Book Reviews

Lincoln’s Code: The Laws treaty include a clause requiring the of War in American return of the slaves, and later, as secre- History tary of state and President, Adams sought By John Fabian Witt compensation from Great Britain for the Free Press, New York, NY, 2012. 502 pages, $32.00. slaves’ owners. Witt accuses Adams of Reviewed by Burrus M. Carnahan doing more than anyone else “to associ- ate the United States with the view that civilized nations sheltered slavery from John Fabian Witt believes that the war’s destruction” and then reversing law of war has played a crucial, but course while serving in Congress. This is a neglected, role in United States history. bit unfair, since it was Adams’ duty, when In Lincoln’s Code, which is a well-written serving as a U.S. official, to represent the book, based on impressive research, he interests of all American citizens, includ- redresses that neglect, concentrating on ing slaveholders, whatever his personal the period between the Revolutionary views on slavery and the law of war. War and World War I. According to Witt, a great reversal The “code” referred to in the title of America’s positions on the law of war is the U.S. Army’s General Orders No. came in April 1863, when the U.S. War 100, “Instructions for the Government of Department issued General Orders No. Armies of the United States in the Field,” 100. In 157 articles (set forth in an appen- freedom of all slaves held in territory dated April 24, 1863. Drafted princi- dix to Lincoln’s Code), this General controlled by the Confederacy. In draft- pally by Dr. Francis Lieber of Columbia Order summarized the law of land war- ing the General Orders, Lieber reversed University, it was a summary of the laws fare for the guidance of U.S. officers and the pre-war U.S. policy of protecting slave and usages of war as they existed at the soldiers. And guidance was needed. At property in war and instead codified the time, and is commonly referred to as the the end of 1860, the United States Army Emancipation Proclamation as perma- “Lieber Code.” For reasons explained consisted of slightly more than 16,000 nent policy in Articles 42 and 43 of the later in this review, Witt believes it should officers and men. By 1865, almost a mil- orders. In response to the Confederacy’s more properly be called “Lincoln’s Code,” lion men would be serving under arms. refusal to treat African-American soldiers hence the title of the book. Almost all the officers in the Civil War had as prisoners of war, but instead to send From the Revolutionary War to the been appointed from civilian life, and had them into slavery or to execute them, Civil War, American diplomats, politi- no knowledge of the laws and customs of Lieber declared that international law cians, and lawyers urged international war. General Orders No. 100 would fill “knows no distinction of color,” and that acceptance of rules intended to protect this gap in their knowledge. it was a violation of the law of war to deny civilians and prisoners of war from mis- Witt, however, sees more radi- prisoner of war status on the basis of race treatment. Witt demonstrates, however, cal motives behind General Orders No. (Articles 57 and 58). In Witt’s opinion, that they concentrated most of their 100. He believes there is a tension in therefore, “it was Lincoln’s Emancipation efforts on protecting private property American thought on the law of war Proclamation that required [the General from seizure or destruction in both land between humanitarian idealism, on the Orders’] production,” and “once we see and sea warfare. Protecting neutral prop- one hand, and the desire for justice, on the Union’s instructions as arising out of erty in naval warfare was of particu- the other. This tension arises, he argues, the crucible of slavery, the order is bet- lar concern to American politicians and from the temptation to discard humani- ter thought of as Lincoln’s Code” than jurists, and was a purported basis for the tarian principles in order to fight more as Lieber’s code. The demands of justice War of 1812. effectively for causes believed to be just, for slaves and colored soldiers had tri- The dark side of this policy was its most notably the abolition of slavery, umphed over the previous generation’s application to protecting slave proper- during the Civil War. Witt argues that Dr. ideal of protecting property. ty. During the negotiation of the Treaty Lieber succumbed to that temptation in Witt also argues that the Union’s pur- of Ghent, ending the War of 1812, the drafting General Orders No. 100, although suit of justice triumphed over the custom- head of the U.S. delegation, John Quincy the “humanitarian” principle he discarded ary usages of war in much of the rest of Adams, argued that British commanders was the right to property—specifically, General Orders No. 100 as well. It was not had acted improperly when they prom- property in slaves. really a codification of existing rules and ised freedom to American slaves who fled President Lincoln had issued his final state practice, he believes, but rather an their masters and took refuge with the Emancipation Proclamation on Jan. 1, “unsettling critique of the orthodox laws British. Adams insisted that the peace 1863, thereby recognizing the immediate of war” that approved General Sherman’s

