April 24, 2007
Cowgirl Hall of Fame, Political Division Posted by Frederic D. Schwarz at 01:55 PM EST An article by Alexandra Starr in The New Republic (reprinted here in the New York Post) contains a disconcerting revelation about New Jersey’s former governor, Jim McGreevey. Governor McGreevey is best remembered for his fondness, as recalled in his recently published memoirs, for pressing the flesh of his constituents New Jersey–style by trolling for company at turnpike rest stops. But it turns out that when he wasn’t busy making friends at the Vince Lombardi Service Area, Gov. McGreevey liked to ogle female strippers with his fellow politicians. Anything for diversity in the Garden State. Ms. Starr blames the pervasive sleaze of New Jersey politics (which certainly did not begin or end with McGreevey) for the state’s low percentage of women in elected office. I’m not sure I buy that, but I was struck by one sentence in the article. After reeling off figures on the low numbers of female officeholders in several Northeastern states, she writes: “Yet many conservative Western states proved surprisingly hospitable to female politicians.” There is nothing surprising about female politicians in the West. Wyoming let women vote in 1869, as soon as it was organized as a territory, and Utah did the same in 1870, with both reaffirming the policy when they became states. And here are the other states that enacted female suffrage before World War I: Colorado (1893), Idaho (1896), Washington (1910), California (1911), Arizona, Kansas, and Oregon (all 1912), Illinois (1912, along with Alaska Territory), and Nevada and Montana (both 1914). As for women officeholders, Utah elected a woman state senator in its very first election (among the candidates she defeated was her husband; details can be found here if you don’t mind all the stifled giggling). Rep. Jeannette Rankin, who voted against U.S. entry into both World War I and World War II, represented Montana. As Ms. Starr acknowledges, the nation’s first two female governors, elected in 1924, were in Texas and Wyoming (see this for my scintillating account). After that, there was a long drought, but of the two dozen women elected as state governors beginning in the 1970s, more than half have been from Western states (i.e., those not east of or touching the Mississippi River). As I say, there’s nothing surprising about all this. It’s hard to maintain the notion of hearth and home as woman’s separate sphere when she’s out doing farm chores all day long, and in any case Westerners have long been skeptical about Eastern customs. Ms. Starr concedes much of this, and in general she seems enthusiastic about how government works in the West. But her gratuitous introduction of “conservative” and “surprising” gives the game away: She can’t believe what’s she’s seeing, because if these folks are so smart and enlightened, why aren’t they liberals? It’s like saying that Alexandra Starr is pretty smart for a woman. What I think is at work here is the common tendency, evoked with great perception and sensitivity here, of political activists to be sensitive to the finest distinctions within their own camp, since that’s where they spend all their time, while lumping together everyone on the other side as an undifferentiated mass. I have heard conservatives express wonder that liberals can be shrewd businessmen, since they’re all a bunch of socialist hippies, aren’t they? In similar fashion, Ms. Starr seems to assume that anyone who votes for a Republican or opposes partial-birth abortion must hate women; you know those “family values” types, right? All this leaves aside the question of whether the percentage of female officeholders is a reliable indicator of the status of women, or whether going to strip clubs is a reliable indicator of sexism. But whether or not these are true, Ms. Starr’s use of “conservative” is telling. A conservative is an admirer of tradition, and the Western states have a much deeper tradition of women in politics and government than the Eastern ones.
April 24, 2007
David Halberstam Posted by Joshua Zeitz at 11:05 AM EST I’m sure I join the other contributors and editors at American Heritage Magazine and AmericanHeritage.com in noting with sadness the passing of David Halberstam, who died yesterday at the age of 73. Halberstam, who wrote several fine features for American Heritage, was one of the most influential popular historians of his time. His works on the 1950s, baseball, the Vietnam War era, and the civil rights movement stand out for their crisp prose style, extensive research, and sheer ambition. A testament to his tireless work ethic, at the time of his death he was working on a new book about the 1958 championship football game between the Giants and the Colts. A native of New York City, Halberstam attended Harvard College, where he edited the student newspaper, and then built a distinguished career in journalism, covering the early civil rights movement for two Southern newspapers (the West Point Daily Times Leader, in Mississippi, and the Nashville Tennessean), and foreign affairs for The New York Times. It was his coverage of America’s involvement in Vietnam that ultimately won him a Pulitzer Prize. An early skeptic of the Kennedy and Johnson administrations’ policies in southeast Asia, Halberstam was the first to call the war a “quagmire.” He sounded an early warning that in the absence of real economic and governmental reform in South Vietnam, American military might would prove inadequate to the task. In 1972, as the ground war was winding down, he penned a widely influential book, The Best and the Brightest, which sought to explain how a group of presidential advisors who were arguably the most worldly and well-educated in American history could have led the country so tragically astray. By far my favorite of Halberstam’s books was The Fifties. Covering topics as far and wide as the Cold War, Playboy magazine, suburbanization, television, and Marilyn Monroe, Halberstam provided a great narrative sweep on what was, at the time, America’s most prosperous decade. He also advanced what was then a fresh argument. While most academic and popular historians widely regarded the fifties as a stale decade, Halberstam located tremendous innovation, social unrest, and political foment in the years between Harry Truman’s 1948 victory and John F. Kennedy’s ascent to power. He excerpted some of that work in American Heritage (unfortunately, it’s not available online). Six years ago I had the pleasure of meeting David Halberstam at a cocktail party in Providence, Rhode Island. He was gracious and engaging, mindful to ask me about my own research and writing, which was nowhere near as interesting as his own, and genuinely interested in how American history was being taught at Brown University. I stand about six-foot-one, so it’s rare that I find myself looking up at a conversation partner. But Halberstam was a tall man, easily six-four, and I had to stretch my neck to make eye contact. It’s a fitting metaphor. In life and in stature he was a giant, and while his writing will surely be missed, his influence will, I hope, endure.
