Book Reviews

ABRAHAM LINCOLN: Seward, Secretary of the Treasury Salmon Lincoln’s sparing the life of an Indian scout PHILOSOPHER STATESMAN P. Chase, and Secretary of War Edwin M. who had stumbled into his camp of vol- BY JOSEPH R. FORNIERI Stanton. unteers during the Black Hawk War of Southern Illinois University Press, Carbondale, IL, 2014. Lincoln, in his wisdom, was interested in 1832. Other militia volunteers would have 216 pages, $34.50. science and discovery. Like all ex-Whigs, he killed the Indian, but Lincoln, who was urged support for entrepreneurial ventures. their captain, intervened. Another example LINCOLN’S CAMPAIGN Lincoln held a patent on an invention to of Lincoln’s magnanimity came in 1858, BIOGRAPHIES raise the level of a barge traveling through when, after the Illinois legislature chose BY THOMAS A. HORROCKS shallow water. Fornieri quotes from a speech Stephen A. Douglas over Lincoln for the Southern Illinois University Press, Carbondale, IL, 2014. Lincoln gave in New Haven, Connecticut, on U.S. Senate, Lincoln expressed pride, “in 148 pages, $24.95. March 6, 1860, advocating that every man— my passing speck of time, to contribute black or white—have the chance to “better an humble mite” toward ending slavery. Reviewed by Henry S. Cohn his condition,” to “look forward and hope to The crowning example is Lincoln’s second be a hired laborer this year and the next, inaugural address (“With malice toward In Abraham Lincoln: Philosopher work for himself afterward, and finally to none; with charity for all”), which, as reli- Statesman, political science professor hire men to work for him!” gious historian Mark Noll points out, is filled Joseph R. Fornieri contends that Abraham Fornieri’s second principle of statesman-

Lincoln was a great statesman. He identifies ship is prudence, which Lincoln exhibited Fornieri six factors that make one a statesman—(1)lead to a deeper appreciation of instatesman issuing­ Lincolnthe Emancipation Proclamation. hat constitutes Lincoln’s political great­ ship and of its embodiment in Abraham nessW as a statesman? As a great leader, he “In this wonderfully concise work on the politics of Lincoln, Joseph Fornieri performs to Lincoln. saved the Union, presided over the end of perfection the task of laying out the lines of Lincoln’s politics, not only for his time but Abraham Lincoln Abraham Lincoln wisdom, (2) prudence, (3) duty, (4)With themag great philosophers- He and books had failed to convince the border states slavery, and helped to pave the way for an in­ also in terms of the seven classical characteristics that make for ‘greatness of soul.’ Put of western civilization as his guide, For ni­ terracial democracy. His great speeches pro­ away the treacly little handbooks that promise to deliver Lincoln’s ‘leadership secrets’— PHILOSOPHER eri demonstrates the important contribu­ vide enduring wisdom about human equal­ nanimity, (5) rhetoric, and (6) patriotism— that remainedhere is the inreal stuff the of Lincoln’s union statesmanship.” to agree to grad- tion of normative political philosophy to an ity, democracy, free labor, and free society. —Allen C. Guelzo, author of Fateful Lightning: understanding of our sixteenth president. Joseph R. Fornieri contends that Lincoln’s and he makes the case that Lincoln excelled ual emancipation. He refusedA New History of the Civilto War proclaimand Reconstruction STATESMAN Informed by political theory that draws on political genius is best understood in terms the classics in revealing the timelessness of a philosophical statesmanship that united in them all. of Lincoln’s example, his interdisciplinarythat all slaves“By bringing thein insights the of political philosophyUnited to bear on Statesthe study of Abraham were Lincoln, greatness of thought and action, one that study offers profound insights for anyone Fornieri enriches our understanding of what made the sixteenth president not only a combined theory and practice. This philo­ With respect to wisdom, Fornieriinterested shows in the nature of leadership,free, states­ believinggreat politician it but alsonot a great statesman.within Rejecting thehis cynical notionauthority that a seasoned sophical statesmanship, Fornieri argues, can manship, political philosophy, political eth­ political operator cannot also be a principled idealist, Fornieri shows that what made best be understood in terms of six dimen­ that Lincoln had knowledge of andics, respect political history, and constitutionalas law.President. Lincoln greatUnder was that he washis both. ClearlyArticle written and passionatelyII power argued, this isas a sions of political leadership: wisdom, pru­ book from which scholars can learn but that general readers can enjoy.” dence, duty, magnanimity, rhetoric, and pa­ —James Oakes, author of Freedom National: Joseph R. Fornieri is a professor of STATESMAN PHILOSOPHER triotism. Drawing on insights from history, for Euclidean reasoning. Lincoln read Euclid commander in chief, however,The Destruction he of Slavery could, in the United as States a political science at the Rochester Institute of politics, and philosophy, Fornieri tackles the Technology and the director of the Center question of how Lincoln’s statesmanship dis­ on his lonely travels through Illinois’for Statesmanship,Eighth Law, and Liberty.war He ismeasure, Viewing Lincolnfree through the the lens slaves of political philosophy, in the Fornieri convincinglystates shows in played each of these crucial elements. the author or editor of five books, including how the sixteenth president piloted the ship of state prudently between the Scylla of Providing an accessible framework for un­ Judicial Circuit, and, according to Fornieri,Abraham Lincoln’s Political Faithrebellion, and, with and,utopian perfectionism on Jan. and the Charybdis 1, 1863, of mere cynical thatshrewdness.” is what derstanding Lincoln’s statesmanship, this Sara Vaughn Gabbard, Lincoln’s America. —Michael Burlingame, Chancellor Naomi B. Lynn Distinguished thoughtful study examines the sixteenth through his use of Euclidean reasoning, he did in the EmancipationChair in Lincoln Studies, Proclamation. University of Illinois Springfield president’s political leadership in terms of