March 2013 • The Federal Lawyer • 91 indiscriminate artillery bombardment of However, as to the remainder of the enemy, are to be measured by Atlanta in 1864. Witt repeatedly refers General Orders No. 100, Lieber may the object of the war. Until that to General Orders No. 100 as a “fierce” have done little more than what the object is attained, the belligerent document. War Department asked of him—restat- has, strictly speaking, a right to use This view of General Orders No. 100 ing the contemporary laws and usages every means necessary, to accom- centers on Lieber’s adoption of military of war based on empirical evidence of plish the end for which he has necessity as a legal principle. Witt notes belligerent practice. If the order was taken up arms.1 Lieber’s admiration for his fellow Prussian really a “fierce” and “unsettling critique Carl von Clausewitz, who viewed war of the orthodox laws of war,” it is hard to This sounds very much like Article 14 as a means to gain political ends, and understand why, as Witt himself points of General Orders No. 100, which defined Witt believes that this influenced Lieber’s out, “humanitarian reformers” in Europe military necessity as “the necessity of treatment of military necessity. Article welcomed it as heralding “a new epoch of those measures which are indispensable 14 of General Orders No. 100 defined moral progress” that would “ameliorate for securing the ends of the war.” military necessity as “the necessity of the horrors of war.” General Orders No. 100 remained the those measures which are indispensable Lieber wrote at a crucial time in the Army’s official guidance on the law of war for securing the ends of the war, and development of Western international for the next 50 years. It even had some which are lawful according to the modern law. Legal philosophy was turning away impact on the Army’s practices during law and usages of war.” Critics of Article from the natural law tradition of the 18th the Indian wars. Its influence broke down 14, including Confederate officials during century towards positivism, the theory during the Philippine Insurrection in the the Civil War, often fail to understand the that law could be based only on rules early 20th century, when many officers significance of the final clause in Lieber’s issued or recognized by sovereign states. resorted to torturing Filipino guerrillas definition. If there is an existing rule or For international law, positivism meant for information. Witt notes, ironically, usage forbidding a practice, then “mili- reliance on treaties and customary rules. that when the Army finally issued a new tary necessity” will not justify violating Lieber was ideally suited to write a manual on the law of war in 1914, it was that rule. Military necessity, for example, concise, positivist, restatement of the law drafted by an officer who had actively could not justify torture, or “the infliction of war based on the actual practice of used torture in the Philippines. of suffering for the sake of suffering or belligerent states. Born in Prussia, he was Whether or not one agrees with all of for revenge,” or the use of poison (Article a combat veteran of the final campaign Witt’s conclusions, he has clearly proven 16). Military necessity thus serves as a of the Napoleonic Wars, and was badly his central thesis, that law of war issues gap-filling legal principle, to be applied wounded at the battle of Namur. His old- had a significant impact on 19th-century only where established rules and usages est son died fighting for the Confederacy, American history. This is a major work do not exist. while his two younger sons joined the that deserves to be read by anyone inter- Perhaps Witt is correct, and Lieber , and one lost an arm at the ested in the origins of the modern law of deliberately drafted a document that put battle of Ft. Donelson. The law of war was war and its role in U.S. history.  fewer restraints on the U.S. Army than not a purely academic matter for Lieber. other legal scholars would have recog- Earlier in his academic career Lieber Burrus M. Carnahan is a professorial nized, because he believed that the United had written a work called Manual of lecturer in law at the George Washington States government was fighting a just war Political Ethics, part of which dealt with University in Washington, D.C. His J.D. to end slavery and restore the Union. Witt the law of war. In preparation for this degree is from Northwestern University is certainly right that Lieber stretched work, Lieber amassed a vast file of inter- (1969), and he holds an LL.M. from the the contemporary usages of war when he national state practice, which he used University of Michigan (1974). From asserted that “if a person held in bondage again to draft General Orders No. 100. 1969 to 1989 he served as a Judge … be captured by or come as a fugitive If that document was “fierce,” it may Advocate in the U.S. Air Force, special- under the protection of the military forces be because in the mid-19th century the izing in international legal issues. of the United States, such person is imme- accepted laws and usages of war were diately entitled to the rights and privileges fierce, and not because Lieber deliberate- Endnote of a freeman” (Article 43). Earlier in the ly altered them to help the Union army. 1. Henry Wheaton, Elements of Civil War, Union commanders had often Nor did Lieber need to consult International Law: With a Sketch of the returned slaves to their owners or refused Clausewitz in order to conclude that mili- History of the Science, 249. (Reprint to grant them sanctuary. It is true that dur- tary necessity should be measured by the of the 1836 edition by The Law Book ing the Napoleonic Wars and the colonial purpose of a war. Twenty-five years ear- Exchange, Ltd., 2002). wars of the 18th century, Great Britain, lier, Henry Wheaton, the first American France, and Spain had frequently granted to write a treatise on international law, freedom to enemy slaves, but the practice began his chapter on the law of war with was not universal and a slave’s right to the following language: freedom depended on specific declara- tions issued by the military authorities In general, it may be stated, that concerned. the rights of war, in respect to