April 23, 2007
Sex in Early America Posted by Joshua Zeitz at 04:45 PM EST Apropos of our ongoing discussion about Roe v. Wade, which has branched out in some interesting directions, John Steele Gordon is absolutely correct to note that “there were any number of laws, common and statute, regarding adultery, sodomy, fornication, etc., in colonial America,” and to venture that “perhaps sex inside of marriage was entirely a private matter. But outside of it, it most certainly was not. Colonial New England, especially, bore little resemblance to, say, modern-day Amsterdam, as to what was regarded as nobody else’s business.” On the one hand, New England Puritans were anything but puritanical when it came to discussing or having sex. Samuel Willard, a Boston minister, spoke for many fellow residents of the Massachusetts Bay Colony when he derided the “Popist conceit of the excellency of virginity,” while John Cotton affirmed that “women are creatures without what there is no comfortable living for a man.” David Hackett Fischer, a leading historian of colonial America, has found that “Puritans commonly believed that an intimate sexual bond between husbands and wives was an important and even a necessary part of marriage.” That said, the Puritans punished extramarital sex harshly. For sleeping with an unmarried woman, a man could be whipped, imprisoned, fined, or forced to marry the woman in question. Adultery was technically a capital crime in colonial New England, and indeed three people were sent to the gallows for betraying their spouses. In colonial Virginia and Maryland, codes were much less strict, and consequently the high rates of out-of-wedlock births did not usually result in punitive action. The secret diary of William Byrd, a Virginia planter and compulsive Lothario, is replete with entertaining and crudely detailed evidence to this effect. The Puritans would not have been amused. The key distinction here was religious culture. Puritans believed that any unnatural sex act—be it masturbation (which was a capital crime in New Haven) or bestiality (also punishable by death)—violated biblical codes that defined sex as a strictly procreative act. Not surprisingly, the Puritans were not great fans of birth control. These observations aside, it’s worth noting two things: First, Puritans were a self-conscious reform sect and defined themselves by their exceptionalism in the Anglo-American world. To their dismay, their grandchildren made the smooth transition from Puritan to Yankee and joined the rest of the colonies in accepting a more lax sexual and religious code. Second, even the Puritans regarded quickening as the key point at which a fetus became a live person. But back to the question of extramarital sex. Mr. Gordon is surely correct that the rules governing privacy were different for married and unmarried people, both as early as the seventeenth century and 150 years later, at the time of the Constitution’s drafting. This remained the case even in 1965, when in Griswold v. Connecticut the Supreme Court invalidated a Connecticut law that barred married couples from attaining birth control. In his decision, Justice William Douglas argued that the institution of marriage, and the degree of privacy on which it was predicated, long predated the Constitution and, as such, were among the common-law rights that the Ninth Amendment meant to protect. The Court said nothing about the rights of unmarried people until seven years later when, in the case of Eisenstadt v. Baird, it struck down a Massachusetts law that barred unmarried persons from purchasing birth-control devices. It did so by invoking the Fourteenth Amendment’s equal-protection clause, which bars states from extending certain protections to some citizens but not to others. Writing for the majority, William Brennan found that “whatever the right of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.” I realize that Mr. Gordon probably remains unsold on my argument that abortion was a common-law right in 1787 and, by any originalist or strict-constructionist reading of the Constitution, is covered by the Ninth Amendment. But as for the distinction between married and unmarried women, the Fourteenth Amendment made it impossible for the state to make that distinction, as indeed it made it impossible for the state to provide good schools for white children and substandard schools for black children.
April 23, 2007
Who’s a Strict Constructionist? VI Posted by John Steele Gordon at 03:25 PM EST Joshua Zeitz’s latest post is most interesting and informative, but I would still disagree with his statement that, “given how jealously the early Americans guarded the sanctity of their homes and their private sphere—this was, after all, the rationale behind constitutional limits on quartering soldiers in private homes, on compelling self-incriminating testimony, on conducting unlawful searches and seizures, and on abridging the freedom of speech and assembly—it is hard to imagine that the founders would not have considered laws regulating sex, childbirth, and women’s health as unconstitutional violations of common-law rights.” To me, that is a bridge way too far. First, I believe the Third Amendment against quartering soldiers was directed less at maintaining the privacy of families in the modern sense of the term and more at preventing the severe economic and other damage (to the virginity of daughters, for example) that soldiers were all too likely to inflict on a family. Eighteenth-century soldiers weren’t exactly famous for their good behavior off the battlefield. To be sure, Justice Douglas used the Third Amendment to add a little artistic verisimilitude to his “umbras and penumbras” argument in Griswold, but that was, I believe, a “kitchen sink” gambit on his part. Second, there were any number of laws, common and statute, regarding adultery, sodomy, fornication, etc., in colonial America. Perhaps sex inside of marriage was entirely a private matter. But outside of it, it most certainly was not. Colonial New England, especially, bore little resemblance to, say, modern-day Amsterdam, as to what was regarded as nobody else’s business. Third, if “it is hard to imagine that the founders would not have considered laws regulating sex, childbirth, and women’s health as unconstitutional violations of common-law rights,” would not one of the founders have explicitly written so? If one did, it is really hard to imagine that latter-day defenders of abortion rights would not have trumpeted the fact to the skies. The founders wrote volumes—quite literally—about a man’s home being his castle, self-incrimination, freedom of speech and assembly, etc., that are grounded in such sources as the English Bill of Rights. But so far as I know, they wrote not one word about “sex, childbirth, and women’s health” or abortion. Mr. Zeitz writes, “In 1810 the Herald of Liberty, an Augusta newspaper . . . announced the availability of ‘Dr. Rolfe’s Aromatic Female Pills,’ promising that ‘they are conducive to the health of married women, unless when pregnant, at which time they must not be taken as they would most certainly produce miscarriage.’ Rolfe’s cautionary note was not intended to protect him against legal charges, as it was not a criminal offense in Massachusetts, or anywhere else in the United States, to induce a miscarriage before quickening.” I find this fascinating and don’t know enough to flatly disagree with Mr. Zeitz’s interpretation. But—call me cynical—when I read the advertisement my first thought was that Dr. Rolfe was slyly writing one thing and meaning quite another. Abortion was not illegal, but was it socially acceptable? I doubt it. Dr. Rolfe’s ad struck me as a bit like a modern soft drink advertisement saying, “teenagers on no account should use this product, as its effects are much the same as alcohol.” And while abortion was not illegal in 1810, being pregnant and unmarried most certainly was a social calamity for a young woman in 1810. I would guess that Dr. Rolfe was not so much warning married women against the dangers of miscarriage as he was peddling his pills as being the answer to a maiden’s (and many a married woman’s) prayer.
