Human Rights Commentaries by Mary Ann Glendon, Chair of the Commission on Unalienable Rights

A prior post reviewed the limited public record (to date) of the first meeting on October 23 of the Commission on Unalienable Rights.

To gain a better understanding of what to expect from the Commission, this blog will examine two recent commentaries on human rights by, and an interview of, the Commission’s Chair, Mary Ann Glendon, the Learned Hand Professor of Law at the Harvard Law School, the author of a major book about the development of the Universal Declaration of Human Rights (UDHR) [1] and a prominent Roman Catholic who was U.S. Ambassador to the Vatican in the George W. Bush Administration. The Conclusion will evaluate her comments and those made by others at the first meeting.

Reclaim Human Rights (August 2016) [2]

Glendon began this article by acknowledging that she had been a participant in the Ramsey Colloquium’s 1998 affirmation of the UDHR as “the most available discourse for cross-cultural deliberation about the dignity of the human person” and as making “possible a truly universal dialogue about our common human future.” [3] She also affirmed she was “a longtime supporter of the cautious use of rights language, and a frequent critic of its misuses.”

Nevertheless, Glendon said that a 2016 criticism of human rights by R.R. Reno, the editor of First Things, [4] caused her to “ponder whether the noble post-World War II universal human rights idea has finally been so manipulated and politicized as to justify its abandonment by men and women of good will.”

According to Glendon, by “1998, governments and human-rights organizations alike were ignoring the fact that the UDHR was constructed as an integrated document whose core fundamental rights were meant to be ‘interdependent and indivisible.’ [However, by 1998, the] sense of the interdependence among rights and the connections between rights and responsibilities was fading.” Moreover, “a host of special-interest groups [were inspired] to capture the moral force and prestige of the human-rights project for their own purposes. . . .[The] core of basic human rights that might be said to be universal was being undermined by ‘multiplying the number of interests, goods, and desires that are elevated to the status of rights.”

As a result, by 2016, she argues, “the post-World War II dream of universal human rights risks dissolving into scattered rights of personal autonomy.”

Reno’s criticism of human rights, Glendon continues, emphasizes “the way that human rights as an ideology detracts from the difficult and demanding work of politics.” This is especially true in the U.S., she says, as “judicially-created rights have displaced political judgements that could and should have been left to the ordinary processes of bargaining, education, persuasion, and voting.” This has damaged “the American democratic experiment” by making it more difficult to correct an unwise judicial decision, intensifying “the politicization of the judicial selection process,” depriving “the country of the benefits of experimentation with different solutions to difficult problems” and accelerating “the flight from politics.”

Glendon concludes by urging “church leaders and people of good will to make every effort to connect the human-rights project to an affirmation of the essential interplay between individual rights and democratic values. We should insist on the connection between rights and responsibilities. And we should foster an appreciation of the ultimate dependence of rights upon the creation of rights-respecting cultures.”

 “Renewing Human Rights” (February 2019) [5]

“When Eleanor Roosevelt and a small group of people gathered at the behest of the U.N. in early 1947 to draft the world’s first ‘international bill of rights’” (the subsequent UDHR), the “idea that some rights could be universal—applicable across all the world’s different societies—was controversial.”

“Yet in the decades that followed, the UDHR . . . successfully challenged the view that sovereignty provided an iron shield behind which states could mistreat their people without outside scrutiny.”

“But now . . . the international human rights idea is in crisis, losing support both at home and abroad. Good intentions, honest mistakes, power politics, and plain old opportunism have all played a role in a growing skepticism, and even a backlash.”

As Glendon sees it, “there were three stages” to this change: [1] a pick-and-choose attitude toward rights initiated by the two superpowers in the Cold War era [U.S. and U.S.S.R.]; [2] an over-extension of the concept once the human rights idea showed its moral force; and [3] a forgetfulness of the hard-won wisdom of the men and women who had lived through two world wars.”

“The end of the Cold War increased the influence of human rights. American predominance, Western ideological ascendancy, a series of atrocities and conflicts, and a growing role for the United Nations and other international actors spurred the rapid growth of human rights activism in the 1990s. By the 2000s, there were many human rights organizations, including specialists, activists, agencies for monitoring and enforcement, and academic journals.”