92 • The Federal Lawyer • March 2013 Lincoln’s Hundred and 1862, and many more slaves turned Days: The Emancipation themselves into contraband. Proclamation and the “Through the summer and fall of War for the Union 1861,” writes Louis Masur in Lincoln’s By Louis P. Masur Hundred Days, “discussions of eman- The Belknap Press of Harvard University Press, cipation saturated newspaper columns, Cambridge, MA, 2012. 358 pages, $29.95. lecture halls, and Congress. ... [I]ntellec- Reviewed by Henry Cohen tuals and activists ... seized on the issue of war power and military necessity to try to persuade Lincoln’s administration that it always hated slav- could legally take action against slavery.” ery, but he believed that the Constitution One reformer wrote that, when a procla- protected it in the states where it existed. mation of emancipation “has been widely On March 4, 1861, in his first inaugu- scattered and proclaimed, and the slaves ral address, he said that “the only sub- understand it—as they would marvel- stantial dispute” between the North and ously soon—we have a nation of allies in the South was whether slavery ought the enemies ranks. There is a foe in every to be extended into the territories. “I Southerner’s household.” have no purpose,” he said, “to interfere Through the first half of 1862, how- entitled to the protections of the U.S. with the institution of slavery in the ever, Masur writes, “Lincoln was willing Constitution. States where it exists.” Nevertheless, the to accept slavery ... in order to end the Lincoln finally decided, however, that, Southern states seceded, announcing in war and preserve the Union.” At this under his power as commander in chief their secession documents that they were point, the only step that he took toward of the Army and Navy, he could, as a doing so to protect the institution of slav- emancipation was to offer the border military necessity, free the slaves in the ery. On April 12, 1861, the South fired on slave states that had remained in the states that were in rebellion. After all, Fort Sumter, starting the Civil War. Later Union—Delaware, Maryland, Kentucky, the slaves were being forced to assist the that same month, an anti-slavery activist and Missouri—compensation if they Confederate war effort, and many of them wrote, “The first gun fired at Fort Sumter would gradually free their slaves. Even would be willing to fight for the Union. On rang out the death-knell of slavery.” “The this, however, was recognized as, for the Sept. 22, 1862, Lincoln issued the prelimi- conviction is permeating the mind of first time, placing the federal government nary Emancipation Proclamation, which the North,” noted another writer, “that on the side of freedom. Persuading the stated that, on Jan. 1, 1863, all persons in some way or other Slavery is to go border states to begin to emancipate their held as slaves within any state then in down in this struggle to its final death.” slaves would also help to win the war, rebellion, “shall be then, thencefoward, Lincoln’s secretary John Hay observed, because it would end the danger of their and forever free.”1 Lincoln did not realize “What we could not have done in many seceding. at the time that Jan. 1 was exactly 100 lifetimes the madness and folly of the Even the abolitionist senator Charles days after Sept. 22, but that fact gives south has accomplished for us. Slavery Sumner was willing to support compen- Louis Masur’s book its title. Lincoln’s offers itself more vulnerable to our attack sated emancipation, although he viewed Hundred Days, however, is divided into than at any point in any century. ...” it as ransom. “Never,” he said, “should three parts, with only the second part Whether these men revealed foresight any question of money be allowed to devoted to those 100 days. The first part or wishful thinking, they were right, and interfere with human freedom.” But the discusses the period leading up to the slavery started to fall even before Lincoln border states rejected Lincoln’s proposal, preliminary Emancipation Proclamation, issued the Emancipation Proclamation on causing him to realize that “emancipation and the third part discusses the reactions Jan. 1, 1863. In May 1861, three slaves of the slaves in the rebel States must pre- to the final Emancipation Proclamation, who were being transported to aid seces- cede that in the border States.” which Lincoln did sign on Jan. 1, 1863. sion forces in Virginia escaped to Union Sumner and other abolitionists urged What distinguishes Lincoln’s Hun- lines. General decided Lincoln to emancipate the slaves regard- dred Days from other books on the that the Fugitive Slave Act of 1850 did not less of the Constitution. “The Rebels have Emancipation Proclamation is that it does apply to foreign countries, which Virginia gone outside the Constitution to make not focus on Lincoln or his cabinet so considered itself to be. In addition, the war upon their country,” Sumner said. much as on other people’s views of and law of war allowed the capture of contra- “It is for us to pursue them as enemies reactions to the preliminary and final band property, and Virginia considered outside the Constitution. ...” Secretary Emancipation Proclamations: soldiers, these three men to be property. Butler, of the Navy believed that lawyers, clergymen, diplomats, members therefore, hoisting the slave holders on the rebels “could not at the same time of Congress, slaves, newspaper editorial- their own petard, would not return the throw off the constitution and invoke its ists, foreigners, and others. Masur has slaves, and his ingenious idea became aid.” But Lincoln never recognized the done an impressive amount of research Union policy. Congress codified Butler’s legality of secession. He considered the in digging up obscure sources, and he has policy in the of 1861 Confederate states to be in the Union and deftly organized it into a gripping narra-