April 22, 2007
Who’s a Strict Constructionist? V Posted by Joshua Zeitz at 01:15 PM EST John Steele Gordon invites readers to “do a thought experiment. Imagine asking John Adams—a highly skilled and deeply learned lawyer—if he thought the Ninth Amendment protected ‘the right to have an abortion.’ My guess is he would have looked at you as if you had come from Mars.” This is a useful place to continue with our dialogue on Roe v. Wade. Ignore for a moment the principal shortcoming of this thought experiment: in John Adams’s day, the Ninth Amendment safeguarded Americans against the potential overreach of the federal government; it wasn’t until the Fourteenth Amendment was ratified in 1868 that the individual states were obliged to respect the Bill of Rights. So Adams would likely have responded that the federal government wasn’t in the business of regulating medical procedures, but that the states were free to do so. That nitpicky objection notwithstanding, Mr. Gordon’s thought experiment is a useful one. At first glance, it would seem to bolster his argument that the framers had no particular knowledge of or interest in abortion or birth control, let alone a sense that any of these subjects fell under common or statutory law. I would respectfully disagree. Historians of early America have long noted that live birth rates began to drop off precipitously in the nineteenth century, so that the average American woman bore just over seven children in 1800 but just over three children by 1920. In New England, which led the nation in this trend, live birth rates began to plummet in the late eighteenth century. Clearly, one of two things was happening. Either people had less sex (unlikely) or, in response to the demands of the emerging market economy, they practiced more family planning (likely). Birth control methods of the day were crude, but they included the rhythm method, coitus interruptus, herbal and chemical remedies, and abortion. Surely the Adams family was not unaware of these strategies. In her diary Abigail Adams explained that she had deliberately spaced out her children by two years. One can only assume that John Adams was an active or passive participant in whatever strategy he and his wife plied to achieve that effect. In their day it was perfectly normal to find ads for patent abortion medicines in newspapers and journals. In 1810 the Herald of Liberty, an Augusta newspaper (Maine was then part of Massachusetts, home state of the Adams family), announced the availability of “Dr. Rolfe’s Aromatic Female Pills,” promising that “they are conducive to the health of married women, unless when pregnant, at which time they must not be taken as they would most certainly produce miscarriage.” Rolfe’s cautionary note was not intended to protect him against legal charges, as it was not a criminal offense in Massachusetts, or anywhere else in the United States, to induce a miscarriage before quickening. Mr. Gordon writes, “I imagine [early Americans] rarely thought of [abortion] at all. I would be very interested to learn what, exactly, was the jurisprudence Blackmun was referring to. I wonder, for instance, how many cases there could have been altogether. After all, who would have hauled the women into court? How could it have even been determined whether it was abortion or miscarriage that had ended the pregnancy? How, indeed, would the pregnancy have been known to exist before ‘quickening’?” These are good questions. In fact, there was a surprising amount of abortion case law in colonial America and in seventeenth-century and eighteenth-century England. Normally, criminal prosecutions targeted doctors or male partners who stood accused of aborting live or “quick” fetuses against the wishes of their female patients or lovers. Such was the case in 1652, when one Susanna Warren of Maryland was impregnated by a “prominent citizen,” Captain Mitchell. According to court records, Mitchell prepared a “‘potion of Phisick,’ put it in an egg, and forced her to take it.” The potion didn’t have the desired effect, but Warren brought charges of attempted infanticide against Mitchell. One of the laws governing abortion in the American colonies was an English statute, adopted by parliament in 1624, that made it a crime to conceal the suspicious death of an infant “in life”—meaning, one who had achieved viability. This supports Blackmun’s observation that courts and lawmakers at the time of the Constitution’s ratification were interested in neonaticide, not abortion, and that they drew a fairly distinct line between fetal life and human life. In English and colonial courts, when a woman stood accused of aborting a quickened fetus, all she needed to do was testify that the fetus had not, in fact, been quick. When a doctor or lover stood accused of aborting a quick fetus against the wishes of an expectant mother, the courts similarly took the woman at her word as to whether the fetus was quick. As late as 1812 the Massachusetts Supreme Judicial Court threw out abortion charges against Isaiah Bangs, because the prosecution could not prove that the fetus he aborted had quickened. Presumably (I don’t know the details of the case), the woman whose pregnancy he terminated either died during the procedure or refused to testify that her fetus had been quick. Mr. Gordon and I disagree about three things. First, we differ somewhat (though not, I think, entirely) on a fundamental question to which there is no real answer. Does the Constitution protect only those liberties that it specifically lays out in detail, or does it raise a high bar for taking away rights that people in the eighteenth century commonly enjoyed either by statute or organic case law? Second, as a historian, I’m fairly convinced that early Americans thought about and discussed abortion and birth control a good deal. These topics certainly appear frequently in the diaries of colonial and early Republic women, and given the enormous drop-off in the birth rate—again, a phenomenon that probably reflected a new accommodation with the emerging market economy—it’s hard to imagine that early Americans didn’t discuss procreative and family planning strategies. I find it difficult to imagine that John Adams never discussed with his wife the method by which they deliberately spaced out their children; I also find it hard