been musing about technologies that have become prevalent in my lifetime. Here are the things I like most and least (in no particular order):

Most–

Transistors

Pocket calculators

Tubeless tires

Computer languages

Personal computers and their accoutrements

Ethernet, Internet, and WWW

Hypertext

Search engines

Japanese automobiles

High-fidelity stereophonic sound systems

Video replay systems (VCRs and DVD players)

FM radio

Voice messaging

E-mail

Online banking

UPC (bar codes) and all that flows from them

Smart weapons (owned by the U.S.)

Satellite surveillance systems (owned by the U.S.)

Every “wonder” drug since penicillin

Almost every medical technology since x-rays

Fiberoptics, nanotechnology, and all those other neat ways of communicating, seeing, and manipulating things

Velcro

Nuclear power

Post-it notes

ATMs

Least–

TV (except as a medium for playing videotapes and DVDs)

Public radio & TV

Cell phones

SUVs

Electronic musical instruments

Autodialers

Canned music

Digital special effects

Spam

Tracking cookies

Computer viruses

Truck and car bombs

(Thanks to “Twentieth Century Inventions” at About for many of the items on these lists.)

And here, of everything that has become rare if not extinct since my birth, are the things I miss the most:

Weekly radio shows (e.g., Jack Benny, Our Miss Brooks, The Great Gildersleeve, Burns & Allen)

Movie musicals whose stars were truly talented (e.g., Allan Jones, Kathryn Grayson, Fred Astaire & Ginger Rogers)

The corner store (not a 7-11 or its ilk)

Mom & pop bakeries with fresh bread and pastries

Tranquil villages with well-kept homes and stable businesses that were “real” places and not tourist attractions

Tree-lined streets with sidewalks, laid out in a rectangular grid

Neighborhoods

Main street

People who whistled while they worked

Absolute victory.

Reassessing the Man from Ohio

Two new books are refurbishing U.S. Grant’s reputation, according to a review by Jonathan Yardley in The Washington Post. The books are Ulysses S. Grant, by Josiah Bunting III, and Ulysses S. Grant: The Unlikely Hero, by Michael Korda. Yardley quotes Bunting on Grant:

He was hugely but modestly self-reliant; he was accustomed to making do with what he was given, without asking for more; he defined himself in action, not talk; he was dutiful, intensely loyal to superiors and friends, brave in the way that Tacitus called Agricola brave: unconsciously so.

And Korda:

Grant had that rare quality among professional soldiers, even at the very beginning of his career, of feeling deeply for the wounded and dead of both sides. It was not weakness — it was that he spared himself nothing. Grant saw what happened in war, swallowed his revulsion, pity and disgust, and went on.

A general for all seasons.

Yardley reminds us that Grant’s heroism extended beyond the battlefield:

The end of Grant’s life was both sad and noble. An investment firm to which he had foolishly committed such fortune as he had was undone by its founder’s dishonesty, and Grant was bankrupt. At about the same time he learned that he had terminal throat cancer. Desperate to assure [his wife] Julia’s financial security after his death, he overcame his qualms and agreed to write his memoirs. He completed them barely hours before his death, his final bequest to the country he had served so nobly: a literary masterpiece, two volumes in which the stamp of his greatness is on every page.

More Old Presidents

REVISED (ADDITIONAL PHOTOS)

Several days ago I posted some photographs of Abraham Lincoln, including an early daguerreotype (taken when he was 31 or 32 years old) that looks entirely unlike the image of Lincoln we carry in our minds. That led me to remember the collection of presidents’ images at the Smithsonian Institution’s National Portrait Gallery in Washington, D.C. (The Portrait Gallery is closed for major renovations but much of the collection is available for viewing online.) Here are two priceless photographs from the Portrait Gallery’s Hall of Presidents:

Daguerreotype of John Quincy Adams (1767-1848, president 1825-29), made in 1843 when Adams was 76 years old.

Daguerreotype of Martin Van Buren (1782-1862, president 1837-41), made ca. 1856 when Van Buren was about 74 years old.

Daguerreotype of Zachary Taylor (1784-1850, president 1849-50), with his aide and future son-in-law William S. Bliss, made ca. 1847 when Taylor was about 63 years old.

There’s a lot more from Presidential Hall here.

