Like many Wisconsin lawyers of his generation, Jenkins was a native New Yorker who had moved to Milwaukee prior to the Civil War.  He was born in Saratoga Springs on July 18, 1834, the son of New York City merchant Edgar Jenkins and Mary Elizabeth (Walworth) Jenkins. His maternal grandfather was Reuben Hyde Walworth, a former United States congressman and New York chancellor who in 1844 was nominated, unsuccessfully as it turned out, to the United States Supreme Court by President John Tyler. 

Jenkins did not attend college or law school but instead studied law in the office of the New York City firm of Ellis, Burrill, and Davison for five years. He was admitted to the bar at age 21 and worked as “head clerk” for a New York law office for two years.  In 1857, he relocated to Milwaukee.  

Over the next 31 years he engaged in the practice of law in Milwaukee. According to Jenkins, his first position in the city was in the law office of Jason Downer who paid him $3 per week.  However, within in six months he had become a partner with Downer, who in 1864 became a justice on the state Supreme Court.  Jenkins later formed a partnership with Edward Ryan and Matthew Carpenter, both legendary figures in the legal history of Wisconsin, and he was later a partner with the less-well remembered James Hickox.  

An active Democrat, Jenkins did not serve in the Civil War.  However, he was one of the speakers at a mass rally on behalf of the Union war effort held in Wisconsin on July 31, 1862, and in 1863, he was elected Milwaukee City Attorney, a position that he would hold until 1867.  After leaving office, he formed his own law firm which was known at various times as Jenkins & Elliott; Jenkins, Winkler, & Smith; and Jenkins, Winkler, Fish & Smith.  In 1877, he chaired the state Democratic convention that nominated James S Mallory of Milwaukee for the state’s highest office.  

In 1879, Jenkins himself was the Wisconsin Democratic Party’s nominee for Governor of Wisconsin, but he was beaten fairly soundly by Republican William E. Smith who received over 50% of the votes in a three-man race.  (There was also a Greenback Party candidate who received approximately 7% of the vote.)  In 1881, he was the Democrat candidate for the United States Senate, but the Republican majority in the Wisconsin legislature not surprisingly chose one of their own.  

Jenkins’ services to his party did not go unappreciated.  In 1885, newly elected Democratic president Grover Cleveland offered Jenkins a position on the Supreme Court of the District of Columbia, but Jenkins declined the appointment.  However, on June 18, 1888, he was appointed United States district judge for the eastern district of Wisconsin by President Grover Cleveland and his appointment was confirmed by the Senate on July 2.  Although Cleveland was defeated for reelection in 1888, he was again elected president in 1892.  For his second term, he selected Judge Walter Q. Gresham, a former Republican turned Democrat, as his Secretary of State, and in 1893, Jenkins was appointed Gresham’s replacement as United States Circuit Judge for the Seventh Judicial Circuit.  His nomination was confirmed by the Senate and he sat on the Circuit Court until he retired in 1905 at the age of 71.  

Shortly after his appointment to the Seventh Circuit, Jenkins was arrested following an indictment by a Milwaukee grand jury which concluded that he and the other directors of the failed Plankinton Bank had improperly taken money from the bank after it had become insolvent.  The story of Jenkins’ arrest was reported on the first page of the July 13, 1893 New York Times, but Jenkins resisted suggestions that he resign from the bench, and in November, the indictments were declared “null and void” by the Milwaukee Circuit Court. 

Jenkins most famous (or infamous) judicial decision also came in 1893 in the case of Farmers Loan & Trust Co. v. No. Pacific Ry., 60 Fed. 803, in which he enjoined a strike against a railroad under receivership and in doing so coined the phrase “government by injunction” (which he viewed favorably).  Jenkins’ injunction, which was interpreted as barring the workers from quitting their jobs, was highly controversial, and there were efforts in Congress to censure him.  Eventually he survived the attacks, although the broader aspects of his ruling were narrowed on appeal. 

            After retiring from the bench in 1905, Jenkins returned to Milwaukee where he remained at least semi-retired, a status that meant that he was potentially available to fill the newly created position of dean of the Marquette University College of Law.  Although he was 74 years old in the fall of 1908, there were a number of reasons why he was an attractive candidate for the position of dean.  First of all, Jenkins’ prominence as a jurist brought a degree of luster to the law school.  In addition to his status as a federal circuit court judge, he also had been awarded honorary doctor of law degrees from the University of Wisconsin (1893) and Wabash College (1897).  He was also a member of the nine-lawyer committee that drafted the original American Bar Association Canon of Ethics which was formally adopted in the summer of 1908. 

Furthermore, although Jenkins himself had not attended law school, he had been involved with legal education off and on throughout his career.  Early in his law practice, he had trained a number of attorneys in his office, including Milwaukee lawyers Horace Upham and Louis Lecher (once Jenkins’ secretary) both studied law under his direction.  While a judge, he had also lectured at law schools in Milwaukee and Chicago.  

Although the extent of his involvement is not clear, he reportedly lectured at the Milwaukee Law School during its early years, and he was involved with the establishment of the John Marshall Law School.  John Marshall, an evening law school located in the Chicago Loop, had been founded in 1899, while Jenkins was still on the federal bench and based in Chicago.  He was one of the school’s original faculty members and was the featured speaker at its first commencement in 1902.  Apparently his connection to the law school was one that continued until his retirement from the bench in 1905.  In 1906, the Chicago school published several of his lectures delivered at the law school the year before which was his final year in the Windy City. 

While his teaching probably involved little more than showing up a couple of nights a week and delivering lectures on federal court procedure, his experiences did provide him with some exposure to contemporary legal education, albeit of the night school variety.  The Milwaukee Law School and the Milwaukee University Law Schools had provided instruction at night, but the plan for the new Marquette University Law School was to have both a day and an evening program. 

Jenkins was also not a Roman Catholic, but that does not appear to have been a major concern of the priests who ran Marquette University in 1908, as all but one of the original law faculty members were Protestants.  (The University took the same ecumenical approach to the recruitment of members for its Board of Regents which was founded in 1909.  The original regents included Jenkins and a number of other Protestants, and, shortly thereafter, Jews.) Although Jenkins was an Episcopalian, he did have a connection to Roman Catholicism in that his uncle, Clarence Walworth, was a convert to Catholicism and a founder of the Paulist Fathers. 

One of the strategies of the new Marquette Law School was to supplement the instruction of the regular faculty (all of whom also practiced law) with lecturers drawn from the ranks of distinguished lawyers and jurists.  Presumably, Jenkins’ personal connections in Wisconsin and Illinois helped facilitate this, and the law schools’ first catalog lists 24 such lecturers, including Chicago federal judge Kenesaw Mountain Landis, later the first commissioner of Organized Baseball.  Jenkins himself was listed as a lecturer (and not a professor) with the Law of the Sea and Trade Marks listed as his subject areas. 

The law school appeared to flourish under Jenkins direction.  The enrollment in the fall of 1908 was 127 students, including 77 freshmen, totals that far exceeded those of its two private law school predecessors.  Entry level enrollments leveled off after the first year but overall enrollments remained strong, and the number of students reached 166 in the fall of 1915, Jenkins last semester as dean.  Moreover, after initially holding classes in Johnston Hall, the law school obtained its own building in 1910, the Mackie Mansion, located on the current site of Sensenbrenner Hall.  In 1912, the law school was admitted into the Association of American Law Schools, an organization of law schools committed to higher admissions standards (at least a high school diploma or its equivalent) and an expanded curriculum (a three year law course). 

Although Jenkins was a “full-time” dean and occupied one of the few faculty offices in the law school building (the Mackie Mansion), he taught very little and appears to have been somewhat detached as an administrator.  He was originally assisted by an associate dean—first Lynn Pease and then Edward Spencer, both former faculty of the Milwaukee Law School—but it appears that neither Jenkins nor the associate deans kept any records at all.  In 1911, Arthur Richter was hired as a full-time faculty member and secretary for the law school, but the situation did not appear to significantly improve. 

The final years of Jenkins’ deanship were marked by controversy.  In 1914, Richter published an article in the American Law School Review (the leading publication devoted to legal education in the early 20^th century) that accused the University of Wisconsin Law Department of unfairly lobbying the legislature to defeat a new bar admissions statute that would have eliminated the diploma privilege.  In reply, Professor Howard L. Smith of the University of Wisconsin attacked the character and quality of the Marquette Law School and noted, correctly, that Marquette had supported the diploma privilege until it became clear that the Wisconsin legislature until it became clear that the Wisconsin legislature was not going to extend the privilege to an institution that many Wisconsin lawyers still thought of as a night school.  Marquette, presumably with the approval of Jenkins, then threatened to sue the University of Wisconsin for libel.  This cross-state verbal warfare did little to help the reputation of Marquette and seems not to have harmed its public school neighbor.  It also did not help when it was revealed that during the acrimonious Richter-Smith exchange, Richter was secretly trying to secure an appointment to the Wisconsin faculty. 

A more serious problem arose in 1915 when Marquette underwent a surprise inspection by the Association of American Law Schools to determine if it was in fact complying with AALS guidelines.  Although the 81-year old Jenkins decided somewhat abruptly to step down in the fall of 1915, there seems little doubt that his lax leadership and record keeping had made the investigation more likely.  Marquette was able to survive an effort to expel it from the organization the following year, but its poor record keeping clearly hampered its ability to prove its innocence.  Jenkins was replaced as dean by faculty member Max Schoetz, who began as acting dean but was given the permanent position the following year. 

After stepping down as dean, Jenkins remained a member of the Marquette Board of Regents until his death in Milwaukee on August 6, 1921.  He also continued to be involved in a variety of civic affairs and sat on a number of boards of charitable organizations.  On September 30, 1917, the Milwaukee Old Settlers Club honored him for his 60 years of residence in the city.  After his retirement, he also published an article on the “Admiralty Jurisdiction of Courts” in Volume 4 of the Marquette Law Review. 

Although it was written in 1897 for publication in a highly flattering biographical encyclopedia called Men of Progress: Wisconsin Jenkins would probably have been pleased with the following as his obituary:

He has always been a close student of the law, of general literature and of the arts; and these studies have given him a strength and a grace in all his efforts at the bar which not many of his professional associates have attained. Free from the tricks and cunning which too often disgrace the practice of a noble profession, he came to be recognized as one of the foremost and ablest of the bar of Wisconsin. As a practitioner he had his full share of notable cases in the courts, and conducted as large a percentage of them to successful conclusion as have the most prominent of his contemporaries. 

His bust can be found on the first floor of Sensenbrenner Hall, just outside the elevator.

The Law of Sports is extremely difficult to locate; in fact, it appears that there is no known copy in the United States. This work was reviewed in the London Journal in 1896, and the following description of the work can be found on page 152 of Volume 13 of Fores’s Sporting Notes and Sketches,(London 1896) under the heading of “Notes on Novelties”:

The Law of Sports by W. M. Thompson and J. D. A. Johnson, LL.D., is a useful pamphlet, the copious information therein contained being summarised into the smallest possible space. The legal points connected with the game laws, fishing, hunting, racing, and gambling, being (so to speak) “in a nutshell.” Hearnden, New Inn Chambers, is the publisher.

Fores’s Sporting Notes and Sketches, which can be found in the New York Public Library, was a magazine containing articles ”descriptive of British, Indian, Colonial, and Foreign Sport.”  Because Fores’s description makes no mention of team sports like cricket, rugby, or association football or of individual competitor sports like golf and tennis, it is conceivable that the Thompson and Johnson work is devoted only to what are often called “field sports.” 

If that is so, there are many older works on those topics, including George Putnam Smith, The Law of Field-Sports, which was published in 1886 by the New York publisher O. Judd Company, and Henry John Rous’ The Laws and Practices of Horse Racing (London 1866), which earned its author the appellation “the Blackstone of Horse Racing.”  Works on the law of hunting date back at least to the 18^th century.  Thomson Gale, The Game Laws was published in its 7^th edition in 1807.

In 1988, Barry Bonds married Susann “Sun” Margreth Blanco, a native of Sweden, in Las Vegas.  The two had met the previous summer in Montreal while Bonds was playing for the Pittsburgh Pirates and Sun was working as a bartender.  The day before they were married, each signed a prenuptial agreement by which each waived any interest in the earnings of the other during marriage.  The agreement was prepared by Bonds’ lawyers, and Sun was not represented by counsel.  She was also unemployed at the time the agreement was signed.

In 1994, after six years of marriage and two children, Bonds petitioned for a legal separation, and his wife subsequently requested a dissolution of the marriage on grounds of physical abuse and infidelity (presumably involving Bonds infamous girlfriend, Kimberly Bell).  She also decided to contest the validity of the prenuptial agreement she had signed six years earlier. 

During the trial concerning the validity of the agreement, Bonds testified that he told his wife-to-be that he would not marry her unless she agreed to waive any right to his income during their marriage. 