to believe that as active a member of the Massachusetts bar as John Adams wasn’t aware of the 1812 decision in the state’s Supreme Judicial Court. This leads to my final observation. In the late eighteenth and early nineteenth centuries, abortion and birth control were private affairs. There were no public hospitals, no AMA, no established medical profession, no clinics or social workers to insinuate themselves into the family sphere. Sex and family planning fell safely under the domain of husbands, wives, midwives, and (sometimes) crudely trained country doctors. On those occasions when the state did try to prosecute citizens for aborting a fetus, women were given considerable leeway in affirming or denying that the aborted fetus was quick. In other words, the state stayed out of people’s sex lives except in extreme cases, and even in those cases it had to clear an enormous burden to prove that a crime had taken place. Given how jealously the early Americans guarded the sanctity of their homes and their private sphere—this was, after all, the rationale behind constitutional limits on quartering soldiers in private homes, on compelling self-incriminating testimony, on conducting unlawful searches and seizures, and on abridging the freedom of speech and assembly—it is hard to imagine that the founders would not have considered laws regulating sex, childbirth, and women’s health as unconstitutional violations of common-law rights. I would thus reframe Mr. Gordon’s question: “Imagine asking John Adams—a highly skilled and deeply learned lawyer—if he thought the state was permitted to imprison his wife or daughter for using Dr. Rolfe’s Aromatic Female Pills to terminate a twelve-week pregnancy.” I don’t know the answer to this question any better than Mr. Gordon, but my guess is no.
April 21, 2007
Who's a Strict Constructionist? IV Posted by John Steele Gordon at 07:00 PM EST Joshua Zeitz writes, “Part of the problem is that I quoted only selectively from Blackmun’s decision. He continued: ‘Most American courts [in the colonial era] ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law, others followed Coke in stating that abortion of a quick fetus was a “misprision,” a term they translated to mean “misdemeanor.” . . . In this country, the law in effect in all but a few States until mid-19th century was the preexisting English common law.’” I am not a lawyer (but then, unless I’m mistaken, neither is Mr. Zeitz), but I would think that the fact that a court here or there had held that X was not criminal under the common law did not, ipso facto, make X a “right.” To be the latter, it seems to me, would require that X have been regarded as an aspect of “liberty.” As Mr. Zeitz points out, common law develops on a case-by-case basis, and it takes a number of cases before the common law becomes settled and thus binding on future judges under the doctrine of stare decisis. And even then legislatures overturn the common law by statute all the time (such as the common law principle that 21 was the age of majority). And surely no one in the eighteenth century thought of abortion as an aspect of the “liberty” that became enshrined in the U.S. Constitution via the Ninth Amendment. (Do a thought experiment. Imagine asking John Adams—a highly skilled and deeply learned lawyer—if he thought the Ninth Amendment protected “the right to have an abortion.” My guess is he would have looked at you as if you had come from Mars.) In fact, I imagine they rarely thought of it at all. I would be very interested to learn what, exactly, was the jurisprudence Blackmun was referring to. I wonder, for instance, how many cases there could have been altogether. After all, who would have hauled the women into court? How could it have even been determined whether it was abortion or miscarriage that had ended the pregnancy? How, indeed, would the pregnancy have been known to exist before “quickening”? Given the fact that abortion is almost always a very private act and that the state of knowledge before the modern era regarding gestation was nearly nil, these must have been very unusual cases and, I suspect, very few in number. Far better established, both in the common law and as an aspect of liberty, was the doctrine of “liberty of contract,” that two parties are free to make whatever contract they wish provided it does not contravene some established principle of law (such as the common-law principle that one cannot contract against one’s own negligence or make a contract of marriage if one is already married). Under this doctrine, the Supreme Court ruled in Lochner v. New York (1905) that the New York State Legislature could not mandate a limit on the number of hours bakers could work, even for the sake of the bakers’ health. Lochner was later invoked to strike down laws limiting child labor, mandating minimum wages, and most New Deal legislation, until the court changed course in the late 1930s (the famous “switch in time that saved nine”). Today, of course, most people regard Lochner as a classic example of judicial activism, the court blithely substituting its judgment regarding what was necessary to protect the health of bakers for that of the legislature and elevating a common law right, liberty of contract, over all others, including the state’s right to protect the health of its citizens. Today it is the dissent in Lochner of Justices Holmes and Harlan that is regarded as having pointed the way to our modern understanding of “liberty of contract.” I certainly agree with Holmes and Harlan, and—just a guess!—I expect that Mr. Zeitz does too. Overturning Lochner did not require a constitutional amendment and shouldn’t have. In the eighteenth century nothing was known about the occupational hazards of bakers, and nothing was known about gestation until late in pregnancy (and very little then). So it was a medieval religious doctrine (the Catholic Church had decided that the soul entered the body of the fetus when it quickened) that determined when a fetus became entitled to legal protection. We now know a great deal about both occupational diseases and gestation, and legislatures are (or rather should be) entitled to make reasonable laws regarding both. I think Roe and Lochner are classic cases of judicial usurpation of legislative power masquerading as the protection of a “right.”