Here’s What a Real Nazi Does

For the benefit of those who glibly call Bush a Nazi, here’s what a real Nazi does:

Hitler Signs an Order Authorizing Involuntary Euthanasia in Germany, October 1939

Germany had been the site of an increasing number of measures taken in the name of “racial purity” since the Nazis assumed power in 1933, including forced sterilization of those with physical and/or mental handicaps, and the murder of infants with similar handicaps (in both cases, the primary targets were not Jews, but so-called “Aryans,” or non-Jewish Germans). Now in 1939, under the cover of war, the program was to be expanded to include murdering handicapped adults. Since Hitler would issue no law legalizing such forced “euthanasia,” and since physicians would hesitate or refuse to take part in the killing unless they had written protection from later prosecution, Hitler was persuaded to sign this document on his personal stationery (German-language version also available) instructing his assistants Philipp Bouhler and Dr. Karl Brandt to initiate the program. The document was signed in October 1939, but backdated to 1 September, the date of the beginning of World War II. For further information, see Henry Friedlander, The Origins of Nazi Genocide: From Euthanasia to the Final Solution. (Chapel Hill, N.C.: University of North Carolina Press, 1995), p. 67.

ADOLF HITLER

Berlin, 1 September 1939

Reichsleiter Bouhler and
Dr. med. Brandt

are instructed to broaden the powers of physicians designated by name, who will decide whether those who have – as far as can be humanly determined – incurable illnesses can, after the most careful evaluation, be granted a mercy death.

/signed/ Adolf Hitler

That’s Nazism for you.

(Thanks to my son for the link.)

The Young Mr. Lincoln

Thanks to American Digest, I found an article by Claude N. Frechette, M.D., “A New Lincoln Image: A Forensic Study,” in which Dr. Frechette documents his authentication of an early daguerreotype of Abraham Lincoln.

Believe it or not — and I believe it after having read Dr. Frechette’s article — the following image is that of Abraham Lincoln in the early 1840s, when he was in his early 30s:

The next image, about which there was no controversy, is that of Lincoln in 1848 at the age of 39:

Finally, we see Lincoln in 1862 at the age of 53:

A Very Politically Incorrect Labor Day Post

Labor Day gives most workers a day off. That’s good because an extra day off now and then is a pause that refreshes. A longish trek to a park or a beach on a hot day with a car full of kids isn’t a refreshing way to spend Labor Day, but those workers who spend the day at home, perhaps reading a book and listening to music, will find their souls somewhat restored.

Now let us consider the significance of Labor Day as a holiday. According to Wikipedia:

The origins of Labor Day can be traced back to the Knights of Labor in the United States, and a parade organized by them at that time on September 5, 1882 in New York City. In 1884 another parade was held, and the Knights passed resolutions to make this an annual event. Other labour organizations (and there were many), but notably the affiliates of the International Workingmen’s Association who were seen as a hotbed of socialists and anarchists, favoured a May 1 holiday. With the event of Chicago’s Haymarket riots in early May of 1886, president Grover Cleveland believed that a May 1 holiday could become an opportunity to commemorate the riots. But fearing it may strengthen the socialist movement, he quickly moved in 1887 to support the position of the Knights of Labor and their date for Labor Day. The date was adopted in Canada in 1894 by the government of Prime Minister John Thompson, although the concept of a Labour Day actually originated with marches in both Toronto and Ottawa in 1872. On the other hand, socialist delegates in Paris in 1889 appointed May 1 as the official International Labour Day.

Labor Day has been celebrated on the first Monday in September in the United States and Canada since the 1880s. The September date has remained unchanged, even though the two governments were encouraged to adopt May 1 as Labor Day, the date celebrated by the majority of the world. Moving the holiday, in addition to violating U.S. tradition, could have been viewed as aligning U.S. labor movements with internationalist sympathies.

In summary (for those of you who didn’t grow up in the North), Labor Day is an invention of organized labor, and the historical roots of organized labor are socialistic.

Labor Day also serves to remind us of one of the “monuments” of FDR’s New Deal (quoting again from Wikipedia):

The National Labor Relations Act of 1935 (or Wagner Act) protects the rights of workers in the private sector of the United States to organize unions, to engage in collective bargaining over wages, hours, and terms and conditions of employment, and to take part in strikes and other forms of concerted activity in support of their demands….