uke the traditional moral vision of statecraft as understood by epic political philosophers Ick l Ick “became adept at reducing a case in terms After he issued the proclamation, however, such as Aristotle and St. Thomas Aquinas. Fornieri contends that Lincoln’s character is of its core principle and persuading juries he continuedSouthern to Ill lobbyInoIS unIver CongressSIty PreSS to$34.50 enact uSD leg- best understood in terms of Aquinas’s un­ www.SIuPreSS.com ISbn 0­8093­3329­5 Photo by Patr derstanding of magnanimity or greatness ISbn 978­0­8093­3329­5 through tersely reasoned arguments. ...” islation to fund the voluntary colonization of of soul, the crowning virtue of statesman­ ship. True political greatness, as embodied But Lincoln’s wisdom, Fornieri writes, African-Americans. by Lincoln, involves both humility and sac­ Southern rificial service for the common good. The Illinois enduring wisdom and timeless teachings University “comes to light not only in his understandPrinted in the United- States of America RegardingJacket illustration: his Lincoln-186 third, oil on canvas, byprinciple, Wendy Allen. duty, Press joseph r. fornieri of these great thinkers, Fornieri shows, can ing of Euclidean logic, but in his profound Fornieri notes that Lincoln battled to pre- knowledge of the Bible in vindicatingFornieri cvr mech.indd 1 [the serve the Union, drawing this duty from 3/10/14 11:27 AM right to govern oneself] against the claims the oath of office he took when he became Horrocks

THOMAS A. HORROCKS

“Thomas Horrocks has produced a comprehensive and thoughtful sur- thomas a. horrocks is the director of Special uring the 1860 and 1864 presidential cam- of proslavery theology. ... The self-evident President. Fornieri contrastsvey of the surprisingly voluminous Lincoln’s but underappreciated rec collection- of Collections and the John Hay Library at Brown paigns Abraham Lincoln was the subject

campaign biographies about Abraham Lincoln that appeared in 1860 Biographies Campaign Lincoln’s D University. He is the author, editor, or coeditor of more than twenty campaign biographies. In and 1864. Horrocks details how these earliest Lincoln narratives came truth of equality was not only known byof six books, includingognition The Living Lincoln of and his duty to save the Union with this innovative study Thomas A. Horrocks not about and then carefully analyzes their impact on his evolving national President James Buchanan and the Crisis of Na- only examines the role these publications played reputation. This is a must-have addition for the library of any serious Lincoln’s Campaign tional Leadership. in shaping an image of Lincoln that would reso- reason and affirmed by Euclidean logic; it his predecessor JamesLincoln student.” Buchanan’s weak nate with voters but also explores the vision of —matthew pinsker, Pohanka Chair in American Lincoln that the biographies crafted, the changes Civil War History, Dickinson College was also confirmed by the biblical teach- response when South Carolina seceded. Biographies in this vision over the course of four years, and “For the intensely private Abraham Lincoln, crafting an autobiography the impact of these works on the outcome of the was nearly as painful as reading those campaign profiles written about elections. ing of Genesis 1:27, of ‘man created in the Lincoln saw his dutyhim. to As Horrocks require demonstrates in thishim engaging andto crisply usewritten study, Horrocks investigates Lincoln’s campaign biog- a series of political writers and editors faced uphill battles in selling the raphies within the context of the critical relation- image of God.’” Lincoln believed that this his full authority underone-term congressman the to a skeptical,Constitution divided nation, and then selling ship between print and politics in nineteenth- him again four years later to a war-weary public. Thoughtful, nuanced, century America and compares the works about yet succinct, Lincoln’s Campaign Biographies can be read with profit by Lincoln with other presidential cam paign biog- belief underlay Founders’ assertion that all and to take extra-constitutionalspecialists as well as general readers.” measures raphies of the era. Horrocks shows that more

Beth Carroll-Horrocks —douglas r. egerton, author of Year of Meteors: Stephen Douglas, than most politicians of his day, Lincoln deeply Abraham Lincoln, and the Election That Brought on the Civil War appreciated and understood the influence and men—not just rich men or white men— as needed. Referring to his suspension of the power of the printed word. “Horrocks shines a focused beam on the biographies written to promote The 1860 campaign biographies introduced were entitled to life, liberty, and the pursuit habeas corpus, he asked,Lincoln’s presidential “are campaigns, all turning the them into wide-anglelaws, lenses to America “Honest Abe, the Rail Splitter,” a that shed light not only on the critical elections of 1860 and 1864 but trustworthy, rugged candidate who appealed to also on a wide variety of historical subjects, from the spread of print rural Americans. When Lincoln ran for reelec- of happiness. but one, to go