These changes brought about “an interventionist approach, backed by Western—especially American—power. . . .  The establishment of state-like institutions such as the International Criminal Court (which the United States ultimately did not endorse), and doctrines such as the ‘Responsibility to Protect,’ reflected this shift. They increased the human rights field’s ability to frame the international agenda and set global standards. . . .  This encouraged an expansion in the number of basic rights.”

“Given that individual rights were gaining ascendancy, the role of social institutions and non-­individualistic values were deemphasized. A one-size-fits-all approach triumphed over the idea of a common standard that could be brought to life in a variety of legitimate ways. The indivisibility and inter­dependence of fundamental rights were ­forgotten.”

Some states now object to “uniform methods of interpreting and implementing” human rights treaties and to “supra­national institutions. They are remote from the people whose lives they affect. They lack public scrutiny and accountability, are susceptible to lobbying and political influence, and have no internal checks and balances.”

According to Glendon, the following “four major principles that the UDHR’s framers followed [in 1947-48] can reinvigorate the human rights idea in our own time:”

  • Modesty concerning universality. “The framers wisely confined themselves to a small set of principles so basic that no country or group would openly reject them. This was essential not only in order to gain broad political support within the U.N., but also to ensure that the Declaration would have deep and long-lasting support across vastly different cultures, belief systems, and political ideologies.”
  • Flexible universalism.” The UDHR framers “understood that there would always be different ways of applying human rights to different social and political contexts, and that each country’s circumstances would affect how it would fulfill its requirements.” For example, . . . [UDHR’s] Article 22 provides: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’ (Emphasis added.) Another example is Article 14, which states, ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution,’ but is silent on how that right should be protected.
  • Interdependence of basic rights.” The UDHR makes it clear “that everyone’s rights depend on respect for the rights of others, on the rule of law, and on a healthy civil society. . . . The framers of the [UDHR] did not expect uniform management of tensions or conflicts between rights. . . . [and instead] assumed that communities must balance the weight of claims of one right versus another before determining the best course of action.” Only a few rights do not allow such variation: “protections for freedom of religion and conscience” as well as “prohibitions of torture, enslavement, degrading punishment, . . .retroactive penal measures, and other grave violations of human dignity.”
  • “Subsidiarity.” Emphasis on “the primacy of the lowest level of implementation that can do the job, reserving national or international actors for situations where smaller entitles are incapable.” This principle, as stated in the UDHR’s Proclamation, also calls on “every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms.”

Glendon concludes by arguing for a new human rights goal: “the systematic elimination of a narrow set of evils for which a broad consensus exists across all societies. This would at least include “protections against genocide; slavery; torture; cruel, inhuman, or degrading treatment or punishment; retroactive penal measures; deportation or forcible transfer of population; discrimination based on race, color, sex, language, religion, nationality, or social origin; and protection for freedom of conscience and religion.”

Glendon Interview [6]

On August 3, 2019, Glendon was interviewed by Jack Goldsmith, another Harvard Law School professor of international law. Here are her comments that were not already expressed in the above articles.

She said there was confusion and crisis in human rights with roughly half of the world’s population without any rights and exasperated by disappointing performance of international human rights institutions.

Socrates said that definition of terms was the beginning of wisdom, and this is especially important since human rights are now important parts of U.S. foreign policy.

The concept of “unalienable rights,” which the printer of the original Declaration of Independence substituted for Thomas Jefferson’s draft’s use of “inalienable,” has evolved with the U.S. Bill of Rights (the first ten amendments to the Constitution) and the words of Abraham Lincoln and Martin Luther King, Jr.

While the U.S. Declaration of Independence talked about “laws of nature” or pre-political rights, the UDHR is grounded in the world’s religious and philosophical traditions.

Glendon emphasized the civil and political rights in the UDHR were interdependent with economic and social rights and pointed to the New Deal and the preambles of many U.S. statutes on economic and social issues as expressing this interdependence. This also is stated in Article 22 of the UDHR: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’” (Emphasis added.) This provision rejected the Soviet Union’s position that the state was solely responsible for such rights with Eleanor Roosevelt saying during the deliberations over the UDHR that no one had figured out how to do that without loss of freedom.

Another emphasis of Glendon was on the UDHR Proclamation’s words: ‘every individual and every organ of society, Keeping the [UDHR] constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of [U.N.] Member States themselves and among the peoples of territories under their jurisdiction.” Or as Judge Learned Hand said, ‘The spirit of liberty will die if not in the hearts of the people.’