April 20, 2007
Who’s a Strict Constructionist? III Posted by Joshua Zeitz at 12:05 PM EST John Steele Gordon raises an important question, which I’ll try to answer. Yesterday I quoted from Justice Harry Blackmun’s decision in Roe v. Wade, which asserts that in 1787, when the Constitution was drafted, as a matter of “common law, abortion performed before ‘quickening’—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense.” I cited this part of Roe to suggest that since women had a common-law right to abort a pregnancy in 1787, by the rules of originalism and strict constructionism, abortion is a constitutionally protected right by the terms of the Ninth Amendment. Mr. Gordon writes, ”Blackmun seems to be saying that it [common law] was silent regarding abortion early in pregnancy, as was statute law in 1787 (only violations of statute law can lead to criminal indictment, I believe). So it seems to me to be quite a stretch to argue that, since the common law was silent on something, that therefore that something “was a common-law right in 1787.” Part of the problem is that I quoted only selectively from Blackmun’s decision. He continued: “Most American courts [in the colonial era] ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law, others followed Coke in stating that abortion of a quick fetus was a ‘misprision,’ a term they translated to mean ‘misdemeanor.’ . . . In this country, the law in effect in all but a few States until mid-19th century was the preexisting English common law.” In other words, at the time the Constitution was drafted, common law affirmatively allowed women to abort pregnancies before the period of fetal viability, and it regarded the abortion of a “quick”—or viable—fetus as a misdemeanor crime. We know this because courts in England and the United States repeatedly declined to convict women, doctors, or midwives on statutory homicide charges in contested cases. Common law develops on a case-by-case basis. I hope this answer’s some of Mr. Gordon’s question.
April 20, 2007
Who’s a Strict Constructionist? II Posted by John Steele Gordon at 09:45 AM EST I certainly agree with Joshua Zeitz that Wednesday’s Supreme Court decision on partial birth abortion was strictly a dog-bites-man news item, once Samuel Alito replaced Sandra Day O’Connor on the court. I also agree that strict construction tends to be a flag of convenience, to be invoked or ignored at will as suits someone’s agenda. Even the original strict constructionist, Thomas Jefferson, admitted after becoming President that it was a doctrine more congenial to those out of power. Certainly he had no hesitation—if some misgivings—in snapping up Louisiana, despite the fact that the Constitution nowhere mentions the acquisition of territory from a foreign power. Mr. Zeitz writes, quoting, I assume, Justice Blackmun, who wrote the Roe v. Wade opinion, “In 1787, when the Constitution was drafted, as a matter of ‘common law, abortion performed before “quickening”—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense.’” Mr. Zeitz continues, “‘Strict constructionists’ like to argue for a literal reading of the Constitution. If a certain right is not embedded in its text, it doesn’t exist. But as [Justice William O.] Douglas and Blackmun demonstrated, citizens enjoyed a host of common-law privacy rights prior to—and at the time of—the Constitution’s enactment, and these rights fall under the rubric of those ‘rights . . . retained by the people’ protected by the Ninth Amendment.” So far, I have no disagreement. But then he argues that “if ‘strict constructionists’ don’t like abortion, the onus is on them to amend the Constitution and remove a right that was guaranteed to women at the time of its original drafting.” Here Mr. Zeitz loses me. I am no expert on the common law (where is Oliver Wendell Holmes when you need him?). But as I understand it, the common law was not silent on the subject of various “privacy rights”; they had been established in many cases over the centuries. But Blackmun seems to be saying that it was silent regarding abortion early in pregnancy, as was statute law in 1787 (only violations of statute law can lead to criminal indictment, I believe). So it seems to me to be quite a stretch to argue that, since the common law was silent on something, that therefore that something “was a common-law right in 1787, and as such, it is protected by the Constitution” under the Ninth Amendment. If you accept that argument, then wouldn’t everything on which the common law was silent in 1787—from the speed one may travel on a highway to licenses needed to practice various professions to how and where property owners can dispose of garbage—require a constitutional amendment to empower a legislature to enact statutes regarding them? I’m reasonably confident that the common law was silent on the subject of growing marijuana in the privacy of one’s basement. But I’m equally confident that a Ninth Amendment argument that the law was therefore unconstitutional wouldn’t impress the judge.