unexecuted,culture to the fall of theand Whig Party. the This is governa revealing look at -an im- tion in 1864, the second round of campaign portant technique for making (or unmaking) presidential candidates in biographies complemented this earlier portrait the nineteenth century.” of Lincoln with a new, paternal figure, “Father Lincoln’s wisdom also consisted in an ment itself go to pieces,— geraldlest j. prokopowicz that, chair,one History Department,be Abraham,” who was more appropriate for Ameri- East Carolina University cans enduring a bloody civil war. Closing with a Printed in the United States of America of States United the in Printed consideration of the influence of these publica- ability to avoid extreme positions. Relying violated?” southern illinois university press $24.95 USD tions on Lincoln’s election and reelection, Lin- www.conciselincolnlibrary.com ISBN 0-8093-3331-7 coln’s Campaign Biographies provides a new per- on Doris Kearns Goodwin’s Team of Rivals, With regard to the fourth principleISBN 978-0-8093-3331-8 of spective for those seeking a better understanding of the sixteenth president, the political power University Press University Illinois Southern of candidates’ biographies, and two of the most Fornieri shows Lincoln’s great ability to statemanship—magnanimity—Lincoln, critical elections in American history. Jacket illustration adapted from a painting by Wendy Allen mediate among his strong-willed cabinet according to Fornieri, believed in “Christian members, Secretary of State William H. humility.” Fornieri gives the example of

CLL Horrocks cvr mech.indd 1 1/30/14 9:17 AM March 2015 • THE FEDERAL LAWYER • 77 “with humility and charity” as opposed to in booklets ranging from 20 to 75 pages. In him to read it. Scripps’ book sold more than “the self-righteousness and vindictiveness 1824, the first campaign biography appeared 100,000 copies, and Lincoln rewarded him by of northern clergy members,” such as Henry in the election contest between John Quincy appointing him postmaster of Chicago. Ward Beecher. Adams and Andrew Jackson, which Adams Horrocks details the subjects that the var- The strongest section of the book is won by a narrow margin. “The famous 1840 ious Lincoln biographies addressed. Lincoln’s Fornieri’s discussion of Lincoln’s rhetorical ‘Log Cabin’ presidential campaign,” writes early life in New Salem was an essential. This ability. He contrasts Lincoln’s straightfor- Horrock, “is a prime example of a political would include his wrestling victory over the wardness with Douglas’ pandering and deceit party, in this case the Whigs, using print in “Clary Grove Boys” that earned him notoriety during the 1858 debates. A good example of innovative and remarkably effective ways. and led to his first successful campaign for Lincoln’s rhetorical ability occurred in the ... Linked to a popular slogan, ‘Tippecanoe the Illinois House of Representatives. The March 5, 1860, speech in Hartford, Conn., and Tyler Too,’ the party promoted its can- biographies ignored Lincoln’s legal career, in which he compared slavery to a venom- didate, General William Henry Harrison, a except for the story of the “Almanac Trial,” ous snake. He noted that, whereas he might man born into a wealthy Virginia family, as a in which Lincoln cross-examined the main seize a stick and kill the snake if he saw it rustic, hard-cider-drinking man who wore a prosecution witness about visibility under crawling in the road, “if I found that snake in coonskin hat and lived in a simple log cabin. moonlight. bed with my children, that would be another His opponent, President Martin Van Buren, The biographies were careful in their tell- question. I might hurt the children more whose origins were more humble than those ing of Lincoln’s sole term in the U.S. House than the snake, and it might bite them.” of Harrison, was portrayed by the Whigs as of Representatives, from 1847 to 1849. They And he certainly wouldn’t take a batch of an elite fop. ...” admitted that Lincoln opposed the Mexican snakes and put them in “a bed newly made The earliest attempt at a biography of War, as did many Whigs, but also declared up, to which the children were to be taken.” Lincoln occurred just after the Lincoln- that he never voted against providing finan- The snake in a bed with the children repre- Douglas debates of 1858. The first draft was cial support to the soldiers in battle. Other sented slavery in the states where it existed, by Lincoln himself and sent to his friend, than giving the names of Lincoln’s wife and and the newly made-up bed represented attorney Jesse Fell. It had only 606 words. children, most biographies ignored Lincoln’s the territories. Fornieri writes that, while The biography was then revised by Joseph family life. Of course, Lincoln’s propensity for the speech “rejects the moral relativism of J. Lewis, a Pennsylvania Republican activist, telling “little stories,” some off-color, never popular sovereignty [Stephen Douglas’ plan and printed in the Chester County Times in found its way into these volumes. to allow each territory to vote whether to February 1860. This account became a major The 1864 biographies had to deal with the allow slavery] by likening slavery to a snake, source for the multiple biographies issued difficulties that the Union army was facing in a symbol of evil in the Bible, it also conveys immediately after Lincoln’s nomination at the war. These books did not abandon the the need for prudence in how to handle this the Wigwam convention center in Chicago in earlier “rail-splitter” image, but they added evil in different circumstances.” May 1860. One of the biographies was written the touch that the President