He also insisted that his wife understood perfectly well what he was proposing. In contrast, Sun testified that in 1987 and 1988, her English was poor and that she often did not understand what Bonds was talking about.  She also claimed that she did not learn about the agreement until shortly before she was asked to sign it.

The trial judge found Bonds’ testimony more credible and ruled that the agreement was valid.  On appeal, the intermediate appellate court ruled by a split decision that Sun’s lack of legal assistance and the imminence of the wedding made her consent highly questionable, and remanded the case to the trial court with the direction that it needed to give much greater weight to such factors.  The majority made it clear that Bonds had to overcome a strong presumption of invalidity due to the circumstances of this case.  In re Marriage of Bonds, 71 Cal. App. 4^th 290, reh. den., 72 Cal. App. 4^th 94d (1999).

Bonds appealed this decision to the Supreme Court of California, which on July 21, 1999, agreed to hear the case.  The following year, in the case styled, In re Marriage of Bonds, 5 P.3d 815 (Cal. 2000), the state’s highest court ruled unanimously that the evidence at trial was sufficient to establish a voluntary waiver on the part of Blanco (or Sun Bonds, as she preferred to be called). Contrary to the holding of the appellate court, the Supreme Court found that the lack of independent counsel was not dispositive, given the lack of evidence of coercion and no real proof of a lack of understanding on the part of the plaintiff.  Consequently, it reinstated the judgment of the trial court.

The decision was handed down on August 21, 2000, a day on which Bonds’ Giants defeated the Florida Marlins 6-0 in San Francisco.  Bonds was in the line-up that day and went one-for-three with a walk and a run scored.  Sun petitioned for a rehearing, but on October 18, after the division champion Giants were eliminated in the National League playoffs by the New York Mets, the State Supreme Court denied this request.  By the date of the final decision, Bonds had arranged to have his marriage to Sun annulled by the Catholic Church and had remarried.  And, at least according to the book Game of Shadows, he had also just finished the second season in which he used anabolic steroids.

From a national perspective, the California Supreme Court’s Bonds decision was just one of several decisions handed down at the end of the twentieth century that appeared to represent a growing acceptance of the legitimacy of prenuptial agreements, which had historically been looked upon with disfavor.  However, not everyone viewed this as a positive development.

Bonds’ “pre-nup” case was followed with great interest in California, and public sentiment was clearly on the side of his ex-wife.  (Bonds’ growing reputation for moodiness and surliness in his dealing with the baseball public hardly helped here.)  In the next session of the California legislature, State Sen. Sheila Kuehl (D-Santa Monica and in another life, the actress who played the zany Zelda Gilroy on the 1960’s sitcom, The Many Loves of Dobie Gillis) introduced a bill that provided that for prenuptial agreements to be valid, both parties to the agreement had to be represented by their own lawyers. 

Kuehl’s act also required that parties to such an agreement be given at least seven days to consider the proposal and that the agreement be explained to the partner in his or her native language (which in Sun’s case would have been Swedish).  Kuehl made no effort to deny that her bill was inspired by the outcome of the Bonds case, and in fact cited it repeatedly to garner support for the proposed act.  The bill easily passed both houses of the California legislature and was signed into law on September 12, 2001, by Gov. Gray Davis.  In its story reporting the passage of the bill the following day, the Los Angeles Times described it “as legislation sparked by the bitter 1994 divorce of baseball slugger Barry Bonds and the growing popularity of such accords.”  The statute is currently codified at Cal. Fam. Code §1615 (2009).

Although the legislative change came too late to help Sun Bonds, the ex-wife did receive some vindication on October 9, 2001, when a California appellate court in San Francisco ruled that the pre-nuptial agreement notwithstanding, Sun was still entitled to half the value of the two homes and an undeveloped lot that Bonds had purchased during their marriage. According to the San Francisco Chronicle, her interest in the three parcels was at least $1.5 million. After this decision, Bonds reportedly settled with his ex-wife for an amount in excess of the Chronicle’s estimate in exchange for her promise to stop suing him.

The October 9, 2001 ruling came only two days after the PED-fueled slugger blasted his seventy-third home run of the 2001 season, which remains, albeit shrouded in scandal, the all-time record.  But thanks to Barry Bonds, in California it is now far more difficult than it used to be to coerce a vulnerable spouse-to-be into signing a prenuptial agreement.  Also, since 2001, a growing number of jurisdictions have adopted a similar statute, or, as it might be called, “the Barry Bonds rule.”

Although Arthur is frequently seen as Millard Fillmore primary competition for the title of “Most Obscure President in U.S. History,” the circumstances of his birth have raised questions eeriely similar to those asked about President Barack Obama by the birthers. 

Before 1880, Chester Arthur was a minor New York City politician who was a protégé of Sen. Roscoe Conkling of the Empire State.  Although he was a prominent lawyer, he had never run for, let alone held, elective office at any level.  Nevertheless, at the 1880 Republican Presidential Convention in Chicago, he was added to the Republican national ticket as the running mate of presidential candidate James Garfield.  Arthur was selected to balance the slate geographically — Garfield was from Ohio, part of the Midwest in an era when regions mattered — and to placate Sen. Conkling, a presidential aspirant himself and the leader of the Stalwart faction of the Republican Party.

In 1871, President Grant, with Conkling’s blessings, had appointed Arthur to the lucrative position as Collector of the Port of New York.  However, seven years later, he had been removed from that position by President Rutherford B. Hayes, as part of a presidential effort to crack down on the spoils system.  Although there was no evidence of real corruption at the custom house while Arthur was Collector, it was also clear that Arthur had no objections to padding the Collector’s payroll with loyal Republicans. Once elected, Arthur remained loyal to Conkling and the spoils system, and he and Garfield clashed repeatedly on questions of federal appointments, which led Garfield to ban Arthur from the White House.

However, on July 2, 1881, Garfield was assassinated by Charles Guiteau, a deranged supporter of Conkling, who, after shooting the president, shouted, “I am a Stalwart of the Stalwarts . . . Arthur is president now!”  Guiteau’s two shots actually did not prove to be fatal, and Garfield lived until September 19, when he was finally done in by a combination of infection and poor medical care. 

Although he was a product of, and, at least initially, a supporter of the spoils system, as president Arthur actually turned out to be fairly progressive and a strong supporter of civil service reform.  In 1883, he signed the Pendleton Act, which established the first Civil Service Commission.  Although he sought his party’s presidential nomination for 1885, he was not renominated by the Republican Party.  Even so, he left office widely respected by members of both parties.  Even Mark Twain begrudgingly acknowledged that “it would be hard indeed to better President Arthur’s administration.”

Questions of Arthur’s eligibility for the nation’s highest office surfaced during the 1880 campaign.  Arthur was the son of an Irishman who emigrated first to Canada and the then to the United States, and who finally became a naturalized United States citizen in 1843, fifteen years after his son Arthur’s birth in 1829.  Arthur’s mother was a United States citizen born in Vermont but whose family emigrated to Canada where she met and married her husband.  By the time of Arthur’s birth, his parents had moved back to Vermont. 

The controversy over Arthur’s citizenship status centers around the place of Arthur’s actual birth.  By one account he was born in his family’s home in Franklin County, Vermont.  If this was true, then he was clearly a natural born citizen.  On the other hand, the competing account has it that he was born during his pregnant mother’s visit to her family’s home in Canada. 

If the latter story is true, then Arthur was technically foreign-born, and in 1829, citizenship in such cases passed to the child only if the father was a United States citizen, and, of course, at this point Arthur’s father was still a citizen of the British Empire.

The principal advocate of the “born in Canada” theory was Arthur’s fellow New York lawyer Arthur P. Hinman who was hired in 1880 by the Democratic Party to investigate Arthur’s ancestry.  Hinman initially undermined his owned credibility by embracing an argument that Arthur was himself born in Ireland and didn’t come to the United States until he was fourteen years old.  That story was patently false and easily disproven. 

However, Hinman later discovered acquaintances of the Arthur family in Canada who told him the story of Arthur’s accidental Canadian birth.  Convinced that he now had proof of Arthur’s foreign citizenship, he published his findings in 1884 in a short book entitled How a Subject of the British Empire Became President of the United States.  Hinman’s book appeared near the end of Arthur’s presidency, and no official action was ever taken on the basic of his alleged evidence.

Arthur himself always insisted that he was born in Vermont, but he may not have known the place of his birth. By the time he was six years old, his family had left Vermont for New York, and he never lived in the Green Mountain State again.  It is possible that his parents considered the circumstances of his Canadian birth to be personally embarrassing and never shared the details of the story with him.

An investigation by the Boston Globe earlier this year — no doubt inspired by the Birther controversy — confirmed that there are no official records regarding Arthur’s birth in either Vermont or in Canada.  See Boston Globe, “Chester Arthur Rumor Still Lingers in Vermont,” August 17, 2009.

We will probably never know if Arthur was really eligible to be president of the United States in 1881.

Article II, Section 1, provides, in part:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

Unfortunately, neither the Constitution itself nor the documentary record pertaining to its drafting and ratification in the 1780’s provides any additional insight into what the framers specifically meant by the phrase “natural born citizen.”

Because of the absence of specific standards, Congress has been forced to define what the phrase means, which it has done in a series of citizenship and immigration acts dating from 1790.

Certain factors definitely make one a “natural born citizen.” It has always been accepted that any white person, and since 1870, any person of any race, actually born in the United States is eligible to be elected president once they reach the age of 35 and have been 14 years a resident. (Male gender was never a prerequisite, even when women were denied the right to vote. That is how Belva Lockwood could run for president in 1884 as the candidate of the National Equal Rights Party.)

It has also been accepted from the beginning that a person born outside the United States with two citizen parents is a natural born citizen. Although no president has ever fallen into this category, a number of actual and potential presidential candidates have, including turn-of-the-last-century Supreme Court Justice David Brewer (born in the Ottoman Empire), nineteenth-century Republican politician John S. Wise (Brazil); Michigan Governor George Romney (Mexico), and 2008 Republican nominee John McCain (Canal Zone).

What is less clear is (1) what constitutes the United States for “born in” purposes, i.e., which territories, if any, are included, and (2) what is the citizenship status of an individual born outside the United States with only a single citizen parent. Congress has answered these questions differently in different eras.

Had Barack Obama actually been born in Kenya, as some Birthers claim, he would have fallen into the category of having been born outside the United States with one citizen parent and one alien parent. (Of course, he wasn’t born in Kenya; he was born in Hawaii, after it had become the 50th state.)
Originally, citizenship in such situations passed through the father. If the father of a foreign-born individual was a United States citizen, then the individual was a “natural born Citizen” regardless of the nationality of his or her mother. To become a U.S. citizen, a foreign-born or “outside the U.S.-born” individual with a citizen mother and an alien father had to go through the naturalization process and was not eligible to run for president of the United States.

This was a feature of the original American naturalization statute of 1790, and was a provision that was retained throughout the nineteenth century and through the first third of the twentieth. In fact, the United States citizenship of the mother could not be passed on to a foreign-born child until Congress changed the naturalization laws in 1934.

At the time of Barack Obama’s birth in 1962, 8 U.S.C.A. § 1401 provided that

The following shall be nationals and citizens of the United States at birth:
* * *
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years . . .

This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date . . . .

Were Obama actually born outside of the United States, then it would appear that under this statute he would not be a “citizen of the United States at birth.” His father was unquestionably a citizen of Kenya, then part of the British Empire, and his eighteen-year-old mother could not have lived in the United States for a minimum of five years after obtaining the age of fourteen. (She could not have done this because she was only 18 when he was born on August 4, 1961. She did not meet the five years “after attaining the age of fourteen years” requirement until the following November 29, when Obama was almost four months old.) Consequently, under this counterfactual scenario, Barack Obama would appear to be ineligible to be president.

However, on November 14, 1986, when Obama was twenty-five years old, Congress enacted an amendment to the above statute, which substituted “five years, at least two” for “ten years, at least five” in the language describing the length of time the citizen parent had to live in the United States after age fourteen. This new standard, unlike the one adopted in 1952 and in effect in 1962, was met by Obama’s mother when she turned 16, more than two years before the birth of her son.

Moreover, according to it terms, this amendment, like the section itself, applied retroactively to anyone born after December 24, 1952, which, of course, included Barack Obama.

Whether or not Congress has the power to reclassify someone as a “United States citizen at birth” after twenty-five years of being classified as not “a United States citizen at birth” is an interesting constitutional question. Could Congress, for example, make the Austrian-born Arnold Schwarzenegger, who had no U.S. citizen parents, eligible to run for president by adopting a statute that defined “natural born citizen” as someone born after gestating in his biological mother’s womb? Presumably not, but why wouldn’t that logic apply to the 1986 amendment? Is it possible that a person such as our hypothetical foreign-born Obama who had a too-young citizen mother could be a citizen of the United States at birth (under the revised statute) but nevertheless not eligible under Article II, Section I?

