Archive | History

Emmy nomination for 1951 Colorado Inside Out

Every year the political roundtable show Colorado Inside Out does a time machine episode. Last year’s 1951 episode has just been nominated for a regional Emmy Award, in the news/interview program category. Our topics for the episode were the firing of Gen. Douglas MacArthur, the Korean War, duck and cover training, and the new federal government center in Denver. Characters were the famous singer and actress Ethel Merman, who had recently moved to Denver (played by Westword publisher Patty Calhoun), newspaperman Al Nakula (played by former Rocky Mountain News journalist Kevin Flynn), sociology professor Lois Waddell (played by Dani Newsum), and southern Colorado newspaper editor Cecil Koplowitz (played by me, evoking my father’s first journalism job, in Walsenberg).

We  are getting ready to tape a new episode, which will be set in 1912. Patty Calhoun will portray Denver socialite and social climber Molly Brown. I’m busy reading about the Balkan War which began in 1912. The episode will premiere on Friday, July 6. [...]

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D-Day thoughts

In a column from 2000, I examined what military historians suggest might have happened if the D-Day landings had been repulsed. Or what if they had taken place in 1943 instead of 1944? The short answers are that if D-Day had failed, Stalin would have ended up occupying almost all of German, which would have significantly changed the balance of power in the Cold War. Had the Allies invaded France in 1943, rather than invading Sicily, they probably would have made faster progress than they did in 1944. VE Day would have come a year earlier, with the Allies capturing most of Germany.

In 1994, Dan Gifford and I wrote that “D-Day was almost a German holiday.” That is, in the darkest days of the war, defending U.S. coastal areas was a crucial concern. Fortunately, the states were able to call forth their self-armed citizen militias for coastal defense, while the U.S. Army and National Guard were busy elsewhere.


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The Great Gun Control War of the 20th Century — And its Lessons for Gun Laws Today

This is the subject of my article in a forthcoming symposium issue of the Fordham Urban Law Journal. The article details the political, cultural, social, and legal battles over gun control from the 1920s to the early 21st century. Here’s the abstract:

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, at most, allowed as a very limited privilege. Another side asserted that the right to arms was absolute, and that any gun control laws were infringements of that right.

By the time that Heller and McDonald came to the Supreme Court, the battles had mostly been resolved; the Supreme Court did not break new ground, but instead reinforced what had become the American consensus: the Second Amendment right to keep and bear arms, especially for self-defense, is a fundamental individual right. That right, however, is not absolute. There are some gun control laws which do not violate the right, particularly laws which aim to keep guns out of the hands of people who have proven themselves to be dangerous.

In the post-Heller world, as in the post-Brown v. Board world, a key role of the courts will be to enforce federal constitutional rights against some local or state jurisdictions whose extreme laws make them outliers from

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House Tax bleg

In July 1798, Congress enacted a direct tax to raise revenue for national defense against France. The “House Tax” imposed taxes on land, houses, and slaves. As required by Article I, section 9, clause 4 of the Constitution, this direct tax was apportioned by state population. Fries’s Rebellion, which was eventually suppressed by President Adams, involved violent resistance to this tax, based on the claim that the tax was unconstitutional. Because the direct tax was properly apportioned, it seems perfectly constitutional to me. Does anyone know the specifics of the constitutional objection to the House Tax? [...]

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How the British Gun Control Program Precipitated the American Revolution

I posted a draft of this article a few months ago, and I thank VC readers for some helpful comments in improving it. The final version has been published by the Charleston Law Review, and is available on SSRN. Here’s the abstract:

This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if their purpose is to disarm the public, rather than for the normal purposes of import controls (e.g., raising tax revenue, or protecting domestic industry). We can discern that broad attempts to disarm the people of a town, or to render them defenseless, are anathema to the Second Amendment; such disarmament is what the British tried to impose, and what the Americans fought a war to ensure could never again happen in America. Similarly, gun licensing laws which have the purpose or effect of only allowing a minority of the people to keep and bear arms would be unconstitutional. Finally, we see that government violence, which should always be carefully constrained and controlled, should be especially discouraged when it is used to take firearms away from peaceable citizens. Use of the military for law enforcement is particularly odious to the principles upon which the American Revolution was based.