March 2013 • The Federal Lawyer • 93 tive. We read of the opinions of, among deliberate mind, slow to form a judgment, Endnote many observers, Polish emigré Count patient in hearing all sides and investi- 1. In the June 2012 issue of The Adam Gurowski (whose diary survives), gating facts; but once having arrived at Federal Lawyer, in the second para- former Supreme Court justice Benjamin a conclusion, and convinced himself of graph of my review of Emancipating Curtis, Harvard professor Theophilus its rectitude, no power can swerve him Lincoln, by Harold Holzer, I mistakenly Parsons, New York attorneys including from it.” wrote that the preliminary Emancipation George Templeton Strong (another dia- “For many soldiers,” Masur writes, “the Proclamation was an implementation of rist), and lawyer John Codman experience of war turned them against the Confiscation Act of 1862. In fact, like Ropes. We also hear from more famous slavery.” When their units moved into the the final Emancipation Proclamation, it personalities, including Karl Marx and South, many of them witnessed slavery was based on the President’s power as , both of whose for the first time, “[a]nd the flood of con- commander in chief of the Army and remarks during the 100 days Masur trabands into Union lines certainly helped Navy. quotes. to humanize slaves for the soldiers. ...” In an article for the Viennese daily Die Even though some soldiers deserted Presse published on Oct. 12, 1862, Marx rather than fight for the slaves, most of Executive Employment noted that Lincoln’s “most redoubtable them, even those who were unhappy with Law: Protecting decrees ... all look like, and are intended the Emancipation Proclamation, under- Executives, to look like, routine summonses sent by stood that “the army was not a democ- Entrepreneurs and a lawyer to the lawyer of the opposing racy and it was their job to support the Employees party. ... His latest proclamation, which is orders of the commander-in-chief.” Some By Jotham S. Stein drafted in the same style, the manifesto did not care to fight side by side with Oxford University Press, New York, NY, 2011. 274 pages, abolishing slavery, is the most important freed slaves, but concluded, “if Old Abe $225.00. document in American history since the thinks it’s the best thing to do, all right; Reviewed by V. John Ella establishment of the Union, tantamount we will stand by him. Lincoln is solid to the tearing up of the old American with the boys all right.” Masur writes, According to an article in the Sept. Constitution.” Thus, Richard Hofstadter “In many cases the soldiers, black and 18, 2000, issue of Lawyers Weekly, was not entirely original when he com- white, literally carried the Emancipation “there are three types of entities in the pared the Emancipation Proclamation to Proclamation with them,” to distribute to workplace—employers, employees, and a bill of lading. slaves. Abolitionist and railroad magnate executives.” Since reading the article, I Emerson recognized that the prelimi- John Murray Forbes, his son reported, have consciously devoted part of my law nary Emancipation Proclamation changed “had 1,000,000 copies printed on small practice to “executive law,” including the purpose of the war from mere reunion slips, one and a half inches square, put the negotiation of executive contracts, of the states to a moral crusade: “This act into packages of fifty each, and distrib- restrictive covenants, and severance makes that the lives of our heroes have uted among the Northern soldiers at the agreements. I therefore found myself not been sacrificed in vain. It makes vic- front, who scattered them among the searching Amazon.com on my I-pad late tory of our defeats. Our hurts are healed; blacks, while on the march.” one night to see if any recent books the health of the nation is repaired.” As Silas Shearer, a private with the 23rd had been written on the topic of execu- Masur notes, union was a restorative Iowa, wrote to his wife, “Since I have got tive employment law. Jotham S. Stein’s idea, but emancipation was a transforma- down here and seen what Slavery was treatise seemed to fit the bill. The $225 tive one. The Emancipation Proclamation ... it has changed me considerable. ... price tag being almost shockingly steep, I “made the abolition of slavery a means, When I was at home I was opposed to the and, in doing so, it became an end.” medling of Slavery where it then Existed Emerson added that the prelimi- but since the Rebls got to such a pitch nary Emancipation Proclamation “is not and it became us as a Military needsisity a measure that admits of being taken ... to abolish Slavery and I say Amen to back,” but he need not have feared, it and I believe the Best thing that has because Lincoln said that “he would been done Since the War broke out is the rather die than take back a word of the Emancipation Proclamation.” Lincoln said Proclamation of Freedom.” As Masur dis- exactly the same thing, if in a more pol- cusses, Republican defeats in the 1862 ished manner. As Lincoln grew, so grew elections did not deter Lincoln. On Dec. the nation.  12, 1862, Harriet Beecher Stowe reported to that “Everybody I Henry Cohen is the book review edi- meet in New England says to me with tor of The Federal Lawyer. He reviewed anxious earnestness—Will the President other books on the Emancipation stand firm to his Proclamation?” But Proclamation in the September 2004, a Philadelphia newspaper reminded its September 2006, March/April 2010, and readers that “Mr. Lincoln is a man of June 2012 issues of The Federal Lawyer.