Fortunately, we do not have to address the question of the retroactive application of the 1986 amendment and its relation to Article II, Section I, because President Obama really was born in the United States.

However, the birthers have provided us with a very interesting civics lesson regarding presidential eligibility, and now most of us know much more about Article II, Section I than we ever did before.

Some people dislike jazz.  To them, the melody of the song gets lost in a blizzard of noise.  Jazz aficionados hear something different.  They are listening to what the musicians do in the spaces in between the notes of the melody.

The United States Constitution creates a positive space for government.  The federal government is delegated specific powers.  The governments of the states retain those powers not delegated to the federal government or otherwise retained by the people.

However, the United States Constitution also creates negative space for government.  What happens when a changing world, changing social values, or new technologies cause the public to demand an expansion of government into spaces that fall in neither the delegated powers of the federal government nor the traditional realm of the states?  Typically in our nation’s history, this has occurred in response to a crisis that implicates a national economic interest or a national security interest, making reliance on the individual state governments for solutions inadequate.  Examples would include the Great Depression and the response to the September 11 attacks.  In these situations, the federal government rushes in to fill the negative space, despite the fact that a strict reading of the Constitution does not provide for the federal authority to do so.

In the controversy surrounding the chartering of the Bank of the United States, shortly after the Constitution was ratified, two of the Framers grappled with this dilemma.  The fact that they came to different conclusions continues to influence the debate over federal power today.   James Madison and Alexander Hamilton agreed that the delegated powers of the federal government should be interpreted broadly, but they differed in their view of whether the Constitution left any negative space for the federal government to expand beyond those powers expressly delegated to it.

Madison felt that the outer limits of federal government power were set by the understanding of the people at the time that the Constitution was ratified.  Those boundaries could not be expanded short of a constitutional amendment.  In contrast, Hamilton seems to have believed that these limits could be loosened or lifted through precipitous action by the federal government, explained and defended to the public, so long as the public demonstrated their approval of the new boundaries.  Hamilton’s conception of sovereignty allowed for the possibility that later generations of Americans might approve of a stronger national government than was originally envisioned, if they were persuaded that the extra authority was merited.

 Hamilton’s proposal to charter a national bank, and his adoption of the principle that even a federal government limited in its ends could employ tremendous discretion to achieve those ends, flowed naturally from his view that the Constitution left the federal government room to grow when acting in response to a truly national need.  Madison believed that the proposed bank was inconsistent with the original assumptions concerning the proper ends for which the newly created federal power would be used.  Madison thought it had been settled at the time of ratification that the federal government lacked the power to charter a national bank.  As a result, Madison came to align himself with the Ant-Federalists in opposition to the bank, and he would eventually articulate the States Rights political philosophy that continues to resonate with many Americans. 

In our constitutional system, the Supreme Court serves as the ultimate arbiter of whether an attempt by the federal government to expand into negative space is permitted.  In his recent book, Packing the Court, historian James MacGregor Burns paints a picture of a Supreme Court that has exercised this role in a reactionary fashion.  That the Court is able to play this role at all is solely the result of the bedrock doctrine of judicial review laid down in Marbury v. Madison.  Burns’ thesis is that this seminal case was wrongly decided.

Burns’ view of American history is sympathetic towards presidents who engage in the type of “transforming leadership” necessary to adapt the nation to new challenges and changing environments.  He criticizes the Supreme Court over the course of our nation’s history for often frustrating presidential attempts at transformative leadership through the illegitimate (in his eyes) vehicle of judicial review.  His book is an indictment of a Supreme Court that serves to further reactionary elements in our society rather than to respond to popular movements for reform (with the exception of the Warren Court, which Burns praises – inconsistently – for exercising judicial review in order to expand the scope of individual rights).

Although Burns views history through the traditional dichotomy of liberalism versus conservatism, we should recognize that the search for negative space is not an ideological issue.  The doctrine of the unitary executive, espoused by many of the leading lawyers in the Bush Administration as the justification for broad executive branch power after September 11, and still embraced by many leading conservative thinkers, is nothing if not a declaration that the Constitution leaves a great deal of negative space for the President to operate in in matters of national security.  In its cases dealing with the Guantanamo Bay detainees thus far, the Supreme Court has not foreclosed the possible existence of an expansive executive power so much as insisted that any unprecedented movement of executive power into spaces left open by the Constitution must come with the assent of congress.

Burns is correct that the Supreme Court has often used judicial review to deny attempts by the federal government to expand beyond the bounds that Madison thought were settled in 1789.  Early in the nineteenth century, Chief Justice John Marshall interpreted the federal sphere quite broadly.  However, later in the Court’s history the justices would rely upon doctrines of federalism to promote a political philosophy where state governments received first claim on the ability to expand into any negative spaces.  As our national economy grew larger and more intertwined, and as the role of the United States as a global superpower required a stronger federal hand in dealing with foreign nations, it became more difficult to argue that state governments could successfully occupy all of these open spaces.  The Great Depression, and two Wolrd Wars, forced the Court to recognize this reality.

In more recent years, the Supreme Court has relied upon theories of interpretation, most notably textualism, as the vehicle for denying the federal government the ability to expand its role beyond delegated bounds.  These theories have the benefit of applying without regard to whether state governments are capable of meeting the same demands that the federal government is seeking to satisfy, and therefore these theories have been more successful than federalism as a means of policing the expansion of the federal sphere in the modern economy.  However, the subjective way in which interpretive theory is inevitably applied has become apparent to all observers of the Court, with the consequence that the Supreme Court’s use of textualism has only served to increase public awareness of the Court’s growing institutional power and also of the ideology of its members.  Persons across the ideological spectrum share a discomfort with these developments.

There are early hints that persons seeking to deny the federal government the negative space in which to grow will next turn to moral philosophy, such as the theory of subsidiarity in the Catholic faith, as a vehicle for policing the federal government.  Whether or not these early efforts will mature into a coherent mode of constitutional interpretation remains to be seen.  If this effort fails, there will doubtless be other arguments advanced by those who seek to deny the existence of negative space in our Constitution.

What is undeniable is that the Constitution of 1789 was not written for a United States that had a complex and integrated national economy and that was a global superpower.  As the President and the Congress seek to navigate in such a world (and indeed, as the general public demands that they do so), some people will see only chaos and a lack of legitimate authority.  Other people will see an attempt to create something out of open spaces.

First, Klarman noted that, contrary to typical practice, the justices facing the Brown decision did not take a straw poll at their first conference discussing the case.  In fact, as he notes, by his count, there would have been only four votes to overturn Plessy at the beginning and nothing near the unanimity that the Court presented in its decision the following year.  What was the import of not taking this poll?  As Klarman notes, this allowed the justices to change their mind and to preserve fluidity in their thinking.  In other words, the justices did not lock themselves into an opening position that then they would feel necessary to defend throughout the discussions. 

The impact of publicly locking yourself in to an opening position is problematic, as we know. 

We see this in client counseling, when clients lock themselves into a perceived position from which we often must counsel them to see a different reality.  We see this in litigation, where, as Michael Moffitt has written, the complaint and response locks disputing parties into extremes.  And we see this in mediation, where the mediator often must perform reality testing so that clients and their counsel can gracefully change their position.   It’s pretty amazing to realize that the outcome of Brown (and arguably the path of civil rights following it) happened because somebody thought carefully about the process used.

A second interesting note in the Brown case was Justice Black’s importance to the case and his role reversal – his ability to truly understand white Southerners in a way that no other justice could.  Black was the only justice from the Deep South, a former KKK member, and the justice who knew best that segregation was based on the opinion that blacks were inferior (and not the professed justification of segregation serving both populations equally).   Because Justice Black could, better than anyone else, dismiss the arguments from the Deep South, he could carry more weight with his colleagues on this point.

Finally, one last irony.  One of the most hilarious aspects of Professor Klarman’s talk was hearing from him exactly how much this collection of justices disliked one another.  I won’t do the speech justice to only give one tidbit but here is one I loved:  When there was a particularly untalented lawyer in front of the court, Justice Douglas apparently used to bait Justice Frankfurter by sending a note to him that Douglas had heard this lawyer received one of the highest grades in Frankfurter’s classes at law school.  It is ironic that the members of this Court, who stunningly disdained one another at best, were able to reach a unanimous decision in this momentous case.

Cross posted at Indisputably.

To call this clause of the Constitution “overlooked” is an understatement.  The authors of the Federalist Papers spent little or no time discussing the meaning of this clause.  The Supreme Court, when asked to interpret this clause, has generally admitted that it doesn’t have the slightest idea what it means—with the consequence that the Court has rendered the clause irrelevant and left it devoid of meaning.  This is a shame because, properly understood, I believe that this clause is one of the most important in the Constitution.

The federal government guarantees every state a Republican form of government.  What does the word “republican” mean?   It certainly does not refer to a specific political party.  Political parties did not even exist in 1789.

Today’s school children are generally taught that the clause is intended to guarantee that state governments use the mechanics of representative democracy over the mechanics of direct democracy.  This interpretation is incorrect.  While the Framers often wrote of the benefits of a political system whereby voters elected representatives who would make important decisions on their behalf, especially in instances where the geographic territory to be governed was large, the Framers never expressed the opinion that the direct exercise of democracy by the people should be prohibited.

Indeed, this incorrect interpretation of the clause is dangerous because it has led some observers to question the constitutionality of state-wide voter initiatives altogether, such as the ones that regularly go before the voters in California.  These types of initiatives may be unwise as a means of using direct democracy to determine the policies of state government.  But the use of state-wide initiatives of this type is certainly constitutional.

So if the “Republican form of government” clause does not prohibit the use of direct democracy as a means of state government, what is its purpose?  Simply stated, the clause prohibits the people of any state in the Union from amending their state constitution in order to adopt a monarchy or an aristocracy.

Recall that, prior to 1789, national sovereignty had always– with few exceptions– been lodged in either a monarchy or an aristocracy.  It was a novel idea to declare in 1776 that sovereignty belonged in the hands of the people.  Never before in human history had a nation of the size of the United States declared its intention to recognize its entire people as the ultimate sovereigns.  However, after the Articles of Confederation were adopted following the Declaration of Independence, the national economy was reduced to a shambles and our young country’s national security was questionable.  By 1789 it was natural to fear that the population in some states might eventually backslide and seek a return to a monarchy as a way of restoring public confidence and preserving order.

What Article IV does, then, is to deny to the people of the states the sovereign power to choose monarchy as a form of government.  This clause forever circumscribes the freedom of the people of a state to choose the way in which they govern themselves.  The denial of state power in this regard is necessary, because leaving the residents of a particular state with the absolute freedom to choose any form of state government would be an infringement upon the sovereignty of the people of the nation as a whole.

In fact, by stating that the federal government will “guarantee” a republican form of government, the Constitution makes it clear that the federal government is granted the power to enforce the prohibition on monarchy by force of arms if necessary.  Article IV makes it clear, even more explicitly than the Supremacy Clause in Article VI does, that the sovereign power of the people as a whole, as expressed through the federal government, is supreme over the sovereignty of individual states.   

If one state were to institute a monarchy, it would destabilize the entire Union of states.  In 1789, monarchies were viewed as inherently militaristic.  Monarchies place the decision of whether to resort to force within the hands of one single individual, where it is not subject to any checks or balances.  For a king, an increase in personal power and an expanded border provide mutually reinforcing temptations for invading your neighbors.

If the residents of one state were to adopt a monarchy as their form of government, neighboring states would feel threatened.  Monarchies require standing armies to maintain the king’s authority, and in order to redress an imbalance in power neighboring states would be forced to follow suit.  An alliance between two state monarchies would inspire neighboring republican states to enter into mutual defense pacts.  Imagine a United States with fences and checkpoints at the borders between the states.

The best interests of the nation as a whole require the residents of each state to cede away a portion of their political sovereignty to the nation: the ability to choose any form of state government that they desire.

This has important implications.  It implies that Lincoln was correct when he declared that the southern states had no right to secede from the Union.  While the text of the Constitution is silent on the right of secession, Article IV is an example of an overall constitutional structure that denies state residents the power to exercise political sovereignty within their own borders in a way that threatens national unity as a whole.  The denial of an absolute state power to secede is no greater a restriction on state sovereignty than the denial of an absolute state power to adopt a monarchy.

Some scholars have argued that Lincoln had to reinterpret the Constitution in order to impose a federal government of all the people that was supreme over the states.  In actuality, Lincoln was merely being faithful to the Constitution’s original design.

This understanding of Article IV Section 4 also implies that the Supreme Court was correct, in U.S. Term Limits v. Thornton, when it ruled that it was unconstitutional for states to amend their constitutions in order to impose term limits on their residents elected to federal office.  The Supreme Court’s majority opinion in that case relies upon a tortured interpretation of the various qualifications clauses of the Constitution, and the majority opinion raises Article IV Section 4 just long enough to dismiss the clause as irrelevant.  However, in the end the Court gets the basic point right by holding that state constitutions cannot impose term limits for federal office.