April 19, 2007
The Undying Greatness of Jimmie Rodgers: An Interview with Nolan Porterfield Posted by Allen Barra at 03:35 PM EST The Undying Greatness of Jimmie Rodgers: An Interview with Nolan Porterfield The publication of Nolan Porterfield’s Jimmie Rodgers: The Life and Times of America’s Blue Yodeler, in 1979, set a high-water mark for scholarship in the field of American roots music. Since his death from tuberculosis, two days after his final recording session – Rodgers has never really gone out of style, his work constantly reinterpreted by every new generation of folk, rock, and country artists. The actor Tim Blake Nelson’s rendition of Rodgers’s popular “In The Jailhouse Now” in the Coen Brothers O Brother, Where Art Thou? signaled a new wave of interest in Rodgers’s life and work. Porterfield’s book has just been reprinted by the University of Mississippi Press, in a paperback edition with a new preface by the author. Porterfield answered the following questions from his home in Kentucky. One of the revelations of your book is the extent of Jimmie Rodgers’s popularity, a fact largely forgotten today, even to people who revere his name. How would you compare him to the most visible popular singing star of the early 1930s, Bing Crosby? I would question the assumption that Jimmie Rodgers’s popularity is “largely forgotten today.” There’s plenty of evidence that his influence remains strong, especially among the many grassroots musicians who are pursuing professional careers these days, and that would not be happening if they weren’t aware of Rodgers’s stature. They may not know all the details of his career, but they know the songs and keep on singing them. It’s difficult to make a comparison between Rodgers and Bing Crosby, first because they were different kinds of singers and appealed to different audiences, and second, when Rodgers died in 1933, Crosby was just beginning to establish his solo career. Who’s singing Bing Crosby songs these days? Record sales are not necessarily a useful measure in making comparisons, but it’s worth noting that Crosby didn’t have a million-seller until 1937, while Rodgers’s 1927 “Blue Yodel No. 1 (T for Texas)” is generally considered to have sold at least a million copies during the time it was in Victor’s catalog. (Interesting coincidence: Crosby’s first “gold record” was “Sweet Leilani,” and he was accompanied by the orchestra of Lani McIntire, who had also recorded with Rodgers back in 1930.) Jimmie Rodgers is often credited by historians with creating what came to be called country music. Yet those listening to Rodgers’s original recordings for the first time may be surprised that it doesn’t sound more “pure”—that is, I think I’m trying to say, more like folk music, like the Carter Family or similar artists of the period. Rogers’s music seems to take in so many influences—the traditional songs of Celtic origin, Mississippi Delta blues, yodeling, the Hawaiian music you mentioned, perhaps vaudeville, and God know what else. I guess what I’m groping for is that Jimmie Rodgers wasn’t a purist when it came to music—or am I lessening to Rodgers’s music the wrong way? I’m not sure just what “purist” means when it comes to Jimmie Rodgers, but you’re right that he drew from many diverse sources and in the process transformed them into something uniquely his own. As I wrote in the book, “While Rodgers and the Carters appealed to similar audiences and shared common rural origins, there were significant differences between them. . . . Putting A. P., Sara, and Maybelle together with Jimmie Rodgers was not exactly an attempt to mix oil with water (axle grease and STP might be a more fitting metaphor) but, as the results indicate, the risks were considerable. It is to everyone’s credit that their joint efforts were brought off with reasonable success, in some places even with positive verve.” If listeners today think he isn’t sufficiently “folk,” that’s their problem. I seriously doubt if either he or the Carters thought in terms of “folk music.” It was a fuzzy concept 80 years ago, and it’s even more complex and subjective today. Ultimately Jimmie Rodgers didn’t care what label you hung on him or his music, so long as he drew audiences and sold records. For whatever it’s worth, when someone says “folk music” in my presence, I find important business elsewhere. There’s a richness and diversity of influence in Rodgers’s music that I don’t hear in country artists today. It’s hard to think of any country artist today who’s open to so many styles of music. As regards the yodel, for instance, you write, “Regardless of where he got it, he made it totally and uniquely his own.” He is credited with popularizing the steel guitar, which he got from Hawaiian music, and he even recorded with Louis Armstrong, the most influential jazz musician of the twentieth century. Rodgers’s relationship with Armstrong especially intrigues me. You call their getting together “one of country music’s unfathomable mysteries.” But you also suggest that their work together was not so improbable as some other writers have led us to believe. Why? I think it’s rather obvious. They were of the same generation and both grew up in the Deep South, shaped by cultural and musical influences that were very much alike. I don’t presume to know what Rodgers’s racial attitudes were—I suspect they were much the same as those of most white Southerners in his time—but I do know that he lived and worked among blacks from an early age, identified with them, and had a natural affinity with their music. Almost from the beginning his recordings were flavored with jazz and blues; he recorded with a black jazz band as early as 1929 (an unissued take of “Frankie and Johnny”), and in 1931 he was backed by the Louisville Jug Band, and also by the St. Louis bluesman Clifford Gibson on a take of “Let Me Be Your Side Track” that didn’t surface until 1991. Ralph Peer was the catalyst that brought Rodgers and Louis Armstrong together, and I doubt if either of them thought twice about what we now view, probably erroneously, as an unusual pairing. A few years ago I had a very strange experience outside of Meridian, Mississippi. I was doing a story on Peter Tosh, the late reggae singer, for a rock magazine, and I was following his band’s bus from Houston to Birmingham. About two miles outside Meridian, the bus broke down. While Tosh and his band members were lounging on the side of the road, I mentioned to them that they were just a few minutes away from the birthplace of a country music legend. Had any of them ever heard of Jimmie Rodgers? They all got excited—“Chee-mie Ro-chers!” Tosh said. “I like his music very much!” That happened just before I read your book. It made me realize the appeal that Jimmie’s music has to transcend race, culture, and time. I don’t think any other country singer, with the possible exception of Hank Williams, has such a broad audience. What would you say is the secret of Jimmie’s appeal? Rodgers’s music is simple, basic, and delivered with an authenticity that gives it universal appeal. His songs range across the spectrum of elemental human concerns—love, work, joy, sadness, death—and he sang honestly of so many walks of life and so many hopes, fears, and dreams of ordinary men and women that almost everyone can identify with what they hear. There is another intrinsic element that really can’t be explained. Jimmie Rodgers possessed a unique combination of voice, instrument, material, and style that distinguishes every enduring musical talent. I’m convinced, along with many others, that music is generational, which means that we should have stopped listening to Jimmie Rodgers long ago. But for all these reasons, we haven’t.