In the first few years of the Wagner Act, however, many employers simply refused to recognize it as law. The United States Supreme Court had already struck down a number of other statutes passed during the New Deal on the grounds that Congress did not have the constitutional authority to enact them under its power to regulate interstate commerce. Most of the initial appellate court decisions reached the same conclusion, finding the Act unconstitutional and therefore unenforceable. It was not until the Supreme Court upheld the constitutionality of the statute in 1937 in National Labor Relations Board v. Jones & Laughlin Steel Corp. that the Wagner Act became law in practical terms as well.

Thus Labor Day, in its way, commemorates legislative and judicial infamy. The Wagner Act, at one stroke, deprived business owners of their property rights and thus discouraged investment and business formation; invalidated the freedom of employers to contract with employees on terms acceptable to employers as well as employees; caused artificially high wages and benefits that harmed American workers by making American industry less and less competitive with foreign industry; and set the stage for the use of the Commerce Clause as an excuse for the federal government’s interference in all aspects of business.

So, if you are a worker, enjoy your Labor Day holiday, but don’t thank organized labor or the New Deal for your material blessings.

Where the French Went Wrong

A review of Gertrude Himmelfarb’s The Roads to Modernity says it well:

…Now comes distinguished historian Gertrude Himmelfarb (married to Irving Kristol, widely regarded as the godfather of the neoconservative movement) to add some intellectual heft to the right’s Francophobia.

Himmelfarb’s basic contention, one she supports with great passion and wide-ranging scholarship, is that the great 18th century French Enlightenment has been vastly overrated and that the British and American Enlightenments have been comparatively underrated. Her goal in writing this book is to “reclaim the Enlightenment…from the French who have dominated and usurped it” and restore it to the British and Americans.

So who stole the Enlightenment and gave credit for it to the French? Himmelfarb never says so directly, but one can venture a guess: liberals in academia. Her critique of the French Enlightenment is twofold: First, the French philosophes, from Rousseau to Voltaire to Diderot and the rest, were anti-religious, and second, they were elitists who scorned the common people. The French so worshiped reason that they denied the value of faith, thus cutting themselves off from the multitudes.

The great Voltaire, Himmelfarb points out, opposed education for the children of farmers on the grounds that they were mired in religious superstition and thus largely unredeemable. This kind of elitist thinking, Himmelfarb tells us repeatedly, pervaded the French Enlightenment. So did totalitarian impulses, impulses embodied in the French Revolution and “the Terror.” Himmelfarb spends much space describing Rousseau’s concept of the “general will” and how it influenced Robespierre and hence “the Terror.”…

Exactly. Rousseau, the godfather of communism, believed that individuals had surrendered their will to the state by entering into an imaginary social contract (somewhat like John Rawls’s imaginary “veil of ignorance”). And it was all downhill from there. Now we have Rousseau’s descendants — modern-day Democrats — who want to regulate our lives for our own good. That includes, of course, denying a good education to poor children in the name of “public” education.

A Historian Who Needs a History Lesson

UPDATED BELOW

Niall Ferguson, professor of history at Harvard and a senior fellow of the Hoover Institution at Stanford, writes in OpinionJournal at WSJ.com that Bush’s defeat would be good for the GOP. He supports this bold thesis by dredging one (just one) example from history:

Many [British] Conservatives today would now agree that it would have been far better for their party if [Prime Minister John] Major had lost the election of 1992. For one thing, the government deserved to lose. The decision to take the United Kingdom into the European Exchange Rate Mechanism had plunged the British economy into a severe recession, characterized by a painful housing market bust. For another, the Labour candidate for the premiership, Neil Kinnock, had all the hallmarks of a one-term prime minister. It was Mr. Kinnock’s weakness as a candidate that enabled Mr. Major to scrape home with a tiny majority of 21 out of 651 seats in the Commons. Had Mr. Kinnock won, the exchange rate crisis of September 1992 would have engulfed an inexperienced Labour government, and the Conservatives, having replaced Mr. Major with a more credible leader, could have looked forward to an early return to office.

I won’t go into the parallels Ferguson draws between Major’s next five years in office and what he expects of a second Bush term. Let’s just say that his assessment is about as good as that of the average anti-Bush protester who’s blocking traffic in Manhattan.