94 • The Federal Lawyer • March 2013 found a pristine used copy for less than al workplace law firm Jackson Lewis half that amount and decided to take a LLP in its Minneapolis office. chance. I really enjoyed this book. If you work Endnote in this niche area of the law you will 1. The algorithms at Amazon.com also appreciate Stein’s anecdotes and observa- thought I might want to buy Executive tions of the executive species in its native Employment Agreements Line by Line, environment—in this case Silicon Valley. by Arthur F. Woodward, a partner at Kaye Stein started as a lawyer at the Palo Alto Scholer LLP in New York City, so I did. office of the Wilson Sonsini firm, which This is a slimmer volume, which breaks has been ground zero for the California down a typical agreement (as promised in high-tech industry. Although his views the title) line by line, but I discovered no on executive law have a California patina, particular insights in its pages. he cites case law and examples from around the country and does not skimp on his chapter about non-compete agree- The 10 Stupidest Mistakes ments, which are generally prohibited in Men Make When Facing California. Divorce and How to Avoid Unlike some employment law attor- Them tions and take away her advantages.” neys, Stein does not shy away from the By Joseph E. Cordell Cordell provides many stories of his intellectual property, securities law, and Three Rivers Press, New York, NY, 2010. 230 pages, clients, whom he portrays as success- tax aspects of representing executives. $15.00. ful professionally but kindly dunces in Instead he tackles these complex and Reviewed by Caroline Johnson Levine their personal lives. One such client was technical areas of the law head-on, in a an architect who provided his college comprehensive, yet easy to understand, The 10 Stupidest Mistakes Men sweetheart with a comfortable lifestyle. fashion. His summary of 409A of the Make When Facing Divorce and How He woke the children every morning, Internal Revenue Code is the best I have to Avoid Them is written in a caring and dressed them, made breakfast, packed read, and his knowledge of Securities empathetic manner to the man who is lunches and backpacks, chauffeured and Exchange Commission regulations facing divorce. Its advice, however, could them to school and made sure to read is impressive. At the same time, he has a apply to either gender, as it is, essentially: them bedtime stories. The sweetheart keen eye for the human story in employ- protect your legal rights! That can be dif- wife, by contrast, spent her time “playing ment law, which is helpful because even ficult to remember at a time when emo- tennis and shopping and having lunch the highest paid and most successful tion tends to prevail over logic and good with her friends,” while leaving the chil- business people sometimes have difficulty old-fashioned business sense. dren at grandma’s house and disappear- separating their emotions from their legal One wonders why Cordell has devoted ing for hours. One night, the sweetheart needs. He tells his stories through a series his entire practice to representing men in announced that she wanted a divorce of examples with names changed to pro- divorces, thereby losing 50 percent of his because the architect simply did not tect the wealthy, and he shows how most potential clientele. But this book is not make her happy anymore. She insisted executive law disputes can be steered to an autobiography; it is a “how to” book that the architect move out immediately, a win-win outcome with good counseling for men who seek a divorce—particularly because, if he did not, she would “call the and advocacy. those who need an aggressive attorney police. I’ll tell them you hit me. They’ll Even though I have practiced execu- to protect their rights. Cordell advises, take you away in handcuffs. And I will tive law for almost 15 years, I discovered for example: “Sometimes the advantage get a restraining order that keeps you out several new concepts in this book, includ- in filing [for divorce] first, as any number of the house anyway. I’ll keep you away ing a new spin on anti-dilution provisions, of classic texts about real military battles from the kids, too.” indemnification “expense advance” provi- agree, comes from surprise. She intends Cordell insists that mistake number sions, and “no mitigation” clauses (none to file for divorce. She never anticipates one is to move out of the family residence. of which I have seen in any Midwestern that her husband—the poor schmuck— In the architect’s circumstances, Cordell executive contracts), as well as nego- will file first.” In this book, every husband acknowledges that “moving out may be tiation tips. Stein also provides helpful is a saint and every wife a sinner, and men necessary, at least for a few days until sample contracts and even sample letters. are advised to approach divorce with a things calm down.” But Cordell makes a Executive Employment Law is cur- military-style strategy designed to defeat compelling case that, if the husband pays rent in areas such as the Dodd-Frank the enemy. Cordell believes that the law the mortgage, then he should be allowed Act clawback provisions. I recommend tends to assume that mothers are bet- to stay in the house and not pay for his it highly not only to practitioners, but to ter custodians of children and that they wife to enjoy a better lifestyle than he executives and entrepreneurs as well.1  require perpetual financial support after does, in a studio apartment that cannot the dissolution of a marriage. His goal in accommodate visits from the children. In V. John Ella is of counsel to the nation- this book “is to undercut those assump- fact, a husband’s remaining in the marital