April 19, 2007
Who’s a Strict Constructionist? Posted by Joshua Zeitz at 11:15 AM EST Anyone who was surprised by yesterday’s Supreme Court ruling upholding a federal ban on intact dilation and extraction abortions probably wasn’t paying close enough attention to judicial politics. Seven years ago the Court struck down a similar state law by a 5 to 4 vote. The majority in that case comprised John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, David Souter, and Sandra Day O’Connor. O’Connor’s retirement, and her replacement by the conservative jurist Samuel Alito, all but guaranteed a reversal. This is not the first time that the Court has backtracked from its landmark decision in Roe v. Wade (1973), which barred states from interfering with abortion rights during the first trimester and placed sharp restrictions on their ability to impinge upon women’s reproductive rights before the point of fetal viability. (Roe placed fetal viability at somewhere between six and seven months, thus granting state legislatures some leeway to regulate abortion after the twelfth week.) What’s particularly interesting about yesterday’s decision—alarming to some, heartening to others—is that it places considerable emphasis on what Justice Anthony Kennedy called “ethical and moral concerns.” Namely, the decision readjusts the scales in a way that gives more weight to the state’s interest in protecting the unborn fetus, and less weight to an individual woman’s right to privacy. Roe v. Wade essentially found that a fetus had no constitutional rights until the point of viability. It allowed the states to regulate access to abortion after the first trimester, but until the point of viability, such regulations were permissible only if they were intended to protect the health of the prospective mother. By contrast, yesterday’s decision finds compelling cause for state interference with abortion rights as early as the fourth month of pregnancy, on the grounds of protecting the fetus. This is an altogether new precedent. The Court’s original ruling in Roe v. Wade has withstood considerable criticism over the years, from both the left (Ruth Bader Ginsburg, in her pre-Court days) and the right (Robert Bork). Months after the decision was issued, John Hart Ely, a law professor who had clerked for former Chief Justice Earl Warren, blasted the decision as “bad constitutional law.” In an influential journal article entitled “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Ely developed an argument he had advanced privately with Warren in 1965, when the Court was deciding the case of Griswold v. Connecticut. The Court’s decision in Griswold v. Connecticut, which formed much of the legal precedent for Roe, struck down parts of a Connecticut statute that prevented married people from purchasing birth control products on grounds that the statute violated citizens’ “right to privacy.” Writing for the majority, Justice William Douglas found that while the Constitution included no specific mention of privacy rights, per se, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.” Douglas ruled that the shadows cast by these provisions shielded citizens against unwarranted state intrusion. Though Griswold is popularly considered a prime example of the Warren Court’s propensity to play fast and loose with the Constitution, in fact the Chief Justice shared the concerns of his clerk, who believed that Douglas’s “penumbra” argument was weak. In fairness to Douglas, the privacy argument that he enshrined in law in 1965 was hardly a new one. As early as 1888, when Thomas Cooley famously argued for a Constitutional “right to be let alone,” legal scholars argued that the Constitution safeguarded certain zones of privacy, and this idea was included in several important decisions and dissents at both the state and federal levels. But Ely’s criticism of Roe proved trenchant. Generations of law students have absorbed its central argument that the “privacy rights” maintained in Griswold and Roe are somehow made-up. To believe that these decisions were poorly framed is not necessarily to disagree with their outcome. Ruth Bader Ginsburg has criticized Roe but is clearly a proponent of abortion rights, while Robert Bork, who has decried both decisions, considered Connecticut’s ban on birth control an “outrage.” Were he a state legislator in Hartford, Bork said, “I would vote against that statute instantly.” Writing of Griswold, Bork argued that the right to privacy “does not have any rooting in the Constitution” and “comes out of nowhere.” This argument has proved compelling to many self-styled strict constructionists, who claim that if the Constitution doesn’t specifically mention the right to privacy—and if it doesn’t explicitly identify abortion as falling under that right—then no such right exists. The problem with this argument is that it doesn’t square with the Ninth Amendment, which affirms that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, the Bill of Rights lists some but not all of the rights retained by the people. Douglas’s majority decision in Griswold found that the institution of marriage long-preceded the Constitution, and as such, the right of married people to govern their own sex lives and procreative strategies was one of the ancient common-law rights guaranteed by the Ninth Amendment. Writing for the majority in Roe, Justice Harry Blackmun also located the right to privacy in the Ninth Amendment. Former counsel for the Mayo Clinic in Rochester, Minnesota, Blackmun became well-versed in the medical history of abortion. As he explained in his majority decision, “it perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.” In 1787, when the Constitution was drafted, as a matter of “common law, abortion performed before ‘quickening’—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense.” When states began restricting the right to abortion, in the mid-nineteenth century, they usually did so with the express purpose of safeguarding the health and safety of the mother. This made some sense, given the dangers associated with abortion in the era before modern medicine. But subsequent improvements in the medical sciences rendered abortion a safe procedure and thus undermined the rationale for these nineteenth-century restrictions. “Strict constructionists” like to argue for a literal reading of the Constitution. If a certain right is not embedded in its text, it doesn’t exist. But as Douglas and Blackmun demonstrated, citizens enjoyed a host of common-law privacy rights prior to—and at the time of—the Constitution’s enactment, and these rights fall under the rubric of those “rights . . . retained by the people” protected by the Ninth Amendment. If “strict constructionists” don’t like abortion, the onus is on them to amend the Constitution and remove a right that was guaranteed to women at the time of its original drafting. Pro-life activists might respond to this argument by noting that we know more about fetal development today than did the Founding Fathers in 1787. This is true, and undoubtedly many Americans sincerely agree with Justice Kennedy that abortion poses “ethical and moral concerns.” But as Robert Bork once argued, “We have to accept that there’s a difference between laws that embody bad policy and laws that a state legislature lacks the power to enact. A law can be bad—like the Connecticut law in Griswold—without being unconstitutional.” By the same logic, a law can be immoral without being unconstitutional. Since 1973, the pro-life movement has cloaked itself in the “strict-constructionist” argument. The pro-choice movement would do well to deconstruct this syllogism. Whether abortion is good or bad, it was a common-law right in 1787, and as such, it is protected by the Constitution.