was “Father Fornieri’s last principle is patriotism. by William Dean Howells, later appointed by Abraham,” and they trumpeted the successes Even Alexander Stevens, the vice president Lincoln as consul to Venice, and also a novel- of Lincoln’s first administration. of the Confederacy, declared that Lincoln ist and confidant of Mark Twain. Books published in opposition to Lincoln was a devoted patriot. Fornieri also shows The first Lincoln biography in 1860 in 1864 portrayed him with negative imag- that Lincoln endorsed patriotism in his was a pamphlet written in haste by John es, including one with racist drawings as 1852 eulogy for Henry Clay: “He burned Locke Scripps. It gave Lincoln’s first name an African king. Horrocks shows that the with zeal for [the country’s] advancement, as “Abram.” Later in the campaign, Scripps attempt of Lincoln’s opponent George prosperity and glory. ...” In addition, Lincoln decided to turn it into a book, and he asked McClellan at biography backfired when his always treasured Parson Weems’ biography Lincoln for more information about himself. political writers related that he supported of George Washington, from which the tale Lincoln at first declined: “[I]t is a great piece a negotiated settlement to the war. When of the cherry tree derives. Thus concludes of folly to attempt to make anything out of Sherman burned Atlanta, the public turned Fornieri’s demonstration of Lincoln’s states- my early life. It can all be condensed into a on McClellan, rejuvenating the Lincoln cam- manship. single sentence, and that sentence you will paign. Less philosophical but more practical find in Gray’s Elegy: ‘The short and simple In their books, Horrocks and Fornieri both views of Lincoln’s stature were presented annals of the poor.’” Lincoln later relented show how others saw Lincoln in a most posi- in the numerous campaign biographies of and sent Scripps an expanded draft of the tive light. Horrocks’ Lincoln’s Campaign Lincoln issued in the years that he ran for 1858 Fell-Lewis biography. Biographies is a vivid and well-organized President: 1860 and 1864. These biographies Lincoln expected all his biographers to review of 19th-century writings, whereas are the subject of Lincoln's Campaign be accurate, but they filled their books with Fornieri’s Abraham Lincoln: Philosopher Biographies, an excellent book by Thomas exaggerated tales about his studying as a boy Statesman is a looser collection of favorable A. Horrocks, a librarian at Brown University. by the firelight, his mighty efforts to split information designed to prove that Lincoln Horrocks describes presidential campaign rails, his military successes in the Black Hawk satisfies Fornieri’s criteria for being a states- publications such as almanacs, broadsides, War, and his trips by flatboat to New Orleans. man.  newspapers published by political parties, Scripps claimed in his book that Lincoln had illustrated magazines, sheet music, and studied Plutarch’s Lives, and when Lincoln Henry S. Cohn is a judge of the Connecticut songsters, which were collections of songs told him that he had not, Scripps begged Superior Court.

78 • THE FEDERAL LAWYER • March 2015 DO GREAT CASES MAKE BAD A major task for Bloom is to identify great Marshall was determined to reach the issue of LAW? cases that made bad law and those that helped constitutionality no matter what.” “No matter BY LACKLAND H. BLOOM JR. create more positive and enduring constitu- what” is not the kind of jurisprudence or legal Oxford University Press, New York, NY, 2014. tional principles. Although he recognizes sub- reasoning we should tolerate in courts. Why is 435 pages, $99.95. stantial shortcomings with Chief Justice John Marbury, in Bloom’s words, “a highly revered Marshall’s opinion in Marbury v. Madison, decision,” or, as Leonard Baker called it, “one Reviewed by Louis Fisher he describes it as “a masterwork of the great- of civilizations finest hours, one of mankind’s est justice. Its prestige has grown over time.” greatest achievements”? As one might expect from its title and It “did not simply produce good law” but Bloom observes that Marshall himself from a table of contents that identifies 24 also “profound and enduring law.” But its found fault with Marbury, protesting in major Supreme Court cases, from Marbury shortcomings, in fact, are quite pronounced. Cohens v. Virginia (1821) about its “overly v. Madison to the recent Affordable Care Act William Marbury and his colleagues had no broad dicta.” In Cohens, Marshall objected case, National Federation of Independent legal grounds to take their case directly to the that litigants read his 1803 opinion carelessly, Business v. Sebelius, this book by Lackland Supreme Court, as it did not fall within the failing to limit themselves to its core holding: Bloom is one of exceptional breadth and Court’s original jurisdiction. Bloom explains that the Court did not have jurisdiction to hear depth. It explores great cases not only with that Marshall, writing for a unanimous Court, the case. Some of the language in Marbury, legal analysis but within their social, histori- dismissed Marbury’s suit “for lack of jurisdic- Marshall said, was not only too broad “but in cal, and political framework. No matter how tion.” Bloom continues: “It has long been a some instances contradictory to its principle.” familiar these cases are to you, you will find precept of Anglo-American jurisprudence that Yet the legal profession continues to pay the book stimulating, rich, and perceptive, a court’s first duty is to determine whether it more attention to Marshall’s dicta than to his provoking fresh thoughts about core consti- has jurisdiction and if it does