March 2013 • The Federal Lawyer • 95 residence may defeat a wife’s otherwise off of any affianced male. When Divorcing a Woman, Who Will powerful argument: “He moved out and Although Cordell illustrates well the Surely Become an Enemy Combatant. left us.” Cordell advocates that, if a man problems and frustrations that men may In fairness, though, one should note that does move out, he should move back in face if they wait too long to retain a Cordell employs many female attorneys immediately. One wonders how the wife divorce attorney, he should recog- because he believes that there can be a will react when she arrives home to find nize that marriages waver and vacil- psychological advantage in the courtroom her husband relaxing in the recliner in his late through the seasons. Like a tree in to having a female attorney representing boxer shorts with a bag of cheese puffs. autumn, whose leaves turn brown and fall men in divorce cases. Cordell lists important actions that a gradually, divorce is a slow process, laden These criticisms aside, The 10 husband must take in order to survive the with the memory or promise of its glori- Stupidest Mistakes Men Make When divorce process with some shred of digni- ous springtime greenery. The frequently Facing Divorce and How to Avoid Them ty. In addition to filing for divorce first, he slow evolution from marriage to divorce conveys Cordell’s passion for family law should maintain positive contact with the prevents people from aggressively and and does an excellent job of presenting children, keep accurate financial records, single-mindedly chopping down a tree the issues that anyone contemplating or refuse to speak to his wife, refrain from that took many years to grow. engaging in divorce should consider.  revealing too much on the Internet, and I have two criticisms of this book: meticulously prepare his testimony. The its promotion of Cordell’s law firm and Caroline Johnson Levine is a gradu- husband should also itemize the property it unrelenting bitterness to women in ate of the Florida State College of Law. at home—“the longer and more valuable divorce cases. As for the first, the book She worked as a criminal prosecutor the list, the better for you when negotiat- occasionally appears to be an advertise- for 10 years and now practices civil ing a financial settlement.” He advises ment for the Cordell & Cordell, P.C. litigation trial and appellate work in husbands that, if your wife goes to court Cordell offers excellent advice to a man Tampa, Fla. saying that she needs money from you to in choosing a divorce lawyer: consider buy furniture or dishes, but “you have an the lawyer’s experience, price, empathy, inventory, with photos, showing ... a well- availability, and exclusive dedication to America’s Unwritten stocked house ... , she won’t get far with representing men in family law cases. Constitution: The those arguments.” In doing so, however, Cordell skillfully Precedents and Cordell advises that a man should weaves in comments such as, “Our firm Principles We Live By hire a lawyer “the very second that the offers our clients an online calendar- By Akhil Reed Amar thought of divorce first occurs. ... Maybe ing program that they can access from Basic Books, New York, NY, 2012. 615 pages, $29.99. it’s the first time they have an argument anywhere—home, work, on the road—to Reviewed by Jon Blue and she says ‘I can’t live like this any- record events.” He leads the reader to more.’ Maybe it’s before she actually says believe that, in order to have a fighting All of us in the legal trade know that or does anything,” but he realizes that chance, one must hire Cordell’s firm. there’s more to constitutional law than they’re drifting apart. Cordell advocates The 10 Stupidest Mistakes Men Make the Constitution. The foundation stones this aggressive approach so that a man When Facing Divorce and How to Avoid of the modern constitutional edifice— and his attorney can begin to formulate a Them views a wife as an exotic creature from Marbury v. Madison to Brown v. strategy if the divorce ever begins. Given who is cute and loveable when you first Board and beyond—could not possibly the fees of a divorce attorney, however, meet her, but who turns into a mischie- have been created by reference to the this advice may reveal more concern for vous reptile with sharp teeth and claws. four corners of the constitutional text the family law bar than for the husband, Cordell tells so many horror stories of alone. History, policy considerations, and who might have difficulty explaining to women that he leaves the impression that judicial precedent have all played vital his wife the disappearance of thousands they perpetually engage in cruelty against roles in building the law. Virtually every of dollars from a joint bank account. If a unsuspecting and ill-equipped men. It is constitutional decision, major or minor, husband should hire a divorce attorney surprising that the book’s cover does not made by every judge in the land, requires every time that his wife complains or portray Linda Blair in “The Exorcist.” reference to some extratextual source. seems unhappy, then it might be best It is possible that Cordell’s myopic But once a judge leaves the constitu- to do so immediately after the vows are view developed from his long experi- tional text, what sources should guide his exchanged! ence in protecting the legal rights of or her decisions? There, as Hamlet would To do the most damage control, men. It is one thing to warn in the book’s say, is the rub. Confine yourself too tight- Cordell should consider offering this book title that men can make stupid mis- ly to the four corners of the document, at courthouse offices issuing marriage takes when facing divorce, but it is quite and you’ll never be able to decide any- licenses or on wedding websites. Perhaps another to write an entire book portray- thing. Stray too far from those confines, naïve lovebirds should be required to read ing women as aggressively attempting and you’ll be making a decision based this book prior to receiving a marriage to destroy men so that there is nothing on your personal preferences—which no license. Of course, that might result in the left for the buzzards to pick over. A bet- judge wants to do (and certainly no judge end of marriage in our nation. This book ter title for this book might have been: wants to be seen as doing). would certainly scare the proverbial pants The 10 Stupidest Mistakes Men Make Of course, if you’re a lower-court