In his dissent in that case, Justice Thomas asserts that the Constitution’s authority depends on “the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.”  Had the majority not overlooked Article IV Section 4, the majority opinion would have had a greater textual basis to rebuke Justice Thomas.  Contrary to Justice Thomas’ assertion, the Constitution does take away from state residents the absolute power to control their own form of state government in cases where the national political structure is implicated.  The sovereign power to make decisions affecting the political structure of the nation as a whole rests with the people of the nation as a whole, not with the people of one state.

The text of the U.S. Constitution contains several clear statements that prohibit the states from frustrating the economic unity of the nation.  Economic protectionism is clearly precluded by the commerce clause, the privileges and immunities clause, and the full faith and credit clause (note that the latter two are also located within Article IV).  The fact that the text of the Constitution is far less clear about the predominance of federal interests when it comes to political unity has been the source of great debate and conflict during our nation’s history.

The debate between centralized power (sovereignty with a federal locus) and decentralized power (sovereignty with a state locus) goes back to the Federalist debate with the Anti-Federalists.  Even Madison and Hamilton themselves possessed contrary views on the matter (Madison generally favored decentralization while Hamilton strongly favored centralized government).  Commenting on the internal inconsistencies within the Federalist Papers on this topic, and the text’s sudden lurches between advocating a strong federal government at one point and then arguing in favor of state power moments later, some scholars have accused the Federalist Papers of reading as if its author was a paranoid schizophrenic.

Is it any wonder, then, that our nation’s history reflects this unresolved attitude toward who holds ultimate sovereignty?  The primacy of the federal political power over state sovereignty has been advanced by the jurisprudence of Justice John Marshall, the Civil War policies of Abraham Lincoln, and the New Deal legislation of Franklin Roosevelt.  The absolute sovereign power of the states to make political choices within their borders has been advanced by Jefferson and Madison in the Kentucky and Virginia Resolutions, by the secessionists during the Civil War, and by the leaders of the States Rights movement in the Twentieth Century.

Article IV Section 4 should remind us that under our Constitution the sovereignty of the people is a national sovereignty.  No state government, and no individual state population, has the power to take actions that threaten the political unity of the United States.  The federal government is superior to the states because it is only through a federal government that a national people can exercise their sovereignty.

No one denies that the Constitution forces the states into an economic union, even when they might prefer state protectionism.  Nonetheless, to this very day, many people still argue in favor of an absolute state sovereignty to decide political matters within their own borders.  By consistently overlooking the “Republican form of government” clause, we obscure the fact that the constitutional text imposes a political union on the states in a way that necessarily places a limit on individual state sovereignty.  By rescuing Article IV Section 4 from obscurity, we can resolve the debate over federal supremacy once and for all.

After nine years of work, Samuel Johnson published a major dictionary of English words in 1755.  One of the key features of A Dictionary of the English Language was that Dr. Johnson used quotations from books where a particular word was used to illustrate the word’s meaning.

Why should a law school be interested in Samuel Johnson’s dictionary and his 300^th birthday?  On the way to work this morning, I heard a BBC radio program (aired on NPR) about Dr. Johnson’s dictionary.  On that show, the commentators discussed how Dr. Johnson’s dictionary is important to the United States Constitution because it was the dictionary most often used during the time the Constitution was drafted.  Jack Lynch also refers to Dr. Johnson’s influence on documents related to the founding of this country in his 2005 New York Times article.  For further reading on this topic, Henry Hitching’s book, Dr. Johnson’s Dictionary:  The Extraordinary Story of the Book that Defined the World, looks promising.

Does anyone know of examples where legal advocates have cited Dr. Johnson’s dictionary to interpret the law?

The road to Constitution Day began in the 1930s when William Randolph Hearst used his chain of newspapers to call for a holiday honoring naturalized American citizens.  Congress responded in 1940 by designating the third Sunday in May “I Am an American Day.”  Then, in 1952, President Harry Truman signed a bill changing the day to September 17 and the name to “Citizenship Day.”  In 2004, with the passage of an amendment to the spending bill sponsored by Senator Robert Byrd, the holiday was again renamed, this time to “Constitution Day and Citizenship Day.”  Those interested in seeing what Congress took to be the purpose of the day, may consult 36 U.S.C. 106.

Looking Backward is the story of Julian West, a man who falls asleep in 1887 at a time of great industrial strife and who wakes up in the year 2000 when the problems of industrialism have been solved by a collectivist government that manages all industrial production for the benefit of society as a whole.  At the time of the book’s publication, Bellamy was a 38-year old writer and one-time lawyer from western Massachusetts.  Looking Backward quickly turned out to be one of the best-selling books written in the United States in the nineteenth century, selling several hundred thousand copies in the years immediately following its publication.  It was translated into dozens of different languages and was also a publishing sensation in Europe.

The novel also prompted an international debate over both Bellamy’s vision of the future and his contemporary political views. 

(Bellamy supported the Populist Party in 1890, and many so-called “Nationalist Clubs” were established to advance his ideas.)  In addition, novels by other writers continuing the story of Julian West in the twenty-first century began to appear almost immediately. 

At least six “sequels” were published in the United States in 1890 alone:  John Bachelder, A. D. 2050: Electrical Development at Atlantis; Donald McMartin, A Leap into the Future, or How Things Will Be: A Romance of the Year 2000;Richard C. Michaelis, Looking Farther Forward; W. W. Saterlee, Looking Backward And What I Saw; C. H. Stone, One of Berrian’s Novels [Berrian is a novelist of the future in Looking Backward]; and Arthur Dudley Vinton, Looking Further Backward.

Some of these sequels — the ones by McMartin and Stone, for example — embraced Bellamy’s vision of the future and embellished the favorable depiction of life in socialistic 2000.  The other sequels cited sought to paint Bellamy’s vision of the future as a dystopian nightmare.   

Additional sequels by other writers were a fixture of the next two decades.  Ludwig A. Geissler’s, Looking Beyond: A Sequel to “Looking Backward” by Edward Bellamy, and an Answer to “Looking Further Forward” by Richard Michaelis (1891) was a sequel to a sequel.  In Geissler’s story, the unappealing aspects of Bellamy’s year 2000 reported in Michaelis’ book are revealed to be nothing more than occurrences in one of Julian West’s bad dreams. The collectivist future was in fact a utopia, and its shortcomings were only imagined.  By the end of the novel, the technologically advanced Martians have decided to abandon their previous policy of ignoring the Earthlings because they now believe that they can learn lessons from their planetary neighbors.

Other Looking Backward sequels included Conrad Wilbrandt’s Mr. East’s Experiences in Mr. Bellamy’s World (1891, and published the previous year in German in Germany); J. W. Roberts, Looking Within: The Misleading Tendencies of “Looking Backward” Made Manifest (1893); Rabbi Solomon Schindler, Young West: A Sequel to Edward Bellamy’s Celebrated Novel “Looking Backward”(1894); an anonymously published British version, My Afterdream: A Sequel to the Late Mr. Edward Bellamy’s Looking Backward (1900); and Harry W. Hillman, Looking Forward: The Phenomenal Progress of Electricity in 1912 (1906), the latter a pro-Bellamy novel that reveals that mass electrification is the key to a peaceful, collectivist future. According to literary historian Krisham Kuman, at least sixty-two novels based on Looking Backward were published in the United States between 1888 and 1900.

All of the sequel writers made use of Looking Backward’s story line, and most employed Bellamy’s main characters: Julian West, the man from 1887, Dr. Leete, the twentieth-century scientist who awakens West and serves as his guide to the future, and Edith Leete, the doctor’s beautiful daughter with whom West falls in love (and who turns out to be the great-grand-daughter of the fiancé that he left back in 1887).  As far as I can determine, none secured a license to do so from Bellamy.

Bellamy himself re-entered the fray in 1897 with his own sequel to Looking Backward, entitled Equality, in which he addressed many of the issues raised by the authors of the less than sympathetic sequels, including the future of education and women’s rights.  Unfortunately, Bellamy’s own sequel was not nearly as successful as the previous volume, and he died of tuberculosis the next year at the age of 48.

Although the pace slowed in the twentieth century, there were almost one hundred  Looking Backward  sequels, prequels, and re-imaginings published after 1900, apparently culminating in the off-beat Edward Bellamy Writes Again, a 1997 novel by New Age Christian writer Joseph R. Myers who sought to combine the insights of Bellamy with those of the American psychic Edgar Casey.  For a more detailed discussion of the history of Looking Backward and its sequels, one can consult Justin Nordstrom, “Looking Backward’s Utopian Sequels, Fictional Dialogues in Gilded Age American Thought,” Utopian Studies, Vol. 18 (2007) and  Krishan Kuman, Utopia and Anti-Utopia in Modern Times (1997), and the works cited therein.

The copyright point here is that the ability to use Bellamy’s story line and characters made it possible to have a rich ongoing debate in the world of fiction over the merits of Bellamy’s vision of the future. Had Bellamy tried to control his characters Julian West and Edith Leete in the same manner that J. K. Rowling has controlled Harry Potter and Hermione Granger, or J. D. Salinger wishes to control Holden Caulfield, the intellectual life of late nineteenth- and early twentieth-century America would have been much less rich. 

I’m not sure to what extent the Copyright Act of 1870 (in force when Looking Backward was published) protected literary characters.  Even if it did provide protection, Bellamy would have been unlikely to have used it to suppress the publication of the many sequels to his work.  As someone more interested in a better world than his own financial enrichment, he was no doubt delighted that his novel had inspired so many of his supporters and his critics to pick up their pens and continue his story.  He certainly made no effort to prevent their publication.

Legal protection against verbatim copying of the text was enough for Edward Bellamy; I don’t see why it shouldn’t be enough for Miguel de Cervantes and J.D. Salinger as well.

Some observers of the case have focused on its unusual grant of the plaintiff’s request for an injunction — this is a rare instance of U.S. law allowing a prior restraint on publication.  Other observers have debated the intersection of First Amendment rights and copyright protections implicated by the lawsuit.  In contrast, when I heard about the case, my thoughts turned to Don Quixote.

 Through end of the sixteenth century and into the beginning of the seventeenth century, the appropriation of characters and plots from earlier authors was a common literary practice.  In England, Shakespeare wrote plays that retold stories that had been told by other playwrights, and other authors in turn recycled Shakespeare’s plots.  Several different versions of Hamlet entertained Elizabethan audiences, although I believe that Shakespeare’s is the only version that survives to our day.

At the same time, in Spain, multiple authors were publishing books that detailed the adventures of the same characters.  Particularly popular were books about Tirant Lo Blanch, a brave knight who rescued fair maidens and battled horrible beasts.  There was no legal concept of ownership of this character in Spain, just as in England there was no concept that Shakespeare “owned” the character of Hamlet.

The first copyright laws date only to 1518, and they took the form of a monopoly that granted exclusive rights to a printer to publish a particular text.  It appears that copyright law was invented as a way of protecting the nascent printing industry.  It originally provided no legal protection to authors at all.  However, that would soon change.

 The novel Don Quixote was published in 1605 by Miguel Cervantes.  It introduced two iconic characters: a comical old man, who thinks himself a chivalrous knight errant, and his humble sidekick Sancho Panza.  It also slyly critiqued a social order in Spain that was dominated by both unproductive nobles and a repressive Catholic clergy.  The book was a huge success, and ten years later, in 1615, Cervantes published Don Quixote Part Two (thus proving that Hollywood did not invent the sequel).

One of the most famous parts of Don Quixote Part Two is its prologue, written in Cervantes’ own voice, which contains a vicious attack on a certain Alonso Fernandez de Avellaneda.  It seems that in the ten year interval between the publication of Parts One and Two, Avellaneda (which is probably a pseudonym) had published his own continuation of the adventures of Don Quixote and Sancho Panza.  In his prologue to Part Two, Cervantes insults Avellaneda without mercy, comparing him, for example, to a madman who commits imaginative and distasteful acts on the rear ends of dogs.

 The brutality of Cervantes’ verbal attack, and its literary quality, transformed Avellaneda’s own version of Don Quixote into an obscure historical footnote, forgotten by all but the most determined students of Spanish literature.  Ironically, a close reading of Avellaneda’s much ridiculed work demonstrates that it has real literary merit in its own right (as discussed here by my former Professor James Iffland of Boston University).  In particular, Avellanda’s version patronizes the character of Don Quixote and treats him as clearly insane, thus impliedly rehabilitating the portrayal of the existing social order in the first book and defending it from a damaging critic.  

Miguel Cervantes’ written attack on Avellanda’s use of his characters was unprecedented because it portrayed the derivative work as an intentional injury to the original author.  Moreover, the severity of Cervantes’ indignation suggested to the reading public that the harm Cervantes had suffered was very real.  People began to think about the rights of authors to control the use of their characters in a different way.  In 1709, the Statute of (Queen) Anne for the first time gave authors a legal monopoly on the reproduction of their work for a set period of years.  Thus was born modern copyright law.