Readers interested in more detail on the role of [...]

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Liberty Quotes. Free new book

Just published on-line by the Ludwig von Mises Institute, at Auburn University. Edited by Christopher Kalabus. Subtitled “Peace and Prosperity: A collection of historical, legal, and philosophical quotations.” Begins with Edward Abbey and Bruce Ackerman, and concludes with Aaron Zelman. In-between are quotes from VC writers Adler, Barnett, and Kopel.  Plenty of pro-right to arms quotes, for those who like that sort of thing. [...]

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Cinco de Mayo: An all-American holiday

UCLA Professor David Hayes-Bautista explains the 1862 origins, an all-American holiday created by Mexican-Americans, who saw the Mexican victory against the French attempt to destroy Mexican democracy as another front in the Union’s battle against the Slave Power.

The Franco-Mexican war continued until 1867, and American firearms played an important role in the liberation of Mexico.  When the French occupied Mexico City,  Mexican President Benito Juárez set up a resistance movement in northern Mexico. There, he ordered 1,000 Winchester Model 1866 carbines in .44 caliber, to be delivered to Monterrey, along with 500 cartridges per gun. The Juárez forces paid $57,000 in silver coin. “R.M.” – for “Republic of Mexico” – was inscribed on the frames of the carbines. Today, “Juarez Winchesters” are very valuable collectors items. [...]

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The “Taint of Social Darwinism”

The New York Times has up a post by Philip Kitcher, John Dewey Professor of Philosophy at Columbia University, on Social Darwinism. Kitcher is eager to reach the conclusion that the GOP’s budgetary policies are “Social Darwinist”, and in service to that agenda, or perhaps because his research on the matter isn’t up-to-date, her presents an extremely simplistic version of the history of Social Darwinism that’s right out of Richard Hofstadter’s influential but dubious 1944 work Social Darwinism in American Thought. As an antidote, I recommend reading Thomas C. Leonard’s excellent essay, Origins of the Myth of Social Darwinism: The Ambiguous Legacy of Richard Hofstadter’s Social Darwinism in American Thought. The short version: our current concept of “Social Darwinism” has a lot less to do with what intellectuals of the late 19th and early 20th century actually believed–Progressives often broadly fit the category of “Social Darwinist”, libertarian types less so than is commonly believed–and more to do with the Hofstadter’s ideological agenda of supporting Progressive economic reform (Wikipedia quotes him as saying, “I hate capitalism”) while undermining the case for using biology in the social sciences.

UPDATE: So, Hofstader deemed “Social Darwinists” not people who called themselves Social Darwiwinists, nor always those who used scientific or biological concepts to inform social policy. Rather, he largely defined Social Darwinists as those whose views were diametrically opposite to his own, in that they believed in the relevance of science to social policy and were individualists in their social policy outlook. Thus, the many Progressives who believed that the “survival of the fittest” meant that an active government was necessary to ensure that American society was able to compete with other societies did not generally get labeled as Social Darwinists. (Indeed, Darwinian ideas in social policy long outlasted the virtual last [...]

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President Obama versus the Constitution

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every

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In Defense of Rutherford B. Hayes

In a recent speech, President Obama attacked former President Rutherford B. Hayes (1877-1881).  As Politico reported:

Speaking about the need to develop new sources of American energy in Largo, Md., Obama used our 19th president to illustrate a failure of forward-thinking leadership.

“One of my predecessors, President Rutherford B. Hayes, reportedly said about the telephone: ‘It’s a great invention but who would ever want to use one?'” Obama said. “That’s why he’s not on Mt. Rushmore.”

“He’s looking backwards, he’s not looking forward. He’s explaining why we can’t do something instead of why we can do something,” Obama said. “The point is there will always be cynics and naysayers.”