Ferguson — a Glaswegian by birth — must have a weak grasp of American political history. Parties in this country hold onto power by holding onto it, not by abdicating it. Thus the Jeffersonian Republican dynasty of 1801-25, the new Republican dynasty of 1861-85, the Democrat hegemony of 1933-69 (broken only by Ike’s winning popularity), and the Republican hegemony of 1969-2005 (interrupted only by Carter’s one-term debacle and Clinton’s Perot-assisted two terms).

I’m being a bit unfair to Ferguson, because he isn’t suggesting that Bush throw the election. He simply thinks that Republicans might be better off, in the long run, if Bush loses. But regaining power once it’s lost can be a hard thing to do. Losing tends to breed losing, here as well as in Britain. If Republicans are, at bottom, different than Democrats — and if they are likely to stay different — there’s a good reason many of us fear a Democrat dynasty. And, given the way of American politics, a Democrat dynasty might flow from a Kerry victory. Look how far down the road to socialism we marched during the Democrat hegemony of 1933-69.

Are such bad things bound to happen in a second Bush term that Republicanism will vanish into the same black hole as the British Conservative Party? I look at it this way: If Bush has made mistakes he has undoubtedly learned from them. Kerry, on the other hand, is a bundle of mistakes waiting to be opened.

Here’s to the continuation of Republican control of the White House — and Congress.

UPDATE:

Ramesh Ponnuru of The Corner at NRO agrees with me (though I don’t think he’s read this post):

Ferguson says that a second term of hawkishness, big spending, and social conservatism will further divide the party rather than unify it. He also makes a comparison to 1956. Eisenhower had pursued regime change in the Middle East in his first term; he won re-election and had a disastrous second term; that led to the Democrats’ owning the 1960s.

We are supposed to believe that the party will be more unified if it has no leader. Maybe, but it’s not the way to bet. The Eisenhower comparison is a total failure. Ferguson’s own recitation of Eisenhower’s foreign-policy record undermines his claim that “President Bush can be relied upon to press on with a foreign policy based on pre-emptive military force”–on his telling, Eisenhower had switched gears by the end of his first term. (Ferguson blasts him for “incoherence,” without noticing he’s making his own argument incoherent.)

And Eisenhower’s second term wasn’t the prelude to a Democratic majority–it was an interruption of a Democratic majority. The Democrats had won the five presidential elections before Eisenhower, and won the two following him. Eisenhower’s massive popularity allowed the Republicans to hold on to national power during a time of Democratic ascendancy. Cutting the Eisenhower interregnum short would not have improved Republicans’ prospects in the following decade. It’s bad enough when predictions about the future are far-fetched; predictions about the past should be more solid.

The Republican Advantage in Presidential Elections

Republican presidential candidates must work harder for their electoral votes than their Democrat opponents, yet they have a statistically significant advantage over those same opponents. What do I mean by “work harder”, what is the statistically significant advantage, and what are its implications for future elections?

Working Harder — A Result of Long-Term Political Realignment

From the election of 1880 — the first post-Reconstruction election — through the election of 1928, the percentage of electoral votes cast for the Republican candidate was usually the same as, or greater than, the percentage of States won by the Republican candidate. That relationship reflected the tendency of Republicans to win the more-populous States of the Northeast and Upper Midwest, whereas Democrats could only count on the less-populous States of the South.

After the aberrant election years of 1932-1948 (spanning the Great Depression, World War II, and the Dixiecrats), the relationship shifted, and the realignment of party allegiances began. Eisenhower made inroads into the “Solid South” in 1952, and greater inroads in 1956, while holding onto traditional Republican States. Then, as the Northeast and Upper Midwest began increasingly to vote for Democrats, the South began increasingly to vote for Republicans. This realignment was complete by the election of 1980, when the Democrat (Carter) won only one Southern State — his home State of Georgia.

Although the population of the Southern States has grown faster than the population of the States in the Upper Midwest and Northeast, the net result of realignment, thus far, has been to the disadvantage of Republican candidates. That is, since realignment Republicans must win a higher percentage of States than they did before realignment in order to win a given number of electoral votes. That relationship will change, of course, as realignment persists and the South continues to outstrip the North in population growth. But it holds for now, even in the aftermath of the 2000 census.