So what is wrong with giving authors the right to control the use of their characters?  Copyright law is intended to provide an economic reward to the original creator, by granting him the legal right to prevent the use of his characters in ways that might diminish their value.  However, copyright law comes with an associated cost.  The fact that Colting’s novel may never be published in the United States illustrates that cost.  All of us bear the opportunity cost of all the derivative acts of creation that will never take place as a result of granting copyright protection to the original author.

It is true that some derivative uses of someone else’s characters are allowed, notwithstanding copyright protection.  Parodies and critical commentaries using established characters are permitted under the First Amendment.  However, this seems like an almost arbitrary exception to the original creator’s exclusive right to control his characters.  Other derivative uses of an established character can enrich our common culture as much as a parody or a critical analysis.

Why allow someone else to write a parody of The Catcher in the Rye, but prohibit a Holden Caufield sequel?  The sequel might be puerile trash, but it just might be a masterpiece in its own right.  Why not allow a third author to write a Holden Caufield opera?  Or a ballet?  I doubt that people would stop reading The Catcher in the Rye.  In fact, the sales of Salinger’s novel might increase.

One answer is that it is unfair for others to use Mr. Salinger’s character in order to make a profit for themselves.  But existing law allows some exceptions for parodies and critical commentaries that can earn a profit for their authors.  In addition, the law now extends the life of copyright protection beyond the life of the creator.  In light of this fact, it is difficult to argue that the protection of the creator’s exclusive ability to enjoy the monetary benefits flowing from his creation is the primary concern of the law.  

Every act of creation should be viewed as a gift from one person to all people.  Should J.D. Salinger have the right to gift our culture with an iconic character, and at the same time claim the ability to dictate how this gift can be used?  Even if his gift is misused or abused by others, Salinger has no moral basis to complain.  Arnold Weinstein, a professor of comparative literature at Brown University, was quoted as follows in a Wall Street Journal article about the case:

 The concept of authorship as a controlling authority is intellectually bogus.  Literature constantly reworks older things – authors send their characters out into the world.

It is only if we view the act of creation as a “sale” from the author to the rest of us that it makes sense to allow the author to place conditions on the use of his creation.

This is the crux of the problem.  Over time, the existence of copyright law has commodified the act of creation.  It is no coincidence that this process began in 1518 with the technological innovation of the printing press.  The commodification process accelerates with each new technological advance.

In our digital age, every consumer can purchase and enjoy a vast universe of cultural artifacts at the press of a button.  However, rarely do we spend any of our time engaged in the act of creation itself.  Most of us spend little or no time each day playing music, telling stories, or painting pictures.  Why should we bother, when it is far more convenient to purchase the creations of others?  The irony is that we are increasingly surrounded by our culture, but at the same time we are increasingly alienated from it.  By treating the creative act as a commodity, copyright law has facilitated this trend.

Today, our children are taught beginning in elementary school that it is illegal to use cartoon characters without first obtaining a license.  When my son was in first grade, I had to assure him that it was not against the law for him to draw pictures of Spider Man with his crayons.  I have no doubt that the holders of copyright in our country, the large media corporations that benefit from the commodification process, are behind the effort to encourage teachers to adopt a curriculum that exposes our children to the fundamentals of copyright law.

We have forgotten that our culture belongs to all of us.  We mistakenly think of “culture” in historical terms, and confine it to dusty books and ancient musical recordings that have “aged out” of copyright protection.  In reality, a culture is how a civilization defines itself in the present day.  We define our place in our contemporary world through stories, song and dance.

The key to profit in a service economy is to convince the public to pay for something that they used to expect to get for free.  We didn’t always pay such a high price for our culture.  The “fair use doctrine” once permitted a broad use of another author’s creations so long as no monetary benefit was received.  The initial success of Salinger’s lawsuit demonstrates how narrow the fair use doctrine has become.  This exception to copyright protection has been under a sustained assault by copyright holders for decades.  Like the western prairie before it, the “public domain” is slowly being fenced in and parceled out to the highest bidder.     

It doesn’t have to be this way.  We should eliminate copyright protection for literary characters.  If J.D. Salinger feels that his beloved character has been ill treated by others, then he can always respond in the same way as Miquel Cervantes: he can publish his own sequel.  Like Cervantes, Salinger can even include a vituperative attack on the upstart artist who has offended his creation.

If the public sees no merit in Colting’s creation, then Colting’s book will soon be forgotten.  However, let the rest of us decide for ourselves whether there is real merit in Colting’s creation.  Copyright law, as it is now structured, allows one artist to deny each and every one of us the possibility of other worthy works of art.

Major League Baseball first came to Milwaukee in November of 1877 when the West End Club of Milwaukee was admitted to the two-year old National League. As a member of the professional League Alliance the previous season, the Milwaukee club had played at its own park at 34th and State, but once it was admitted to the National League—already accepted as the premier baseball league in the United States—its board of directors decided to build a new park closer to downtown.

The new park was constructed on a site on the opposite side of Clybourn from Eckstein Hall which had been used the previous year as the grounds for the Milwaukee Cricket Club. The park itself extended from 10th and Clybourn in a southwesterly direction to Clermont (12th) Street.

The new facility opened on May 14, 1878, with a seating capacity of approximately 4000. In its first home game Milwaukee, off to a slow start with a 1-5-1 record after games in Cincinnati and Indianapolis, knocked off the previously unbeaten Cincinnati Reds, 8-5. The next day’s Milwaukee Daily News carried a detailed account of the game including the following observations: “The weather was all that could be asked, and the crowd in attendance was large. The best classes of our people were represented, and many ladies graced the occasion by their presence. The home club appeared in splendid condition, and were clad in their gray uniform. The Cincinnati boys were exceptionally fine-looking, and made a very jaunty appearance in their white uniforms.”

In its second game, played on the 16th, the locals beat Cincinnati a second time, 12-8, and climbed out of last place for the first time that season. The team unfortunately lost its next three home games before defeating Indianapolis 10-7 on May 25 to close out its initial home stand with a 3-3 record.

Alas, the 1878 season turned out to be anything but a success for Milwaukee. After the May 25 victory, the team lost 37 of its next 48 games and never won more than two games in a row. It finished with a 15-45-1 record, good for last place in the six-team league. Even more disappointing was the team’s home attendance which declined as the season progressed, and as residents of the Cream City lost interest in their losing nine. Poor attendance let the team to reschedule a number of its home games in the parks of its opponent in July and August, and by the end of the season the club had played ten more games on the road than at home.

Although the team was able to fulfill its on the field commitments to the National League, it was clearly teetering toward bankruptcy when it completed play with a 4-3 home field victory over Providence on September 14. In December, the team was expelled from the National League for failing to meet its financial obligations, and in January of 1879, the park’s “grand stands, seats, fences, etc.” were sold at a sheriff’s sale to satisfy an unpaid judgment of $135.61. The park itself was used by amateur teams for the next several years before apparently being abandoned as new facilities became available in the city.

Milwaukee baseball historian Denis Pagot’s detailed account of Milwaukee’s first major league ballpark by can be found here.

First, on Thursday, October 1, at the Alumni Memorial Union, the History Department’s annual Klement Lecture will be delivered by Allen C. Guelzo, Professor of Civil War Era Studies and Professor of History at Gettysburg College. Professor Guelzo’s Klement Lecture will address “Colonel Utley’s Emancipation: The Strange Case of President Lincoln and His Bid to Become a Slaveowner.” The lecture will start at 7 p.m., preceded by a reception beginning at 6 p.m.

Second, on Friday, October 2, from 9 a.m. to 3 p.m. at the Law School, the conference will feature three panels variously addressing aspects of Lincoln’s career and legacy:

• “Lincoln and Politics”: Heather Cox Richardson, University of Massachusetts–Amherst, will be joined on the panel by Alison Clark Efford and James Marten, both of Marquette University.
• “Lincoln and the Constitution”: Michael Les Benedict, The Ohio State University, will participate in a panel that will include Stephen Kantrowitz, University of Wisconsin–Madison, and Kate Masur, Northwestern University.
• “Lincoln as Lawyer”: Mark E. Steiner, South Texas College of Law and author of An Honest Calling: Lincoln’s Law Practice, will speak, along with Joseph A. Ranney, DeWitt Ross & Stevens, and Thomas L. Shriner, Jr., Foley & Lardner, both of whom are adjunct faculty at the Law School.

Advance registration is required for the conference, which is free except for lawyers seeking 4.5 hours of CLE credit ($40). Conference information and a link to the registration page are available here. Particular thanks to Professor Dan Blinka for his work in helping to organize this conference and to Professor Jim Marten, chair of the History Department, for making common cause with the Law School in leading the conference. I hope that many of you will register and join us.

The forty contributors vary considerably by gender, race, and ethnicity.  A majority, but only a majority, grew up in states where legally segregated schools existed at the time of the Brown decision.  Some are old enough to have remembered the day that the decision was handed down; others were born after it was already the law of the land.  But all, to one extent or another, believe that their personal and professional lives have been profoundly shaped by the Brown decision.

I read Law Touched Our Hearts with great interest. 

Although I am too young to remember the actual announcing of the Brown decision — it was handed down two weeks before my second birthday — it was clearly a defining event in my life.  In 1956, my family moved from Giles County, Virginia, where I was born, to White Sulphur Springs, West Virginia.  Two years earlier, after an attempt to integrate the White Sulphur schools in response to Brown, the town and nation witnessed the first post-Brown, anti-integration riot in the United States which led the county school board to cancel the integration experiment after only one week.  In 1956, integration occurred a second time, this time as the result of a federal court order.  My mother started teaching at White Sulphur Elementary that fall, and when I started school there two years later the fate of integrated education seemed anything but certain.  In 1959, we moved back to Virginia where the schools were completely segregated, and I experienced integration a second time in 1964, when Giles County decided to voluntarily close its black schools and incorporate the entire black and white population into a single school system.  (Incredibly, Giles County was the first county in Virginia to do this.)

I was also interested in Law Touched Our Hearts because eight of the contributors are good friends of mine.  I can say, though, without fear of contradiction, that the most moving and most poignant essay in the entire collection is the one written by my Marquette colleague Phoebe Williams.  Phoebe’s essay, titled “Segregation in Memphis,” tells the story of her experiences as an 8-year old school child in segregated Memphis schools when the Brown decision was handed down.  Although the Brown edict was to be adopted with “all deliberate speed,” the “promises of Brown,” as Phoebe puts it “remained unrealized” in Memphis.  There had been no school integration in Memphis when Phoebe graduated from high school in 1963, and there would be none for years to come.  Her first experience with integrated education came when she enrolled at Marquette as an undergraduate.

Phoebe’s essay wonderfully captured the spirit of optimism that arose with the handing down of the Brown decision, as well as the disappointment that accompanied the failure of southern states to live up to its mandates.

I was already familiar with much of Phoebe’s account because of an appearance she made several years ago in a class on the History of the Civil Rights Movement that I was teaching in the College of Arts and Sciences.  I invited Phoebe to come speak to the class about her experiences growing in the era of segregation.  The students in the class were riveted by her presentation, even though most were northerners and had been born more than two decades after the Brown decision.  Many students later told me that Phoebe’s presentation was the highlight of the class.

I strongly recommend Law Touched Our Hearts to anyone interested in the history of civil rights in the United States, but I insist that anyone with any sort of Marquette connection should read Phoebe Williams’ contribution to the collection (pp. 123-134).

Stampp’s 1956 work, The Peculiar Institution: Slavery in the Antebellum South, revolutionized the study of American negro slavery, once and for all dismissing suggestions that the institution was fundamentally benign or that African-Americans quietly acquiesced in their slave status.  No book did more to demolish the moonlight and magnolias view of antebellum southern history. 

His 1965 work, The Era of Reconstruction, 1865-1877, destroyed the myth that white Southerners were the primary “victims” of the Reconstruction years.  This work was among the first to link the Reconstruction period to the modern civil rights movement, which was very much underway during the time that Stampp wrote. 

Stampp was also the author of numerous other historical works, including And the War Came: The North and the Secession Crisis (1950) and America in 1857: A Nation on the Brink (1990).  Over the course of his long career, he won most of the major awards available to American historians.  He was also instrumental in the training of a generation of Southern and Civil War era historians whose own work built upon the insights of their mentor.  His former students include such historical luminaries as William Freehling, Leon Litwak, James Oakes, Joel Williamson, William Gienapp, John Sproat, Robert Starobin, Robert Abzug, and Reid Mitchell.

What is less well known is that Kenneth Stampp was a native of Milwaukee.  He was born in the Cream City on July 12, 1912, the son of Oscar Stampp, a naprapath (chiropractor), and Eleanor Schmidt Stampp, a homemaker.  While his parents were native-born Americans, his grandparents were all born in Germany or Switzerland, and Stampp grew up in a Protestant neighborhood on the north side of Milwaukee where German was spoken as frequently as English, at least until the onset of U. S. involvement in the First World War. 