not, to dismiss holding. tutional issues. Thoroughly researched, with the case.” Courts and scholars regularly claim that close analyses of lower court decisions and Under that understanding of the clear Marbury established the Supreme Court briefs and oral arguments before the Supreme limits on judicial authority, the Court should as the final word on the meaning of the Court, it includes citations of value to any have rejected Marbury’s case with a half- Constitution, relying on this sentence by researcher. page explanation. Everything Marshall said Marshall: “It is emphatically the province and Bloom takes direction from the familiar later in the opinion was pure dicta, including duty of the judicial department to say what language in Justice Oliver Wendell Holmes’ Marbury’s “right” to his commission, the lec- the law is.” Repeat that as often as you like, dissent in Northern Securities Company v. ture Marshall decided to deliver to President but it simply means that courts decide cases, United States (1904). Holmes wrote: “Great Jefferson, and Marshall’s analysis of section which we all know. Try rewriting the sentence cases, like hard cases, make bad law. For 13 of the Judiciary Act of 1789, which he sup- in this manner: “It is emphatically the province great cases are called great, not by reason of posedly struck down (having no jurisdiction to and duty of the legislative department to say their real importance in shaping the law of the do so). Bloom writes: “With no analysis what- what the law is.” That’s another truism, but it future, but because of some accident of imme- soever, Marshall declared that the Judiciary does not establish legislative supremacy over diate overwhelming interest which appeals to Act of 1789 gave the Supreme Court original the meaning of the Constitution. the feelings and distorts the judgment. These jurisdiction in a case in which a party was During the Senate impeachment trial immediate interests exercise a kind of hydrau- seeking a writ of mandamus against a govern- of Justice Samuel Chase, Marshall wrote to lic pressure which makes what previously was ment official. This is arguably the weakest link Chase on Jan. 23, 1805, recommending that clear seem doubtful, and before which even in Marshall’s chain of reasoning.” First, the the modern doctrine of impeachment “should well settled principles of law will bend.” Court had no jurisdiction to find supposed yield to an appellate jurisdiction in the leg- defects in a statutory provision. Second, sec- islature. A reversal of those legal opinions tion 13 clearly states that federal courts have deemed unsound by the legislature would power to issue writs of mandamus in cases of certainly better comport with the mildness of “appellate jurisdiction from the circuit courts our character than [would] a removal of the and courts of several states.” Marbury’s suit Judge who has rendered them unknowing of was not one of appellate jurisdiction. his fault.” Those are not the words of someone To Bloom, Marshall’s interpretation of who championed judicial supremacy. the Judiciary Act of 1789 “was eccentric.” Bloom describes McCulloch v. Maryland Eccentric means deviating from established (1819) as “[a]rguably ... the greatest of the patterns. Marshall went beyond that. With great cases ever decided by the Supreme no jurisdiction, he proceeded to find fault Court,” an opinion “widely considered to be with a statutory provision. That is not being one of if not the greatest in Supreme Court eccentric; it is judicial overreach and abuse. history.” Instead of declaring the U.S. Bank How would we respond today if a court illegal, a step Bloom says “would be quite decided it lacked jurisdiction to hear a case destabilizing,” Marshall “declared that greater but proceeded to make new law and invali- deference should be accorded congressional date a statutory provision? Bloom remarks: legislation.” Bloom properly says that, in “It is difficult to resist the conclusion that Marbury v. Madison, Marshall gave no such

March 2015 • THE FEDERAL LAWYER • 79 deference to section 13: “It is worth noting the time.” In fact, Harlan’s legal reasoning To Bloom, Brown v. Board of Education that Marshall hardly gave Congress the benefit was meticulous, well-argued, and persuasively (1954) is “the most important” case of the of the doubt 16 years earlier when deciding rejected the majority’s conclusion that the 20th century “and arguably the most sig- Marbury v. Madison.” No doubt McCulloch statute impermissibly interfered with private nificant case in the Court’s history.” The is an important case in interpreting federal- relationships. To Bloom, the movement to Court, as an institution, could not claim too state powers and the Necessary and Proper expunge racial injustice would have been much credit for it. The Court was, after all, Clause, but Bloom finds parts of Marshall’s easier had the Court not invalidated the 1875 reversing its “separate but equal” doctrine of decision “disingenuous and unpersuasive.” statute: “From that standpoint, the case made racial discrimination announced in Plessy Great as the case may have been, “it was sim- bad law.” v. Ferguson (1896). Also, Bloom acknowl- ply not the type of issue that could be settled In Pollock v. Farmers’ Loan & Trust edges that the “gradualism” endorsed in the by a Supreme Court opinion.” Bloom notes Co. (1895), the Court initially split 4-4 on implementation decision of Brown v. Board that President Andrew Jackson would later the constitutionality of a federal income tax. of Education (1955) “has been widely criti- veto a bill authorizing the U.S. Bank, using Justice Howell Jackson was ill and did not cized; however