The Statistical Advantage

Republican presidential candidates, in spite of their geographic disadvantage, have held a significant statistical advantage over Democrats since the 1950s. Perhaps it began with Eisenhower, survived the Goldwater debacle and Nixon’s disgrace, was renewed by Reagan, and wasn’t diminished by Clinton’s ephemeral and largely partisan appeal. Whatever the explanation, the share of Republican presidential candidates has been out of proportion to their share of the popular vote, which means that they have tended to do better than Democrats in populous swing states.

The effect of this phenomenon is shown by a statistical analysis of the percentage of electoral vote going to the winner of elections from 1956 through 2000. The best regression equation has only two significant explanatory variables: percentage of two-party popular vote and Republican Party affiliation.

Implications

If Republicans can hold onto their solid base of States in the South, Southwest, the Plains, and the Rocky Mountains — and if they do not destroy the trust in presidential Republicanism that seems to be the legacy of Eisenhower and Reagan — they can win the White House more often than not for decades to come. That’s not a guarantee, because those are big “ifs”.

Oops, Here’s the Last Word

UPDATED BELOW

It all began with Michelle Malkin’s post about her new book, In Defense of Internment: The Case for “Racial Profiling” in World War II and the War on Terror. It escalated into exchanges between Malkin and Eric Muller, guest-blogging at The Volokh Conspiracy. I’ve been commenting from the sidelines, and I thought I was through when I said

The ultimate word goes to Instapundit, because he agrees with what I’ve said about the Muller-Malkin exchange, namely, “most of the discussion has to do with things that happened 60 years ago, as opposed to what we ought to do now.”

But Malkin gets the last word because she has summarized her recommendations for the present emergency:

…I am advocating narrowly-tailored and eminently reasonable profiling measures such as:

…The post-September 11 monitoring of Arab and Muslim foreign students on temporary visas.

…Airport and travel screening measures that subject individuals of certain nationalities to heightened scrutiny; preventive detention of known illegal aliens, suspected terrorists, or enemy combatants; immediate deportation of illegal aliens from terror-sponsoring and terror-supporting nations; a moratorium on temporary visas to countries with large al Qaeda presences.

…Heightened scrutiny of Muslim chaplains and soldiers…serving in the military and in prisons.

In addition,…I discuss the need for “structural reforms that allow our country to better meet the potential threat posed by future Kenji Itos (he was a suspected intelligence agent for Japan who was acquitted of federal charges because prosecutors couldn’t introduce MAGIC into a civilian court), Jose Padillas, and Zacarias Moussaouis but that also allow enemy combatant designations to be reviewed by an independent board or court.” I also draw lessons from the need to protect MAGIC during WWII and apply them to the current need for more secrecy in some vital national security matters today….

UPDATE:
Eric Muller and Greg Robinson are still trying to rebut Malkin. Click on this link to their most recent post, then scroll down to see more. I think they’re just nit-picking and being smarmy because they’ve been kicked in the teeth (figuratively) by an intellectually tough opponent who (rightly) isn’t cowed by their Ph.D. degrees. Judge for yourself.

Refighting the Past

A FINAL UPDATE (#3 BELOW)

It started when Michelle Malkin touted her new book, In Defense of Internment: The Case for “Racial Profiling” in World War II and the War on Terror. Eric Muller, a guest-blogger at The Volokh Conspiracy, has begun scrutinizing Michelle’s book. I’d say that he’s less than enthusiastic about her defense of the relocation of Japanese-Americans during World War II and its implications for the way we might behave toward Muslims in this country. To my mind, the issue was framed best by Justices Black and Frankfurter in Korematsu v. United States (1944). Here’s Justice Black writing for the U.S. Supreme Court:

To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that at that time these actions were unjustified.

Justice Frankfurter’s concurring opinion says, in part:

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is “the power to wage war successfully.”…Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless.

That’s good enough for me.

UPDATE 1 (10:54 PM, 08/04/04):

Eric Muller’s latest post cites Greg Robinson, author of By Order of the President: FDR and the Internment of Japanese Americans, which Muller calls “the definitive scholarly account of the genesis of the Administration’s decision to evict and detain all of the West Coast’s Issei and Nisei.” Robinson’s work apparently undercuts Malkin’s “argument…that intercepted and decrypted Japanese ‘chatter’ about efforts…to recruit Japanese aliens (“Issei”) and American citizens of Japanese ancestry (“Nisei”) was ‘the Roosevelt administration’s solid rationale for evacuation.'” This is all peacetime hindsight of the sort rejected by Black and Frankfurter. You do what you have to do in wartime, based on the best information available at that time. Because erring on the side of caution — or civil liberties — can be fatal when thousands, tens of thousands, and millions of lives are at stake. Muller and company are refighting past wars. Malkin is trying to help us win the present one.