April 17, 2007
Reacting to Tragedy II Posted by John Steele Gordon at 04:10 PM EST I certainly agree with Alexander Burns that there will be a time for investigating and finger-pointing and second-guessing, but it is not now. It is an inherent misfortune of television, I think, that even when there is nothing to say, TV journalists and commentators must still speak. And so they do, all too often making fools of themselves in the process. His reference to Robert Kennedy’s eloquent quote from Aeschylus reminded me of Kennedy’s speech at the 1964 Democratic Convention, when he gave a tribute to his brother the late President, not yet 10 months dead. Before an auditorium filled with tens of thousands of hushed people he ended with a quotation from Shakespeare (Romeo and Juliet, III:2:21–25). The words have haunted me ever since I heard him speak them, now 43 years, and two thirds of a lifetime, ago: . . . when he shall die,
Take him and cut him out in little stars,
And he will make the face of heaven so fine
That all the world will be in love with night
And pay no worship to the garish sun.
April 17, 2007
Reacting to Tragedy Posted by Alexander Burns at 12:30 PM EST Fred Allen has written, briefly and eloquently, that in the wake of the Blacksburg tragedy, “History . . . stands silent with the rest of us at this moment.” Would that this were true, that the rest of us really were silent. But it seems that the inevitable finger-pointing has already begun. On his nightly program yesterday, Alan Colmes was not alone in demanding answers to questions like, “Why was there a two-hour lapse in between shootings? Why weren’t students notified earlier of the danger?” As Colmes’s cohost, Sean Hannity, commented, “There are a lot of questions being raised tonight about the security issue.” Cable news hosts were not the only people chattering about Blacksburg last night. Presidential candidates also began reacting to the day’s events, with Senator John McCain declaring, “We have to look at what happened here, but it doesn’t change my views on the Second Amendment.” As if anyone could possibly care, on a day like yesterday, what John McCain thinks about guns. There should certainly be a full investigation into what happened at Blacksburg. We should seek to answer all the relevant questions about campus security, mental health treatment, and the distribution and availability of guns. For the time being, though, there are professionals dealing with the immediate aftermath of the shooting. The rest of us, including politicians and pundits, might think about letting these professionals do their work and, in the meantime, making use of today as a time to mourn. History, as Fred Allen says, provides no easy advice for dealing with calamities like the one at Virginia Tech. I’d suggest that history does offer some examples for national leaders trying to remark on such a tragedy. Robert Kennedy’s unscripted reaction to the news of Martin Luther King’s death remains, I think, the best example of this. I know it has been on my mind today. On the day after Blacksburg, we might reflect on Kennedy's mournful quotation from Aeschylus: “In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, against our will, comes wisdom through the awful grace of God.”
April 17, 2007
The Tragedy at Blacksburg Posted by Frederick E. Allen at 08:00 AM EST The horror at Blacksburg yesterday leaves all of us searching for answers. We aren’t even certain yet that there was only one gunman. What can history tell us? History, I think, stands silent with the rest of us at this moment. Recent history forces us to ask an especially dark question—could this be a new kind of planned, organized suicide attack, a new manifestation of the organized terror that has gripped the globe in recent years? But there is no evidence of that and no cause, at least so far, to expect any. The chance seems remote. Looking at other recent massacres—Columbine, Oklahoma City—we find no more than one or two deranged individuals behind them. Jack Kelly addressed this in his AmericanHeritage.com article on the 1966 mass murder in Austin, Texas, which was until yesterday the deadliest school shooting in American history. In that case the shooter, on the University of Texas campus, killed 15 and injured 31 over a period of an hour and a half before being shot dead himself by SWAT officers. He was a 25-year-oldd named Charles Whitman. He had a brain tumor that may have affected his behavior. He had been a heavy user of methamphetamines. He hated his father with “a mortal passion.” He had been court martialed from the Marines for disciplinary problems. But the vast majority of people who fit any of those descriptions never kill anyone. No explanation ever truly made sense of what had happened, and probably none could. As Jack Kelly wrote, “It’s no fun for us who are left to contemplate the senseless violence that erupts from the clear sky of a seemingly normal personality. We are left only with the stark tragedy itself, and its victims, who are not numbers but human beings.”
|