96 • The Federal Lawyer • March 2013 judge, you can do your best to read America’s unwritten Constitution. When to “all persons born ... in the United the tea leaves of Supreme Court deci- viewed properly, America’s unwritten States.” Dr. King’s famous quotation from sions. But what if you’re on the Supreme Constitution supports and supplements the Declaration of Independence—“all Court? There things are a little different. the written Constitution without sup- men are created equal”—also reflects the You work against the backdrop of more planting it.” Fourteenth Amendment’s central vision than two centuries of Supreme Court The notion that constitutional law has of birth equality. jurisprudence. You have eight colleagues been shaped by extratextual forces is Chapter 7, entitled “‘Remembering the nominated by different Presidents and a hardly new. Amar’s great contribution Ladies’: America’s Feminist Constitution,” squadron of clerks to consult if you’re so is to relate some of the great thematic provides another example of Amar’s inclined. But the Constitution is ultimate- developments of constitutional history to creative approach. The Nineteenth ly in your hands to construe as you see the words of the Constitution itself. The Amendment, ratified in 1920, famously fit. So, once again, exactly what authority scope of his work is almost as broad as the granted women the right to vote. But should guide you? Constitution itself, but his technique can does the amendment implicitly extend This is the great question that Akhil be illustrated by discussing a couple of beyond the realm of suffrage itself? Its Reed Amar seeks to address in his representative (and controversial) chap- text grants no more than “[t]he right ... ambitious work, America’s Unwritten ters. to vote,” and a proposed amendment Constitution. He gives it a good try, Chapter 6, entitled “Honoring The explicitly designed to invest women with but it is not clear that he succeeds, and Icons: America’s Symbolic Constitution,” broader constitutional rights (the Equal it’s less clear that he could succeed. provides a good example of Amar’s Rights Amendment) later failed of rati- One problem facing any scholar attempt- ambitious agenda. “America’s sym- fication. But Amar views the Nineteenth ing to capture our “unwritten constitu- bolic Constitution,” he contends, “sure- Amendment as representing what he calls tion” is that constitutional law has been ly includes (but is not limited to) the “The Suffrage Revolution.” That revolu- shaped by so many forces over so many Declaration of Independence, Publius’s tion, which extended the franchise more years that a comprehensive description The Federalist, the Northwest Ordinance, than any preceding amendment, pro- becomes impossible. Lincoln’s , the Warren vides the occasion for the courts and the Amar’s new book is a sequel to his Court’s opinion in Brown v. Board, and people to realize broader gender rights well-received America’s Constitution: Dr. King’s ‘I Have a Dream’ speech.” inherent in the broader constitutional A Biography (2005). At the end of that Four members of this remarkable text. Amar points out that the principle book, he noted, “I ... do not believe that catalogue will strike most legal analysts of popular sovereignty underpins the all of American constitutionalism can as intuitively obvious, while two oth- entire constitutional document. The First be deduced simply from the document. ers appear, at first blush, to be admi- Amendment says nothing about voting, At key points the text itself seems to rable but misplaced. The Declaration but the freedom of speech is designed for gesture outward, reminding readers of of Independence, The Federalist, and a democracy in which citizens have the the importance of unenumerated rights the Northwest Ordinance all, to some right to vote. The Fifteenth Amendment above and beyond textually enumerated degree, reflect the views of the found- was deemed necessary because it was ones.” Amar picks up on this theme in ing generation, and Brown v. Board unthinkable that men (at least) could be the introduction to America’s Unwritten is one of the most celebrated Supreme free yet excluded from the franchise. We Constitution: “[T]he written Constitution Court decisions of all time. To say that know that the First Amendment and the itself invites recourse to certain things these documents are integral parts of Reconstruction amendments have had outside the text—things that form the fabric of our unwritten constitution effects going far beyond suffrage itself. makes perfect sense. But what about the Why not the Nineteenth Amendment? Gettysburg Address and the “I Have a Amar argues that the Nineteenth Dream” speech? Everyone admires these Amendment had “surprising ramifica- icons, but how are they part of our tions for women’s personal lives.” For unwritten constitution? example, a married woman could vote Amar provides a series of tex- differently from her husband. She could tual answers. He points out that the have different ideas and even a differ- Gettysburg Address explicitly invokes ent domicile. In addition—here Amar the Declaration of Independence. (“Four echoes John Hart Ely—the Nineteenth score and seven years ago.”) Similarly, Amendment had clear implications for Dr. King explicitly rooted his dream in the legitimacy of previously enacted leg- the Declaration’s creed “that all men are islation affecting the lives of women. The created equal.” But Amar also grounds Connecticut anti-contraception law inval- these iconic speeches in the words of idated in Griswold v. Connecticut and the Constitution itself. Lincoln’s vision the Texas anti-abortion law invalidated of a “new birth of freedom” was real- in Roe v. Wade were enacted prior to the ized five years later in the Fourteenth Amendment, which granted citizenship Reviews continued on page 103