Stampp attended Washington High School, from which he graduated in 1931 during the depths of the Great Depression.  He began college at Milwaukee State Teachers College (now UWM), but left abruptly in 1933 when one of his professors sought to discourage him from continuing to pursue his goal of becoming a high school history teacher.  (The professor thought that Stampp should pursue a career in elementary education.)

After withdrawing from Milwaukee State, Stampp’s German Methodist father suggested that he enroll in Marquette University instead.  As Stampp later recounted, “My father said, ‘Well, would you like to go to Marquette University?’ I said, ‘I’m not going to that Catholic institution.’ I have to tell you another thing: there was a lot of anti-Catholicism in my family because of their kind of Protestantism. My father had been very anti-Catholic, so I had no trouble saying, “Look, I’m not going to that Catholic college.” 

After briefly considering enrolling in Waukesha’s Carroll College, Stampp instead enrolled at the University of Wisconsin-Madison, from which he received his B.A. (1935), M.A. (1936), and Ph.D. (1942) degrees in history.  His first teaching positions were at the University of Arkansas and the University of Maryland.  He joined the faculty of the University of California in 1946 and remained there until his retirement in 1983, except for stints as a visiting professor at Harvard, Oxford, the University of London, and the University of Munich.

A full transcript of Stampp’s 1998 oral autobiography, which includes the story regarding his boyhood in Milwaukee and his decision not to attend Marquette University, can be found online here.

 In her 1997 book American Scripture: Making the Declaration of Independence, historian Pauline Maier describes the events leading up to July 4, 1776 and points to multiple “other” Declarations of Independence issued by local legislative bodies earlier that year.  Declarations were issued in a variety of places, including Buckingham County (Virginia), Charles County (Maryland), and Natick, Massachusetts.  In most cases, these “other” Declarations took the form of instructions from the citizens of a particular geographic area to their elected representatives in the state legislature or in the Continental Congress.  After recounting the unjustified treatment of the colonies by the Crown, these documents authorize the peoples’ representatives to vote in favor of severing ties with England.  However, some of these Declarations take a different form, such as a judge instructing a grand jury on the source of their legal authority in the absence of a Royal Governor.

Virtually all of these “other” Declarations are similar in structure and content to the “real” Declaration of Independence drafted by Thomas Jefferson and the Committee of Five that was charged with explaining the reasons for the Revolution by the Continental Congress.  Critics of Ms. Maier have questioned whether it is accurate to characterize these written records as if they were in fact standalone Declarations of Independence from Great Britain.  There may in fact be a bit of hyperbole in Ms. Maier’s designation.

 It is nonetheless striking to observe how rapidly the general public in the colonies, spread across a vast and somewhat isolated territory, arrived at a common understanding of both the need to separate from Great Britain and the philosophical justification (morally and politically) for taking such a step.  At the close of 1775, most colonists still sincerely hoped to resolve their differences with the Crown and to remain a part of the British Empire.  More significantly, their elected leaders serving in the Continental Congress shared that hope.  By the time that Thomas Jefferson’s draft of the “real” Declaration of Independence was adopted in July of the following year, the public mood was decidedly in favor of independence. 

Is it possible that a spontaneous change of opinion swept across the colonies over the course of six months?  Admittedly, the publication of Thomas Paine’s Common Sense, and that pamphlet’s rapid circulation, did much to create a common framework for colonists to re-think their relationship with England.  However, there is also evidence that a larger plan was at work.  Maier’s analysis of the “other” Declarations of Independence reveals how a relatively small group of thinkers concluded that revolution was unavoidable and set out to move public opinion away from continued membership in the British Empire. 

 These “other” Declarations served two purposes in furtherance of this plan.  First, they united the general public around a similar factual chronology of abuses and around a similar legal justification that King George had broken his social contract with the colonies.  Second, the instructions transmitted to the elected representatives of the people put pressure on reluctant lawmakers to support independence.  Colonial assemblies where revolutionary spirit was the strongest adopted resolutions that had strikingly similar language, and these resolutions were then circulated among colonies that were dragging their heels.  When the Pennsylvania assembly refused to change its instructions, denying their delegates the authority to vote in favor of independence, the Continental Congress issued a veiled call on the people of Pennsylvania to topple their standing government and replace their legislators (which they did).  This sequence of events has all of the hallmarks of a coordinated modern campaign to generate “grassroots” support for a particular legislative objective.

 The “other” Declarations of Independence were clearly pieces of an overall strategy designed to lay the groundwork for a vote authorizing revolution, although the identity of the main architect of this strategy is lost in the mists of time (Maier sees John Adams’ fingerprints).   Hundreds of years later, Walter Lippmann would revolutionize the way that we understand politics by focusing on the means by which policymakers “manufacture” the consent of the general public.   Today we take for granted attempts by politicians to frame the public debate, to create a compelling narrative, and to otherwise define the way in which the general public will perceive a complex factual environment.  These are the essential components of building public support for government initiatives in a democracy.  Maier’s recounting of the history of the Declaration of Independence reminds us that these tactics are not modern inventions, but have an ancient pedigree.

George Orwell warned us of the need to be vigilant against the abuses of these tactics.  It is easy to be cynical about the perpetual motion machine of think tanks, “talking heads,” and press releases that is designed to influence what we believe and to mold our opinions.  History also shows how the tools of propaganda can be used to divide and oppress people.

However, efforts to mold public opinion can also be a very powerful force when harnessed in furtherance of an expanded public good.  The Civil Rights movement can be viewed in this context.  When the Continental Congress voted to adopt the “real” Declaration of Independence on July 4, 1776, it was the culmination of a concerted campaign to promote a radical expansion of human freedom.  The result was an achievement that we rightly celebrate this week.  Let the fireworks begin!

My summer project was to seek an answer to this mystery.  I chose three books to read that I thought would provide some insight into the ideological fault lines that seem to run through every facet of our daily lives (and indeed seem to run through this very blog).  What follows are the lessons that I have learned.  I suppose other readers might draw different lessons.  My recommendation is that you read these books for yourself.

My first goal was to understand why the “big government” charge persistently leveled by Republicans against the Obama Administration seems to resonate with some people, but not with others.  Some clues are provided by Gary Wills in A Necessary Evil: A History of American Distrust of Government.  Writing some ten years ago, Wills documents the origin and growth of the arguments against “big government” and in favor of individualism and local control over the course of our nation’s history.  Over time, he argues, these disparate strands of thought have coalesced into a more general anti-government creed.  The specifics of this creed – the belief that amateur, local and voluntary conduct creates greater public well being than professional, centralized, and mandatory regulation — resembles the political philosophy currently espoused by many of President Obama’s critics.

Wills locates the roots of the anti-government attitude in some of the myths surrounding our nation’s founding (i.e., that the Revolutionary War was won by amateur minutemen rather than by the more regimented Continental Army).  He also makes the observation that anti-Federalist rhetoric on the meaning of the Constitution is often accepted unquestioningly as an accurate statement of the meaning of the text.  In addition, Wills identifies several disparate strands of American thought that combine with both myth and an ambiguous constitutional text in order to form a more comprehensive anti-government philosophy.  He identifies these strands as being comprised of nullifiers, seceders, insurrectionists, vigilantes, withdrawers and disobeyers.  Wills points to examples of these types on both the left and right side of the political spectrum (including, for example, Vietnam-era student protesters).

While all of these aspects of anti-government ideology have deep roots in our nation’s history, they are nonetheless inconsistent with what I consider to be the two central characteristics of modern America.  A nation governed upon these principles cannot enjoy either a truly nationwide market in goods and services or a global military presence.  Both of these characteristics are dependent upon the existence of a centralized and effective federal government.  In fact, this was the main premise of the Federalist Papers.  A small federal government, or one that is purposefully rendered inefficient or weak, can be attained only at the expense of these characteristics.

Within recent memory, many Republican leaders embraced the ideal of a centralized, specialized and efficient federal government as necessary in the realm of foreign affairs in order to confront a) the menace of Communism and b) the threat of extremist Islam.  Is it any surprise that the voting public would go one step further and accept the idea that a centralized, specialized and efficient federal government is also useful to confront the potential collapse of the nation’s economic system, or the dysfunctional health care system?

In fact, the anti-government posture is a dubious choice as the defining ethos of the Republican Party in the Age of Obama.  In every circumstance, from the anti-Federalists, to the Confederacy, to the Vietnam protesters, the anti-government position has ultimately lost the debate for the hearts and minds of the broader population.  This is not a roadmap for electoral success.  Moreover, when the Republican Party does succeed in recapturing control of the federal government (as it inevitably will), the Party may find it difficult to govern whilst riding the tiger of anti-government fervor that it currently embraces.

Future electoral success may require the leadership of the Republican Party to confront and reject at least one segment of this anti-government ideology: explicitly repudiating vigilantism in favor of strict law and order, for example, or repudiating any and all secessionist movements as unconstitutional.  I am not suggesting that Republican leaders explicitly support either of these two branches of anti-government activity, but merely that they have failed to definitively distance the ideology of the Party from them.  Only by selectively pruning the underpinnings of the overall anti-government movement will the Republican Party be able to grow back to its former levels of support.    

I would like to believe that the ideological chasm between the two major political parties can be bridged.  World War II, the Communist threat, and the Civil Rights movement managed to unite conservative Democrats and liberal Republicans for decades, and led to many bi-partisan legislative achievements during the Sixties and Seventies.  Yet over the last 20 years our nation has become increasingly divided along partisan lines.  What happened?  The easy answer is that conservative Democrats and liberal Republicans don’t get elected in meaningful numbers anymore.

Ronald Brownstein tells the story in a book that has obviously spent some time on Barack Obama’s nightstand: The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America.  To those who view partisanship as the natural state of American politics, Brownstein offers a rebuke.  We did not get where we are by accident.

“Good government” reforms, such as the elimination of the congressional seniority system, actually served to diminish the influence of moderates by directing committee assignments to loyalists.  The public also began to hunger for more sharply defined differences between the political parties.  After a “stay the course” consensus in Congress that persisted through the middle of the Twentieth Century — maintaining but not radically expanding the federal bureaucracy instituted by the New Deal — voters lost the ability to differentiate between Democrats and Republicans.  This restlessness played to the advantage of candidates that drew stark ideological distinctions with their opponents.  Finally, the eroding legacy of the Civil War had an impact, as a new generation of Southern voters chose to identify with the Republican Party rather than to follow their parents in rejecting the Party of Lincoln in favor of conservative Democrats.

Today, an elected representative who consistently toes a partisan party line is guaranteed important committee chairmanships, the lack of a primary opponent (and therefore virtually assured re-election from a gerrymandered district), and a fountain of campaign contributions from outside groups with narrowly defined special interests.  In contrast, an elected representative who votes their mind, with the result that their votes cross party lines on more than a modicum of occasions, gets none of these advantages.  Is it any wonder that independent thought is in such short supply in Washington?

None of these trends are new, but Brownstein charts their growth and development so clearly that it is impossible to conclude that our nation currently enjoys a healthy democracy.  It is therefore encouraging that President Obama began his Administration with a demonstrable effort at bipartisanship.  The President has also thus far turned a deaf ear towards the extreme liberal wing of his party, which daily calls on him to use the Democratic majority to ram their priorities through Congress.  For example, I am personally disappointed at his cautious expansion of federal support of stem cell research, while the gay and lesbian community is expressing its own increasing frustration with the Administration.

President Obama’s long-term success is tied to his ability to resist satisfying his own supporters.  However, lest we be too optimistic, Brownstein’s book documents how previous presidents (for example, Franklin Roosevelt) also began their presidencies with a good faith effort at bi-partisanship only to abandon that policy over time.

The most depressing explanation for why Democrats and Republicans disagree is that it is all in our minds.  In his book The Political Mind, George Lakoff argues that human minds are wired differently.  Progressives exalt empathy as the highest moral value: caring for others and acting on that care.  Conservatives exalt obedience to authority as the highest moral value: personal responsibility and discipline allow us to obey the rules that lead to happiness.  It is the battle between competing moral systems, rather than an attention to rational arguments or logical reasoning, that determines the political choices we make.  Rather than remain locked in a fight to the death, where we refuse to recognize the legitimacy of our opponents’ definition of morality, Lakoff urges all of us to call a truce and explicitly include both of these moral frameworks as equally valid aspects of the policy debate.  If we do so, he believes that the public might choose to pursue empathy as the highest value in some policies while simultaneously choosing to pursue obedience as the highest value in others.  Lakoff thinks that the public will eventually recognize the futility in seeking to impose one value system in all cases to the exclusion of the other.

Would this work?  I believe that Lakoff underestimates another essential characteristic of the human mind: our competiveness.  The will to win is a strong one, even if the cost of victory is our own destruction.  Ultimately, we fight because it is in our nature.  