it seems to have been the independent presidential power to interpret a participate. Six weeks later, the Court issued inevitable price of unanimity in Brown I.” bill rather than be bound by McCulloch. Also, a second decision in the case, with Jackson Brown I, he says, “provided little doctrinal Congress could at any time decide indepen- voting to uphold the tax, but the Court struck guidance. As such it did not make great law dently whether to authorize or discontinue it down 5-4. It appears that someone had so much as light the way to it.” Significant the bank, a judgment over which the Court switched his vote, but Bloom raises the pos- progress came not from the courts but from had no control. sibility that the tabulation of votes might the elected branches when they passed Into the category of bad law Bloom places have been incorrect in the initial decision. such legislation as the Civil Rights Act of Dred Scott v. Sandford. Chief Justice Roger Bloom regards the second Pollock decision as 1964 and the Voting Rights Act of 1965. Taney’s “reliance on history was so selective great but “bad in the sense that it was almost As for Roe v. Wade (1973), Bloom as to be disingenuous” and needlessly fash- certainly wrong as a matter of precedent and regards it as “the most controversial case” ioned a broad opinion when a more narrow from the standpoint of the appropriate institu- decided by the Court since Dred Scott. approach was available and more prudent. tional role of the Court.” Chief Justice Hughes “There is a consensus that Justice Blackmun The breadth of Taney’s ruling was an effort to selected this decision as another self-inflicted wrote a very bad opinion” and that the impose a judicial solution on a divisive issue judicial wound. In any event, the Sixteenth decision, whether right or wrong, advanced that went “well beyond the Court’s ability to Amendment, ratified in 1913, overturned a legal justification that was “wholly inad- resolve.” The Court reached out to decide the second Pollock decision and empowered equate.” The widely attacked trimes- “crucial issues that it could have and should Congress to tax incomes. ter framework in Roe was jettisoned by have avoided.” Turning to the Steel Seizure Case of 1952, Planned Parenthood of Pennsylvania v. Hepburn v. Griswold (1870), which Youngstown Co. v. Sawyer, Bloom prais- Casey almost two decades later, in 1992. struck down the Legal Tender Act to the es Justice Robert Jackson’s concurrence as Space does not permit treatment of extent that it authorized the use of paper “elegant and nuanced.” He sees it as repre- other decisions that Bloom analyzes, includ- money to discharge debts, is another case senting “the starting point for separation of ing Gibbons v. Ogden (1824), Prigg v. that Bloom says “made bad law.” After the powers analysis,” and finds it “one of the Pennsylvania (1842), The Slaughter- retirement of one justice and the appointment most influential opinions of the twentieth House Cases (1873), NLRB v. Jones & of two new ones, the Court a year later in century.” Well put. The concurrence is a Laughlin Steel Corp. (1937), Dennis v. the Legal Tender Cases reversed itself and starting point, and nothing more. Before United States (1951), reapportionment upheld the statute. Because of this quick turn- itemizing his three categories to analyze cases including Baker v. Carr (1962) and around, Chief Justice Charles Evans Hughes presidential power, Jackson called his item- Reynolds v. Sims (1964), New York Times selected these two cases as one of three self- ization “over-simplified,” as indeed it is. v. Sullivan (1964), Miranda v. Arizona inflicted wounds on the Supreme Court. His framework is easily gamed, as evident (1966), the Pentagon Papers Case (1971), In the Civil Rights Act of 1875, Congress when The New York Times broke the story United States v. Nixon (1974), four affirma- passed legislation to provide blacks equal that the Bush administration, after Sept. tive action cases (Regents of the University accommodation to such public facilities as 11, 2001, had been conducting warrantless of California v. Bakke (1978), Grutter restaurants, hotels, railroads, and theaters. electronic surveillance. Two attorneys from v. Bollinger (2003), Gratz v. Bollinger Eight years later, in the Civil Rights Cases, the Congressional Research Service con- (2003), and Fisher v. University of Texas the Court struck down the statute. It was cluded that the activity fell into the lowest (2013)), Bush v. Gore (2000), and National not until the Civil Rights Act of 1964 that the of Jackson’s categories because President Federation of Independent Business v. nation had an equal accommodations law. George W. Bush was acting against statutory Sebelius (2012). As with the other cases, the From the “standpoint of the quest for racial policy, the Foreign Intelligence Surveillance quality of those decisions depended in large equality,” Bloom says the Court “made very Act of 1978. A month later, however, the part on contributions made in briefs and oral bad law.” Yet he maintains that the Court Justice Department relied on Jackson’s arguments, the decisiveness (or lack of it) released “an arguably correct decision,” even framework to place Bush’s action in the of certain justices, time available to write a though he concedes that Justice John Harlan highest category, because he was acting coherent opinion and build a consensus, and issued a “vigorous dissent,” which, he adds, with the support of the Authorization for political influences on the Court captured in was “dismissed as strange and eccentric at Use of Military Force of Sept. 18, 2001. Holmes’ reference to “hydraulic pressure.” 