UPDATE 2 (10:35 AM, 08/05/04):

Now Eric Muller writes this:

[Malkin’s] book quotes extensively from a handful of deciphered messages (the “MAGIC” cables) about Japanese efforts to develop some Issei and Nisei as spies for Japan. It really all turns on those MAGIC cables. The trouble is that the historical record tells us absolutely nothing more than that Roosevelt, the Secretary of War (Stimson), and his top assistant (McCloy) generally had access to the thousands of messages of which these concerning potential Issei and Nisei spies were a tiny few. The record tells us nothing about who actually reviewed which of the intercepts, or when, or what any reader understood them to mean. The record is just silent on these issues–reflecting, in a way, the silence of the actors themselves on MAGIC at the time. One might well say (and Michelle does), “but they couldn’t talk or write about the MAGIC decrypts; they were ultra-secret and everybody was keen to keep them that way.” That may well be so. But that doesn’t mean we can fill in the silence in the record with our own suppositions about what they must have read and what they must have thought about what they read. In short, Michelle’s book presents no evidence–because, apparently, there is none–to show that MAGIC actually led anybody to think or do anything….

But there are the MAGIC intercepts. The rest is, as Muller admits, supposition. Why is his supposition any better than Malkin’s? Muller then changes the subject from why the Issei and Nisei were relocated to where they were relocated:

…The federal government, having evicted Japanese Americans from their homes and confined them in the late spring of ’42 in racetrack and fairground “assembly centers,” wanted to move Japanese Americans to wide-open, unguarded agricultural communities in the interior, modeled after Civilian Conservation Corps camps. But in early April of 1942, the governors of the Mountain States unequivocally rejected that idea, saying (I quote here the words of Governor Chase Clark of Idaho) that “any Japanese who might be sent into [the state] be placed under guard and confined in concentration camps for the safety of our people, our State, and the Japanese themselves.” The federal government, needing the cooperation of the states, had no choice but to accede to the governors’ demands.

So Japanese Americans ended up going into guarded camps (call them what you will) because Mountain State governors demanded it. Do you think that the governor of Idaho had access to the MAGIC decrypts, and that he formulated his demand for “concentration camps” on the basis of an evidence-based belief of military necessity? Or do you think maybe something else explained it?…

Yes, racism probably had a lot to do with how the Issei and Nisei were treated after the federal government had ordered them out of their homes. It might have had something to do with the decision to evict them. But this is all beside the real issue, which is the wholesale suspension of civil liberties in wartime — as a matter of military necessity. Justices Black and Frankfurter, quoted above, settled that issue in 1944, to my satisfaction.

UPDATE 3 (9:15 PM, 08/05/04)

The penultimate word goes to Greg Robinson, quoted by Eric Muller:

Michelle Malkin engages in overkill. Her stated purpose is to prove that the removal and confinement of Japanese American aliens, and particularly of citizens, was based on justifiable fears of espionage and sabotage, rather than racism (and thus to make the case for racial profiling by the Bush Administration). If this were all she wished to argue, she could have stopped with the signing of Executive Order 9066 itself. She could then more easily have made the case that the Army and the Executive felt obliged to act as they did considering the circumstances, though it was a terrible injustice to loyal citizens. After all, how the government’s policy played itself out afterwards is logically irrelevant to the initial cause.

That’s precisely the point I’ve been trying to make by quoting Justices Black and Frankfurter.

The ultimate word goes to Instapundit, because he agrees with what I’ve said about the Muller-Malkin exchange, namely, “most of the discussion has to do with things that happened 60 years ago, as opposed to what we ought to do now.”

Fun Facts about Electoral Votes

I just learned that Lloyd Bentsen, Dukasis’s running mate in 1988, received one electoral vote because an elector from West Virginia voted for Bentsen as president and Dukakis as vice president. Well, what do you expect from a State that went for Bush but also sends Jay (raise taxes, I can afford it) Rockefeller and Bobby (Ku Klux Klan) Byrd to the Senate?