However, noticeably absent from the stained glass was any iconography of a sword (cf. ‘splitting the baby’ from 1 Kings 3:16-28). A fellow law student held that the figure was really King David.

One authority, though, holds that the figure is neither David nor Solomon. During his spring 2008 visit to the law school, Judge Pryor of the US Court of Appeals for the Eleventh Circuit, who had identified Blackstone, offered Lady Justice as the likely candidate. This would account for the beardlessness, and the classic imagery of the scales is present. However, absent are the iconic sword and blindfold, and Lady Justice usually is not crowned. It’s a tough call. I welcome feedback to solve this art history mystery….

As stained glass was the Scripture for the (often illiterate) medieval masses, I wanted to know for certain who the two figures flanking Moses were. Accordingly, within the first few weeks of Law School (September 11, 2007, to be exact), at an evening social in Eisenberg, I asked Dean Kearney, and he enjoined me with the task to find out.

That searching, in a veritable Homeric Odyssey, led me along weeks of many twist and turns, and to many minds of men and women. In the end, like Homer’s hero, I found myself back to where I started: all the evidence points toward the figure on the left being Blackstone.

On this quest, I sought out and received some aid from the very helpful and friendly law library reference librarians, who led me to the Raynor Library reference librarians, who led me to the Milwaukee Public Library reference librarians, including the Art/Media staff, who led me to the Wisconsin Architectural Archive and the grandson of the architect of Sensenbrenner Hall, a Mr. Eschweiler, a gentleman in his 90s who works in the Public Library upstairs archive but once a week. I finally managed to contact Mr. Eschweiler in person, and he and his wife generously allowed me to pore over ledgers, blueprints, and other original source documents from the 1920s. Unfortunately, nothing detailed the identity of the figures in the stained glass windows.

At last I sought out that Delphic Oracle, the New York Public Library. Their online reference staff sent me back to the Milwaukee Public Library. I pushed further and contacted the NY Public Library Art Department. Within short order a member of the Art Department contacted me. Here is an excerpt from the reply:

As suspected, we also believe the image is of Sir William Blackstone.  The stain glass image appears to be based on the oil painting attributed to Sir Joshua Reynolds and located at the National Portrait Gallery, London.

If you go to the National Portrait Gallery website (http://www.npg.org.uk/ ), you may ‘Search the Collection’ (link at top center) for the term “Blackstone”, and receive several images in return.  The gallery contains two images of Sir William Blackstone (1723-1780).  The stained glass image is similar to the painting attributed to Reynolds (ie…chair in background, face, hair, wardrobe and hand gesture).

Sincerely,

Vincenzo Rutigliano

Art & Architecture, Room 300

artref@nypl.org

So the figure is almost certainly Blackstone. This identification received later corroboration from a distinguished member of the bench. The following spring, in 2008, Judge William Pryor of the the United States Court of Appeals for the Eleventh Circuit visited Marquette University Law School to deliver a lecture, and there was a reception in Eisenberg afterward. When asked about the wigged figure in the stained glass, Judge Pryor stated that it had to be Blackstone. Thus, the mysterious figure must be Sir William.

Born in the central Mississippi hamlet of Goodman in 1920, Donald was a descendant of both Confederate and Union soldiers.  His father, Ira Unger Donald, was a farmer, and his mother, Sue Ella Belford Donald, a school teacher.  Donald was educated at Holmes Junior College in Goodman; Millsaps College, in Jackson, Mississippi; and the University of Illinois at Champaign-Urbana, from which he received a PhD in History in 1946.  At Illinois, he was a student of James G. Randall, the most distinguished Lincoln scholar of the first half of the twentieth century.  Randall was the author of Constitutional Problems Under Lincoln (1926), the first major study of Lincoln’s relationship to the Constitution, and of the classic 1937 text, The Civil War and Reconstruction.  Randall later selected Donald to prepare a revised edition of the later work, which was published in 1961 (just in time for the Civil War centennial) as Randall and Donald, The Civil War and Reconstruction.  The chapters dealing specifically with the Civil War were published separately as The Divided Union (1961).

Donald’s doctoral dissertation was also his first book.  A study of Lincoln’s law partner and early biographer, Lincoln’s Herndon (1948), was the first of Donald’s many works that critically evaluated the received wisdom concerning the life and times of the sixteenth president. 

Later works included Inside Lincoln’s Cabinet (1954), an edition of the diaries of Treasury Secretary Salmon Chase; Lincoln Reconsidered: Essays on the Civil War Era (1956, 1960, 2001), a collection of singularly brilliant essays; Why the North Won the Civil War (1960); Charles Sumner and the Coming of the Civil War (1960), which won the Pulitzer Prize; The Politics of Reconstruction, 1863-1867 (1965), which made use of recent political science scholarship to reexamine the political dynamic of Congressional actions during the last part of Lincoln’s presidency and the first part of Andrew Johnson’s; Charles Sumner and the Rights of Man (1970); Liberty and Union (1978), a new textbook history of the Civil War era that reflected his thinking since the publication of The Civil War and Reconstruction in 1961; and Look Homeward: A Life of Thomas Wolfe (1987), which also won the Pulitzer Prize.

He was also one of the six historians who contributed to The Great Republic (1977), a highly publicized and somewhat controversial effort to produce a new college-level textbook on American history authored by the country’s most prominent historians. (The six historians were Donald, Bernard Bailyn, Gordon Wood, David Brion Davis, Robert Wiebe, and John L. Thomas).

In 1995, he published his long awaited biography of Abraham Lincoln, entitled simply Lincoln, which paid special attention to Lincoln’s constitutional views and focused upon the way in which Lincoln experienced the events of the Civil War era. Two follow-up volumes, Lincoln at Home: Two Glimpses of Abraham Lincoln’s Domestic Life (1999) and We Are Lincoln Men: Abraham Lincoln and his Friends (2003), examined other aspects of his life.  At the time of his death, Donald was working on a biography of John Quincy Adams that focused on Adams’ career after his defeat by Andrew Jackson in the 1828 presidential election.

Though much praised as an elegant stylist whose work was readily accessible to general readers, he was also deeply involved in the methodological debates that occurred within the historical profession during his career.  His willingness to incorporate the insights of the social sciences and psychology and psychiatry into his work, while retaining a traditional historian’s hostility to jargon and academic fashion, gave his work a distinctive character.

Donald began his academic career at Columbia University.  He subsequently taught at Smith College before returning to Columbia as a full professor in 1957. In 1959-60, he held the distinguished Harmsworth Chair in American History at Oxford University. He later joined the faculty at Princeton and then at Johns Hopkins before coming to Harvard in 1973 as the Charles Warren Professor of American History.  In 1978, he became the Chair of the Harvard’s History of American Civilization program, initially co-chairing the program with his long-time friend Daniel Aaron and later directing it on his own.  He retired from full-time teaching at Harvard in 1991, when he was named Professor Emeritus.  In honor of his 65th birthday, his former students produced a festschrift titled A Master’s Due: Essays in Honor of David Herbert Donald.

He is survived by his wife of many years, Aida D. Donald.  Mrs. Donald was an historian and biographer of Theodore Roosevelt, as well as, for many years, executive editor of the Harvard University Press.  The Donalds had one son, Bruce Randall Donald of Chapel Hill, N.C., and two grandchildren.  During his years at Harvard, Donald resided on Lincoln Road, in the town of Lincoln, Massachusetts.

Donald was invited to the White House by John Kennedy and George W Bush.  In the latter part of his career, he was frequently seen on television in documentaries and on stations like C-Span.  Since 2005, the Abraham Lincoln Presidential Museum in Springfield, Illinois, has awarded the “David Herbert Donald Prize” for excellence in Lincoln studies.

I first learned about David Donald while an undergraduate at Oberlin College in the early 1970’s.  One of my professors, David Rankin, was a former Donald student who was teacher in courses on African-American and Southern history.  Reading Donald’s still controversial arguments that the Confederacy collapsed because it was too democratic and that both abolitionists and pro-secession “fire-eaters” were driven to their extreme positions in part because of a form of status anxiety brought about by an increasingly capitalistic society made me realize that history was something more than just a chronicle of past events or the application of broad theoretical principles to the past (which was then much in fashion).

I also had the good fortune to later study under him at graduate school at Harvard in the late 1970’s and early 1980’s.  He held the bar high, but he was also unfailingly gracious to his students and generous with his time.  Although he is primarily associated with Lincoln and his era, his knowledge and interests were much broader than just that period and he supervised dissertations on a wide variety of topics.

He did, however, draw the line at the history of sports.  After I passed my PhD general examinations, I met with him to discuss possible dissertation topics.  He asked me what I thinking about, and I mentioned to him that I found it fascinating that in 1850 baseball was basically a folk game played informally with no set body of rules.  However, by 1870, the rules had been standardized, there were professional leagues, and the sport was widely hailed as “America’s national game.”  I told Donald that I thought it would be interesting to try to trace out the process by which this occurred, particularly since it happened against the backdrop of the Civil War and Reconstruction.  Donald appeared to toss my idea around in his head for a minute or two, and then said, in his charming Southern voice, “You know, Gordon, I don’t believe that I could come up with a less interesting historical question.”  On that note, I decided to write on the history of the legal profession in the South.

Professor Donald was also a brilliant classroom teacher, as anyone who attended his lectures on the United States in the nineteenth century can attest.  His undergraduate classes at Harvard always filled the large lecture halls in which they were scheduled.  I had the opportunity to serve as his teaching assistant and whatever success I have had as a teacher has largely been the result of his mentoring and tutoring.

With his passing, the historical profession, and the United States, has lost one of its giants.

That a major league team might be relocated in time for the 1953 season was a frequent topic of Hot Stove League conversation following the conclusion of the 1952 season.  Although no major league team had switched its base city since 1903, the Congressional hearings on baseball conducted by the Celler Committee in 1951 and 1952 had revealed considerable dissatisfaction with the current major league line-up which featured 16 teams in ten cities, none of which were west of St. Louis.  There were three teams in New York, two each in Boston, Chicago, Philadelphia, and St. Louis, with single teams in Cincinnati, Cleveland, Detroit, Pittsburgh, and Washington.  With little support among current owners for increasing the number of major league teams, the logical alternative was to move some of the teams from the multiple-team cities to cities that currently had only minor league baseball.

Much of the speculation focused on St. Louis. 

While St. Louis had been the fourth-largest city in the United States in 1902 when the American League’s Milwaukee Brewers moved there to compete with the National League’s Cardinals under the new name of the Browns, St. Louis’ growth had not kept pace with that of other cities in the first half of the twentieth century.  Many observers questioned the wisdom of continuing to have two teams in the Gateway city.  On September 23, 1952, the New York Times reported that the St. Louis Cardinals might be Milwaukee bound because of disagreements regarding their lease of Sportsman Park which was owned by their American League counterparts, the Browns.  (Milwaukee’s new Milwaukee County Stadium made the city a particularly attractive destination for a baseball team needing a new home.)  A December 23, 1952, story in the Washington Post predicted that it would be the St. Louis Browns, not the Cardinals, that would be moving to Milwaukee within the next two or three years.  (The Browns were then owned by Bill Veeck, the former owner of Milwaukee’s minor league team, the Brewers.)

The situation came to a head dramatically on January 28, 1952, when Cardinal owner Fred Saigh pled “no contest” to charges of income tax evasion in federal court in St. Louis and was sentenced to 15 months in prison.  Fearing that his fellow owners would strip him of his franchise, Saigh immediately agreed to give up control of the Cardinals and to sell his 90% ownership stake in the team.  At that point several Milwaukeeans, anxious to have major league baseball return to their city, undertook to bring the Cardinals to Wisconsin.

A January 30, 1953, New York Times article identified Fredrick C. Miller of the Miller Brewing Company, as one of several individuals reportedly interested in purchasing the Cardinals.  Actually, by that date, Saigh had already offered to sell the Cardinals to Miller for $4.5 million dollars, but Miller had balked at the price.  The Milwaukee Journal reported that same day that Miller had declined Saigh’s initial offer, but the paper was optimistic that a deal could still be worked out.  Almost immediately after Miller declined Saigh’s initial offer, a “Milwaukee syndicate” (which may have included Miller) made a “feeler offer” for the team that Saigh rejected.  Potential buyers from Houston and St. Louis were also bidding for the team, and on January 31, the Associated Press reported that several “undisclosed groups” had made offers to purchase the club but that Saigh intended to sell to St Louis interests.

In spite of the reports that he intended to keep the team in St. Louis, Saigh continued to negotiate with the Milwaukee group which offered $4.1 million dollars for the Cardinals during the first week of February.  On February 14, Saigh was apparently close enough to accepting the Milwaukee offer that Cardinal front office employees were told that if they wished to move with the club to Milwaukee their moving expenses would be paid by the team.   However, his reluctance to sell the team to owners who would move the club away from St. Louis led Saigh to put the Milwaukee offer on hold while he continued to search for a local buyer.