80 • THE FEDERAL LAWYER • March 2015 Louis Fisher is scholar in residence at the those who believe that the text of a statute is more credible and helpful than others. Here Constitution Project and visiting profes- all that a judge needs to consider, and those he finds support even from the conserva- sor at the William & Mary Law School. who see value in looking at the legislative tive end of the judicial spectrum, quoting From 1970–2010, he served at the Library history of an ambiguous law. He leaves no Chief Justice John Robert’s statement at of Congress as a senior specialist in sepa- doubt of his opinion, writing, “It seems to me his confirmation hearings that “[a]ll legisla- ration of powers with the Congressional that the fundamental task for the judge is to tive history is not created equal. There’s a Research Service and specialist in con- determine what Congress was trying to do in difference between the weight you give a stitutional law with the Law Library. passing the law. In other words the task is conference report and the weight you give He is the author of more than 20 books, to interpret language in light of the statute’s the statement of one legislator on the floor.” including The Law of the Executive Branch: purpose(s) as enacted by legislators, with Indeed, Katzmann argues, there are all sorts Presidential Power (Oxford University particular attention to those legislative mate- of differences and nuances in the value of a Press, 2014). His personal Web page can rials that reliably contribute to understand- law’s legislative history and the process by be found at loufisher.org. ing the statute’s meaning.” He concedes that which it came to be. There are committee this “purposive” approach can be difficult, reports, conference committee reports, and JUDGING STATUTES but, to abandon it, he writes, “means that joint statements of conferees who drafted BY ROBERT A. KATZMANN judges will interpret statutes unmoored from the final version of the bill. There are time Oxford University Press, New York, NY, 2014. the reality of the legislative process and what pressures, compromises made to reach an 171 pages, $24.95. the legislators were seeking to do.” agreement, and the work of the legislative But, though he makes his purposive pref- counsel offices. “The degree to which these Reviewed by Paul Vamvas erence clear, Katzmann gives the “textualist” norms and practices shape both the draft- approach a fair description and hearing. The ing process and also legislative expectations Ask even most educated Americans what textualist critique of legislative history, he about how laws should be understood is the Supreme Court does, and they will likely notes, has at least four elements. The first is not commonly known within the judiciary,” answer that it decides questions of consti- that “the only legitimate law is text that both Katzmann observes unhappily, and “[h]aving tutional law. But in fact the high court and chambers and the President have approved.” a better understanding of legislative lawmak- most lower federal courts spend much more Those who rely on this claim argue that, ing can only better prepare judges to under- time parsing the meaning of laws passed by because “legislators do not review legisla- take their interpretive responsibilities.” Congress, and in doing so they have a much tive history, that history lacks authority.” Katzmann also talks about the effect that more direct effect on our lives than they do The second part of the textualist critique is agencies have on the laws they are charged when deciding most big constitutional ques- that using legislative history “impermissibly with implementing and how judges should tions. A case in point: the Supreme Court’s increases the discretion of judges to roam look at that process when they interpret a recent decision to hear a challenge to the through the wide range of often inconsistent statute. He demystifies the canons of statu- federal subsidies in the Affordable Care Act. materials and rely on those that suit their tory construction that judges use to address The question in this case is whether position.” The third component argues that ambiguity and looks at whether judges and the statute provides the subsidies only to legislators will be forced to write less ambigu- members of Congress even speak the same people who bought insurance through state- ous statutes if they know that the courts language. Finally, preventing the book from run exchanges, or also to people who bought cannot consult legislative history as an inter- becoming too abstract, Katzmann examines insurance through the federal government’s pretive aid. Finally, the textualist critique three decisions he wrote and how they fared marketplace. The language of the statute charges that judges’ use of legislative history when they got to the Supreme Court. suggests one possible answer, the history of encourages legislators to write unclear stat- Judging Statutes leaves the reader with the legislation might suggest another. Hence utes (expecting courts and administrators a better understanding of lawmaking, legal the need for statutory interpretation and, to clarify them) in order to serve interest more to the point here, the value of read- groups that contribute money to their re- ing Robert Katzmann’s new book, Judging election. Katzmann cites “Justice Scalia’s Statutes. lament about committee report language Katzmann is chief judge of the U.S. Court written by lawyer-lobbyists at the behest of of Appeals for the Second Circuit and has client groups, and about committees that a Ph.D. in political science. His background serve client interests” by “using committee may lead non-lawyers to shy away from the reports to memorialize transactions about book for fear of drowning in a morass of which the whole Congress is not aware.” This legal and scholarly terminology and the kind last argument Katzmann says has become a of arcane distinctions that only the deeply less important part of the textualist critique, geeky would care about. That would be a which has come to focus more on the first mistake, because in only 105 pages of text two of the four elements. Judging Statutes ably explains the major Whichever side of the purposive/textual- questions judges face when they interpret ist divide one is on, Katzmann performs a the nation’s laws. service by examining how legislative history Katzmann addresses the debate between is developed and why some types of it are