March 2013 • The Federal Lawyer • 97 SPOTLIGHT continued from page 100

South Florida Chapter †Hon. Chris McAliley †Amanda E. Ballard D.C. Circuit †Xin Nie †Annery P. Alfonso *Brian P. Miller *Bjorn E. Brunvand †Veronica Norman †Raudel Alfonso †Lauren Morse *Michael B. Colgan Capitol Hill Chapter *Richard A. Schaberg †Hon. Cecilia M. Altonaga *Anna T. Neill *James E. Felman *Mark A. Weinberger *Hon. Richard L. Sippel *Brett A. Barfield *Edward R. Nicklaus *Marion Hale *Catherine A. Stevens *Anthony B. Borras †Hon. John J. O’Sullivan *John P. Harllee District of Columbia *David F. Stover †Francis L. Carter *Robert E. Pershes *Marcos E. Hasbun Chapter †Patrick Sullivan †Hon. Marcia G. Cooke †Michael A. Pineiro *Dominique E. Heller †Robert Alinsky †Kathryn C. Vouri *David A. Coulson †Ramon A. Rasco †Laura H. Howard *Vincent S. Antonacci †Diana Wielocha †Hon. A. Jay Cristol * Dr. Amy D. Ronner †Kimberly A. Koves *Charlotte M. Bahin †Kristi Williams †Ileana Cruz *Stephen F. Rosenthal *Latour Lafferty *Barry P. Barbash *Melanie E. Damian *Hy Shapiro *Edmund J. McKenna *F. Douglas Birdzell Pentagon Chapter *Jorge R. Delgado †Steven D. Weber †Daniel F. Molony †Jonathan B. Bolls †Capt. Majella C. Pope *David M. DeMaio †Andrew B. Zelmanowitz †Dana L. Robbins †Kyle G. Chandler * Capt. J. A. Roach †Katherine W. Ezell †*Angela E. Rodante †Leonard N. Chanin Phoenix Chapter †Wilfredo Fernandez Southwest Florida *Thomas D. Roebig †John Collins *Hilary L. Barnes *Adam M. Foslid Chapter *Timon V. Sullivan †Ronald L. Frampton *Steven A. Hirsch †*Dale M Swope †Hon. Barry L. Garber *Joseph G. Viacava *Jose A. Fuentes *Lawrence I. Kazan *Michael L. Walker *Martin B. Goldberg †Peter L. Wechsler †*Anna Marie Gallagher *Melinda J. Kovacs †Hon. Jonathan Goodman †Dineen P. Wasylik †Lisa A. Harig †Julia L. Matter *Merrick L Gross *Morris Weinberg Tallahassee Chapter *Benjamin J. Haskin †*Suzanne R. Nunn *Kenneth R. Hartmann *Robert V. Williams †Daniel R. Ortega †Michael P. Bist †Elina Y. Hum †Hon. Paul C. Huck *Jason Wise †Allyson Thomas *Jennifer Sullivan Davis †Andrew M. Klein †Hon. Laurel M. Isicoff *Mamie V. Wise †Dominic A. Labitzky †Ray A. Ybarra Maldonado †Edward Jesson *Kenneth A. Lechter *Robert C. Josefsberg Tampa Bay Chapter *Linda L. Lord *Timothy A. Andreu †A. Nicole Kwapisz *Donald Mooers *Kimberly A. Bald

REVIEWS continued from page 97

Nineteenth Amendment by legislatures in rate domiciles for married women. The birth equality, feminism, and fundamental which women were entirely unrepresent- Supreme Court had allowed separate fairness, Amar does a commendable job. ed. Add to this the fact that the key com- domiciles more than 60 years earlier, in Amar contends that his work explains, mand of the already existing Fourteenth Barber v. Barber (1859), at least for among other things, “how to make proper Amendment is that of birth equality. If we women “under a judicial sentence of sep- constitutional arguments—how to think take these considerations seriously, Amar aration from bed and board.” In addition, constitutional law and how to do constitu- asks, should we not use the Nineteenth Amar argues that Roe v. Wade can be tional law.” In spite of this claim, it is not Amendment as the occasion to make con- justified by the fact that the law it struck clear that his book will find its most natu- stitutional amends to women? down was passed prior to the Nineteenth ral home in the libraries of practitioners. Perhaps Amar’s questions are rhetori- Amendment by an all-male legislature. Attorneys litigating constitutional cases cal. His conclusions are certainly open to But this argument fails when one consid- will want to read it but, to actually win question. ers that Roe’s companion case, Doe v. your cases, it will probably be more pro- For example, the fact that the Bolton, struck down a George abortion ductive to cite the latest Supreme Court Gettysburg Address and the “I Have a law enacted in 1968, decades after rati- precedents than the Gettysburg Address. Dream” speech may reflect constitution- fication of the Nineteenth Amendment. America’s Unwritten Constitution al ideas does not by itself insert them And, of course, plenty of women today is not a treatise intended to guide legal into the constitutional pantheon. These oppose Roe, just as many men today sup- practitioners or political scientists. Its aim speeches are particularly famous, but port it. is the more majestic one of articulating many speeches—just like many books Notwithstanding these quibbles, the some of the grand underlying themes of and law review articles—reflect constitu- idea of an unwritten constitution should American constitutional law and ground- tional ideals, and no one would claim that, not itself be controversial. Eight decades ing them in the constitutional text. It by virtue of that fact alone, they become ago, in Principality of Monaco v. aspires to be what Thucydides called “a part of our unwritten constitution. Mississippi (1934), the Supreme Court possession for all time,” and it succeeds. As for the “feminist Constitution,” told us that, “Behind the words of the Readers today, as well as those of future Amar is undoubtedly on to something constitutional provisions are postulates generations, will read it to their profit.  when he contends that the Nineteenth which limit and control.” The trick of Amendment resulted in cultural change. applying the Constitution in any era is Jon Blue is a judge of the Connecticut But some of his examples appear to be to identify and articulate just what those Superior Court. a stretch. The Nineteenth Amendment postulates are. In his rooted explanation hardly created the concept of sepa- of grand constitutional themes such as

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