The telephone quip is often attributed to President Hayes, but it turns out to be completely false — a “four pinocchio” falsehood.  As New York reports, historians have a different view of the 19th president who, it turns out, was quite taken by the telephone and quite supportive of new technologies.

[Rutherford B. Hayes Presidential Center’s Nan] Card noted, Hayes was not only the first president to have a telephone in the White House, but he was also the first to use the typewriter, and he had Thomas Edison come to the White House to demonstrate the phonograph. “So I think he was pretty much cutting edge,” Card insisted, “maybe just the opposite of what President Obama had to say there.”


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The Machinery of Criminal Justice: From Public Morality Play to Hidden Plea Bargaining Machine

In yesterday’s guest-blog post on my new book, The Machinery of Criminal Justice, I surveyed how colonial American criminal justice was public, participatory, informal, and run by laymen.

To be clear in response to some comments, I did not imply that we should go back to Salem witch trials, let alone medieval European trial by ordeal. Nor did I endorse flogging or rampant use of the death penalty, though actual executions were much less common than most people suppose. Nor did I say that we ought to get rid of all modern due process and lawyers and go back to 20-minute-long trials (though one can question how much better modern plea bargaining is in practice). My point was more modest: that the colonists saw justice done and had their day in court. In our Whiggish assumption that the past was irredeemably backward and all change is progress, we often overlook what we have lost in our quest for efficiency.

Today, I’d like to set forth some of the things that changed over the course of the nineteenth and twentieth centuries, transforming the lay-run morality play into a professionalized plea bargaining assembly line.

First, over the course of the nineteenth century, public prosecutors steadily gained control of American criminal justice at the expense of victims. Some colonies did have public prosecutors, but their role was occasional and limited. To give just one example, some public official was needed to prosecute homicides because, for obvious reasons, the victim could not. But there was nothing like a professional, state-dominated system of routinely detecting, charging, and prosecuting crime.

Prosecutors, of course, lack victims’ personal stake in the outcome. That is good as a way to check private vengeance, but it also opens the door to what economists call agency costs: the distinctive [...]

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The Machinery of Criminal Justice: Colonial Criminal Justice as a Morality Play

I’d like to thank Eugene and his fellow co-conspirators for graciously letting me guest-blog this week about my new book, The Machinery of Criminal Justice, which was just published by Oxford University press and is available here. In a nutshell, the book is about:

1) how America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers;

2) what we have lost in our quest to process ever more cases efficiently; and

3) how we could swing the pendulum part-way back toward greater public involvement and confidence within a lawyer-run system.

I can’t cover the entire book in a week and won’t try to excerpt it. But I hope to give you a sense of how far modern American criminal justice has drifted from its roots and the hidden costs of efficiently boosting the quantity of cases prosecuted at the expense of the quality of how we do it.

Let me start today and tomorrow by canvassing how, without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine. There’s no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads. What I want you to see, however, is the price we have paid to purchase more and more efficiency.

In the seventeenth and eighteenth centuries, of course, most people lived in small towns and villages. Communities were very cohesive, as everyone knew everyone else and word of mouth traveled quickly. They were very often ethnically and religiously homogeneous, with a shared sense of what was and always had been wrong. The downside, of course, is that social and legal pressures to conform could be stifling.

But there were upsides too. Because [...]

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Libertarianism and the Civil War

Over at Libertarianism.Org, Jonathan Blanks has an interesting series of posts criticizing libertarians who defend the secession of the Southern states that precipitated the civil war (see here and here). Like Blanks, I believe that any possible justification that the Confederates may have had was negated by the fact that they seceded for the purpose of perpetuating slavery – a far greater violation of libertarian rights than anything white southerners could complain of in 1861.

There are, generally speaking, three types of libertarian perspectives on the Civil War. Many libertarians actually support the war, some condemn it without defending the Confederacy, and some are actually pro-Confederate.