March 2015 • THE FEDERAL LAWYER • 81 interpretation, and the roles of the various friend of Philby’s. When suspicion of Philby’s are extraordinary. He was initially under inves- actors in this ongoing drama that affects all life as a double agent began to emerge, Elliott tigation as early as 1951, after the escape from our lives.  was his staunchest defender. Angleton had America of a British spy whom he allegedly met Philby early in his career, and idolized had tipped off. Philby was eventually cleared, Paul Vamvas is a lawyer with the federal him. When Philby was stationed in the United but he still lived under suspicion. Although government in Washington, D.C. States from 1949 until 1951, Angleton regu- he had resigned from MI6 and had difficulty larly lunched with him at Washington, D.C.’s maintaining stable employment, he preserved A SPY AMONG FRIENDS: Harvey’s Restaurant. Over martinis and oys- the patina of a gentleman. Approximately 10 KIM PHILBY AND THE GREAT ters, Angleton freely and without reservation years later, his treachery was fully revealed. BETRAYAL shared information with him on CIA activities, Even after being confronted by and confess- BY BEN MACINTYRE and Philby no doubt passed this intelligence ing to Elliott, Philby was allowed to remain Crown Publishers, New York, NY, 2014. on to the Soviets. When Philby defected to free and roam the streets of Beirut, where he 368 pages, $27. the Soviet Union in 1963 and the full extent was worked as a journalist until he escaped to of his espionage was exposed, both Elliott Moscow. A Spy Among Friends makes the Reviewed by Elizabeth Kelley and Angleton felt personally and supremely case that this was exactly what Britain wanted betrayed. and intended—that Philby would disappear If you enjoyed John Le Carré’s Tinker How, then, was Philby able to move so and gradually fade from memory, with Britain Tailor Soldier Spy or PBS’ production of The easily between two worlds, particularly at preserving as much dignity and suffering as Bletchley Circle, then you will surely enjoy A the height of the Cold War? Macintyre does little embarrassment as possible. Given the Spy Among Friends: Kim Philby and The a fine job of painting the manners and mores lifelong friendship between Elliott and Philby, Great Betrayal, by Ben Macintyre. Harold of English society of that era and showing one can also argue that neither Elliott nor any Adrian Russell (“Kim”) Philby, was born into how Philby’s pedigree, education, and con- of the others in his orbit wanted to see Philby’s a British upper-crust family in 1912 and died duct preserved his cover, or covers. Philby’s head placed in a noose.  in 1988. The book jacket notes that he was father was Sir John Philby, a member of the “the greatest spy in history,” and this is not an Indian Civil Service and an advisor to King Ibn Elizabeth Kelley is a criminal defense law- exaggeration. While working for MI6, Britain’s Saud of Saudi Arabia. Philby was educated yer based in Spokane, Washington. She foreign intelligence agency, Philby was also at Cambridge. He belonged to the right clubs has a special commitment to represent- providing information to the Soviet Union. and socialized with the right people. He cut a ing individuals with mental illness and As Macintyre points out, the nickname “Kim” handsome and charming figure. Certainly, no developmental or intellectual disabilities coined by his father was particularly apt, as one who so perfectly embodied the establish- who are accused of crimes. She has served Rudyard Kipling’s character of that name also ment could betray the establishment. two terms on the board of the National had the ability to move between two worlds. If A Spy Among Friends has any weak- Association of Criminal Defense Lawyers, Macintyre is the author of several best-sell- ness, it is that it devotes too little time to has served as the chair of the Mental ing books about espionage, but A Spy Among examining why Philby worked for the Soviets. Health and Corrections Committees, and Friends is much more than a spy thriller or We are told that he was repulsed by the Nazis, is currently the chair of the Membership even a biography of Philby. Rather, the book and that is a plausible explanation until the Committee. She hosts two radio shows, is about the complex relationship between end of World War II. But why, then, did he Celebrity Court and Celebrity Court: Author Philby; his colleague at MI6, Nicholas Elliott; continue, particularly during the remaining Chats. She can be contacted at zealousadvo- and American James Angleton, who eventu- brutal years of Stalin’s regime? [email protected]. ally rose to become the CIA’s counterintel- Just as we marvel at how Philby was able ligence chief. For decades, Elliott was a close to escape detection, so, too, we wonder about ADDITIONAL BOOK REVIEWS how he was able to avoid prosecution by In addition to the book reviews in the paper either the British or American governments. copy of this issue of The Federal Lawyer, bo- Again, much can be explained by England’s nus reviews are included in the online version of vaunted sense of pride and decorum. Had the magazine. The following reviews are avail- Philby been tried in London, the extent and able at www.fedbar.org/magazine.  length of his perfidy would have been hugely embarrassing. So British authorities offered PLAGUE, FEAR, AND POLITICS IN him immunity in return for a complete confes- SAN FRANCISCO’S CHINATOWN sion and full cooperation, and they insisted, BY GUENTER B. RISSE all evidence to the contrary, that Philby’s Reviewed by Jon Sands espionage had ceased in 1949—before he was stationed in the United States. This was done CAPITAL MARKETS, DERIVA- in order to avoid his extradition to the United TIVES AND THE LAW: EVOLUTION States, which would have made the offer of AFTER CRISIS immunity meaningless. BY ALAN N. RECHTSCHAFFEN For those of us who are used to having our Reviewed by Christopher Faille clients taken into custody, Philby’s final years

82 • THE FEDERAL LAWYER • March 2015