No one has convincingly explained Saigh’s refusal to sell the team to the Milwaukee buyers.  On February 21, the United Press reported that a week earlier Saigh had been close to agreeing to transfer the Cardinals to the Milwaukee ownership group.  According to the UP Saigh had advised the Anhauser Busch representatives that he was about to close a deal with the Milwaukee group, and if the St. Louis-based brewery wanted the team it would have to act immediately.  And it did, offering Saigh $3.75 million for the team, a figure less than the Milwaukee offer, but apparently large enough to satisfy Saigh.  The same day, the Wisconsin State Journal, a Madison daily, quoted Saigh as saying that once he had an outside bidder willing to pay a fair price for the club, he offered it to Anheuser-Busch at the same price.  The outside bidder was not identified but the way the story is positioned on the paper’s sports page, it seems clear that most readers would know that the buyer was from Wisconsin.

Saigh may well have been using outside bidders from Milwaukee (and possibly other cities) to establish a market price for the team and to convince local bidders that even though he was being forced to sell the team, he was not going to sell it for a fire-sale price.  By mid-February he clearly intended to sell the Cardinals to a St. Louis buyer if one could be found who was willing to pay close to the team’s actual value.  And when he found such a bidder in Auggie Busch, he sold him the team.  This was Saigh’s own explanation and one accepted by most sports journalists at the time.

However, it is also possible that Saigh, desperate to extricate himself from an embarrassing situation, was worried that his fellow owners might veto the sale of the popular Cardinals to individuals who planned to move the team.  Although the Cardinals had attendance issues in St. Louis, they were one of the most widely-followed teams in the United States and had an extraordinarily large fan base in the South and in the states of the western plains.

If this had been the case, and had Saigh sold the team to the Milwaukee buyers anyway, then it seems likely that the owners would have failed to approve the sale.  A second possible obstructionist scenario would have involved the minor league Milwaukee Brewers (owned by Lou Perini who also owned the major league Boston Braves).  Under the terms of the National Agreement (the contract arrangement that bound together the major and minor leagues) the Brewers could have invoked their territorial rights to block the movement of another organized baseball team into their territory.  If either of these scenarios had occurred the new Milwaukee owners would have had strong reasons to bring suit against organized baseball under the federal antitrust laws.  Such an action almost surely would have been brought in federal court in Wisconsin, where a sympathetic judge and jury were likely to be found.

If such a suit had been filed in 1953, what would have been the result?

One might think that organized baseball would have been insulated from such a lawsuit because of its antitrust exemption.  However, in January and February of 1953, the baseball antitrust exemption was anything but secure.  The Toolson v. New York Yankees decision that would confirm the exemption would not be handed down until the following November, and many observers in 1953 expected the baseball antitrust exemption to go the way of the insurance and manufacturing antitrust exemptions and other pre-New Deal limitations on the scope of the Sherman Act.

Four years earlier, the prestigious United States Second Circuit Court of Appeals had ruled in the case of Gardella v. Chandler that Major League Baseball was no longer exempt from the federal antitrust laws, and baseball had decided not to challenge that ruling by bringing the matter before the Supreme Court.  Moreover, when dealing with broadcasting issues involving Major League Baseball and the National Football League in the early 1950’s, the Justice Department had consistently taken the position that the Sherman Act clearly now applied to organized baseball, at least in regard to broadcasting issues.

On the other hand, in December 1952, the Ninth Circuit Court of Appeals had ruled that the antitrust exemption created by the 1922 Supreme Court decision in Federal Baseball was still valid.  On February 20, 1953, just as Fred Saigh decided to reject the Milwaukee offer to purchase the Cardinals, the Sixth Circuit reached a similar decision upholding the continued validity of the exemption.

The confusion was resolved that November when the Supreme Court ruled 7-2 in Toolson v. New York Yankees that the baseball antitrust exemption survived, at least until Congress chose to repeal it.  However, Toolson and its two companion cases involved issues related to the operation of minor league baseball, an institution somewhat irrationally valued by many Americans and whose continued existence could be threatened by the application of the antitrust laws to the web of restrictions on players and team owners that made it viable.  None of the three touched on the issues of territorial exclusivity or the relocation of major league franchises.  While the Milwaukee case would have arisen too late to be consolidated with Toolson, the existence of a franchise relocation case hovering in the background might have prompted several of the Supreme Court justices to view the issues in a different light.

Had the owners nixed the transfer and had the Milwaukee interests sued Major League Baseball under the Sherman Act, the entire history of baseball and antitrust might have turned out differently.

As it turned out, Milwaukee baseball fans quickly forgot about the Milwaukee Cardinals.  On March 18, 1953, only a month after Fred Saigh turned down the Milwaukee offer, Lou Perini, the owner of the woeful Boston Braves, announced that the Braves were moving immediately to Milwaukee and would play there during the 1953 season.  (Because Perini also owned the Milwaukee Brewers, there was no issue of territorial exclusivity.  The minor league Brewers were quickly dispatched to professional baseball-less Toledo, which was happy to take the team.)

Almost as quickly as the disappointing saga of the Milwaukee Cardinals ended, the glorious saga of the Milwaukee Braves began.  Playing in their new stadium, the Braves quickly shattered the all-time major league attendance record and within four years were playing the New York Yankees in the World Series.  The Cardinals did not make it back to the World Series until 1964.

Although the major league owners readily approved the transfer of the Braves from Boston to Milwaukee, it is not necessarily the case that they would have approved the transfer of the Cardinals.  In 1952, the American League owners rejected St. Louis Browns owner Bill Veeck’s various proposals to move the Browns to Milwaukee, Los Angeles, Miami, or Baltimore, but Veeck was especially disliked by his fellow owners, who may have opposed his proposals on purely personal grounds.  Although the Cardinals were not drawing exceptionally large crowds in the early 1950’s, they were not an economic basket case like the Boston Braves or the Browns.  (In 1952, the Cardinals averaged just under 12,000 fans per game, fourth best in the National League. The Braves, in contrast, averaged only 3600 fans and the Browns only 6600.)

It is also interesting to speculate what might have happened had the Cardinals, not the Braves, moved to Milwaukee in 1953.  The Browns almost certainly would have stayed put in St. Louis.  Lou Perini, the owner of the Braves, was exploring the option of moving to San Francisco (as well as Milwaukee) in 1953, and presumably would have moved to San Francisco, if not in 1953 then in some year thereafter.  The New York Giants seriously contemplated relocating to Minneapolis in the mid-1950’s, and with San Francisco occupied by the Braves, they would have likely moved to the Twin Cities as their attendance in New York continued to plummet.  Baseball could well have ended up with the Minneapolis Giants and the San Francisco Braves.

Given the well-documented recalcitrance of Robert Moses and Walter O’Malley, the Dodgers would have still moved to Los Angeles in 1957, but the Senators might have stayed in Washington, D. C., particularly if Minneapolis was already taken by the Giants.  Rather than move to Kansas City, the Philadelphia Athletics might simply have relocated down the road to Baltimore, where they probably would have retained the Athletics name.  By 1958, the baseball map would have been basically the same as it actually was, with a team in Minneapolis rather than Kansas City being the only difference, but there would have been some very different uniforms.   Whether the Milwaukee Cardinals would have abandoned the Brew City in 1966 for Atlanta is a question the answer to which no one will ever know.

Article 9 of the Articles of Confederation, the provision that dealt with constitutional amendments (called “alterations”), provided: “. . . nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

On September 17, 1787, the Constitutional Convention ratified its proposed Constitution and submitted it to the Confederation Congress which was then assembled in New York. On September 28, Congress voted unanimously to transmit the proposal to the states. Although Congress did not formally endorse the proposed changes, its unanimous decision to pass the proposal along to the states arguably satisfied the “agreed to in a Congress of the United States” portion of the amendment process.

The states in turn authorized the calling of state conventions to vote on the “alterations” with the understanding that each state was to be bound by the determination of its convention. (The conventions were not a requirement of the Articles but had been specified by the seemingly “unconstitutional” Ratification Clause of the proposed Constitution.) The final requirement of Article 9 of the Articles of Confederation — confirmed by the legislatures of every state — was met on May 29, 1790, when the legislatively authorized Rhode Island ratifying convention accepted the new Constitution. (May 29, 1790, was also Patrick Henry’s 54th birthday and exactly 58 years before the admission to the union of the state of Wisconsin.)

The constitutional illegitimacy argument to which Professor Tribe refers stems from the fact that the Confederation Congress, relying upon the Ratification Clause of the proposed new constitution rather than Article 9, declared the new Constitution in force on March 4, 1789, fifteen months prior to Rhode Island’s ratification. (In fact, as of that date neither Rhode Island nor North Carolina had ratified.) In the months between March 1789 and May 1790, the United States Senate was convened, George Washington was inaugurated as the first president, and Congress adopted a long list of landmark legislation including the Judiciary and Process Acts of 1789, the first tariff, the first Naturalization Act, the Patent Act of 1790, and acts creating the departments of State, War, and the Treasury. It also drafted the Bill of Rights amendments and sent them to the states.

If the Constitution of 1789 didn’t become effective until May of 1790, then none of these actions was legitimate. Consequently, since such acts are the bedrock of American constitutionalism, the only conclusion must be that it was not necessary for the Founders to follow literally the terms of the Articles of Confederations. Not necessarily. To assume that governmental action can be legitimate only if it is authorized before it is taken is to embrace a view that is both conceptually crabbed and inconsistent with the American constitutional experience. One has only to look at the early months of the Lincoln administration to see that such a principle is not always the norm. To deal with the secession crisis, Lincoln suspended the writ of habeas corpus, ordered the arrest of Southern-sympathizers in states like Maryland, imposed a blockade on Confederate ports, and impressed the state militias into national service, all powers that under Section I of the Constitution are assigned to the legislative branch, not the executive.

However, when Congress went into session several months later in the fall of 1861, it quickly ratified Lincoln’s actions, and when the constitutionality of the president’s conduct reached the Supreme Court in The Prize Cases in 1862, the Court upheld the president’s actions, at least in part because they had been subsequently authorized by Congress.

The same logic applies in 1790. When North Carolina and Rhode Island subsequently ratified the Constitution of 1789, they also approved the actions already taken by the new Congress and established conclusively the “alterations” contained in the new constitution were legitimate. Had either state refused to ratify, then the legitimacy of the actions of the First Congress would be a valid question, but once the requirements of Article 9 were met, the issue became moot.

In other words, not just the spirit, but also the letter, of the Articles of the Confederation was followed during the transition from one constitution to the next.

Lincoln’s Bible resonates at different levels. First, it is deliciously ironic that a Democrat will make the first use of the first Republican president’s Bible since Lincoln himself in 1861. Second, the decision generated considerable press, which in turn subtly emphasizes Obama’s willingness to publicly embrace religion as part of our political discourse. Third, it poignantly ties Obama’s inauguration to the Civil War, the emancipation of the slaves, the country’s continuing struggles over race, and, of course, Lincoln himself. By using Lincoln’s Bible, Obama portrays himself as Lincoln’s heir. Lincoln’s Bible will become Obama’s Bible as well.

As an historian, I applaud Obama’s willingness to consciously craft historical memory and, most of all, his rich appreciation for symbols in American politics.

Obama also understands the resonance of words in our political culture. His best speeches are carefully worded and eloquently delivered. His use of Lincoln’s Bible undoubtedly challenges him to reach Lincoln’s threshold as a speaker and writer. The pressure will be enormous: If you’re using Lincoln’s Bible, you had better be up to the task. And this will be difficult. Lincoln’s plaintive plea for national unity — those “mystic chords of memory” — in the first inaugural drew upon the memory of the American Revolution, and his powerful justification for waging the bloodiest of American wars — “With malice toward none, with charity for all” — in the second inaugural explicitly invoked Biblical authority. Both rank among the greatest addresses in American history.

What distinguishes Obama and Lincoln though is not eloquence or talent, but events. Today we face economic and financial distress, the threat of world-wide terror strikes, and difficult social problems, yet thankfully these pale when compared to civil war and slavery. One suspects that Obama’s message will be one of optimism and hope that draws upon the lessons of history, particularly Lincoln’s confidence and trust in the American people, their democratic government, and their diverse faiths. There is no need to exaggerate the current financial “crises”; the nation has endured far worse. Obama’s challenge will be to place his election and current events in proper context. The clarion call for “change” will likely hark back to fundamental principles and values found in American history and religion. In the years ahead, it will be interesting to observe how the Obama administration uses and shapes the strength of America’s collective memories in implementing its policies. After all, it is these “mystic chords of memory” that define our nationhood. Finally, Obama’s inauguration will make a singularly telling point that must not be overlooked: Lincoln’s oath was administered by Chief Justice Roger B. Taney, the author of the lead opinion in Dred Scott. This fact may best explain Obama’s use of Lincoln’s Bible and its symbolic power.