I. Libertarian Unionism.

Many libertarians actually agree with the conventional wisdom on the conflict: that, although it caused great harm, it was ultimately beneficial because it led to the abolition of slavery. Although I haven’t seen any survey data, informal discussions with libertarian intellectuals and activists lead me to believe that this view actually very common in the movement, perhaps more so than either of the others. However, few libertarian Unionists have actually written about the conflict, perhaps because libertarian scholars tend to focus on issues where we diverge from the conventional wisdom of non-libertarians rather than endorse it (Tim Sandefur’s article on the subject is an interesting exception). Pro-Union libertarians do, however, differ from many other defenders of the Union cause in so far as most believe that the preservation of the Union was not by itself a sufficient justification for the war, independent of slavery.

II. Condemning the War Without Endorsing the Confederacy.

A second libertarian approach to the Civil War recognizes that the Confederates seceded for the purpose of protecting slavery, and does not defend their actions. But it still holds that the war actually did more harm than [...]

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Lawtalk: Volokh Abets Observations on “Aid and Abet”

In addition to the scores of specific words and phrases dissected in Lawtalk: The Unknown Stories Behind Familiar Legal Expressions, we also discuss more generally what may be the most ridiculed characteristic of legal language — its predilection for redundancy: “aid and abet,” “over and above,” “goods and chattels,” “ordered, adjudged, and decreed,” and so on and so forth. In law school it was explained to me that this was the result of combining words from Old English (like goods) with substantially synonymous words of French origin (like chattels) to assure comprehension in an age in which both languages were used in England, particularly in legal contexts.

But this common explanation doesn’t hold water. Aid and abet, for example, are both from French; over and above are both native English. In Lawtalk we point out a number of considerations that fostered — and in many cases still foster — the use of such phrases, such as the fear that omitting some customary word would open the door to an argument that some shade of meaning is not covered. A factor now mostly forgotten is that for centuries court clerks, and even some lawyers, were paid by the page — an approach unaccountably neglected in the search for alternatives to billing by the hour, about which Beth Thornburg wrote in this space two days ago. And we emphasize an even more overlooked factor: that the use of redundant expressions is not specifically a lawyerly habit, but a common stylistic feature of general English, sometimes adding gravity (e.g. wrack and ruin) and sometimes whimsy (jot and tittle).

An e-mail the other day from Eugene Volokh, however, raises the interesting question of how redundant such phrases really are. He noted that abet historically referred to verbal encouragement [...]

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Of Time and Lawtalk

Thanks so much to Eugene Volokh for the invitation to guest blog about Lawtalk:  Unknown Stories Behind Familiar Legal Expressions this week.  Working on the book was tons of fun (and a dramatic lesson in the amount of historical material now available online), and my co-authors and I are enjoying the opportunity to share what we’ve learned with those who are interested.  Today’s topic is time, both in the sense of the provenance of legal expressions and as a measuring stick for legal fees.

In many cases, we discovered that law-related expressions are much older than people generally believe, and older than the earliest cites in the Oxford English Dictionary.  For example, I initially bought into the myth that Los Angeles police chief William H. Parker coined the phrase thin blue line in the 1950s (thanks, Wikipedia).  Not true:  in its laudatory metaphorical form (referring to the police as a line protecting the citizenry from crime), we traced this play on “thin red line” (referring to red-coated British soldiers in the Crimean War) back to a speech given by the Bishop of Coventry to the annual meeting of supporters of the Birmingham Police Institute in 1900–and as a literal reference to lines of policemen, all the way back to 1855.

A different kind of surprise, though, was how comparatively new the expression billable hour is.  In fact, billable in this sense is even now absent from the OED; it has the word only as a legal term meaning “liable to be served with a bill; indictable,” and its only cite is from 1579. Billable as an accounting term meaning ‘something one can bill for’ seems well established by the turn of the twentieth century, although LexisNexis shows the earliest case law use of this version of billable in a [...]

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