Reactions

 Glendon’s primary focus in these two articles and interview is the UDHR, which is mentioned as one of two  guiding authorities for the Commission on Unalienable Rights, but Glendon has less to say about the U.S. Declaration of Independence, which is the other guiding authority for this Commission.

We all should seek to follow her emphasizing the UDHR’s interdependency of civil and political rights with economic and social rights and the importance of every individual and every organ of society striving by teaching and education to promote respect for human rights and freedoms.

The UDHR indeed is an important international human rights instrument. But it is a declaration adopted by the U.N. General Assembly in 1948. It does not by itself establish legal obligations on any nation state or other person.

In any event, Glendon says nothing about another provision of the UDHR’s Proclamation: “every individual and every organ of society , keeping this Declaration constantly in mind, shall strive . . . by progressive measures, national and international, to secure [these rights and freedoms] universal and effective recognition and observance.” (Emphasis added.) In other words, the UDHR itself contemplated that there should be additional measures, including national legislation and international treaties, to secure the rights and freedoms articulated in the UDHR and, by implication, that these other measures will include “rights” language. Moreover, under the principle of “flexible universalism,” a developed and wealthy country like the U.S. could well find ways to secure the rights mentioned in the UDHR that are more complex than those in other countries.

A similar principle for the Commission exists in the U.S. Declaration of Independence.  It says, as the Commission emphasizes, “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness.” But the very next sentence of the U.S. Declaration says, but the Glendon and the Commission ignore, “That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” (Emphasis added.) In other words, the U.S. Declaration contemplates that the not yet established U.S. government subsequently will enact statutes that protect the unalienable rights, only three of which are specifically mentioned in the Declaration.[7] These are not “ad hoc” rights as Secretary Pompeo likes to say.

As a result, after the 1948 adoption of the UDHR, various U.N. organizations have drafted and adopted many international human rights treaties,[8] and the U.S. federal and state governments have adopted many human rights statutes and regulations.

This obvious point is surprisingly overlooked by Glendon when she lauds UDHR’s Article 14 on the right to asylum as an example of flexible universalism because it does not say how that right should be protected. But the 1951 Convention Relating to the Status of Refugees that entered into force on April 22, 1954, defines”refugee” and specifies many conditions for that protection while limiting reservations under Article 42. Presumably she is not arguing that this treaty was a mistake.

Indeed, we should all celebrate, not complain as Secretary Pompeo likes to do, that there has been such proliferation or in Glendon’s words, “too much contemporary emphasis on ‘rights’ language. These arguments by Pompeo and Glendon can be seen as underhanded ways to cut back or eliminate rights that they do not like, which I assume would include abortion and LGBQ rights. Such rights constantly are criticized by her church (Roman Catholic) and by the Commission’s creator, Secretary of State Michael Pompeo, and others in the State Department.[9]

Criticism of Glendon’s apparent adherence to traditional Roman Catholic teachings on some of these issues comes from her successor as U.S. Ambassador to the Vatican in the Obama Administration, Miguel Diaz, along with 128 Catholic activists and leaders, in a letter opposing the Commission. [10] They said, “Our faith and our commitment to the principles of democracy require us to view every person on earth as a full human being. We staunchly support the fundamental human rights of all people and proudly carry on the long tradition in our country of advocating for expanding human rights around the world. Our concern is that this Commission will undermine these goals by promoting a vision of humanity that is conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world. Our faith and our commitment to the principles of democracy require us to view every person on earth as a full human being. We staunchly support the fundamental human rights of all people and proudly carry on the long tradition in our country of advocating for expanding human rights around the world,” they write. “Our concern is that this Commission will undermine these goals by promoting a vision of humanity that is conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world. Of most urgent concern is that the composition of the Commission indicates that it will lead our State Department to adopt policies that will harm people who are already vulnerable, especially poor women, children, LGBTI people, immigrants, refugees, and those in need of reproductive health services. This is being done “in the name of a very partial version of Christianity that is being promoted by the current Administration.” “All human beings,” however, “have been created in God’s image and all have been endowed by their Creator with the fundamental right to Life, Liberty, and the pursuit of Happiness. No person speaking in the name of government or in the name of God can do so to undermine or to deny this right.”

Nor does Glendon discuss how to resolve conflicts among rights. For example, the U.S. Declaration’s mention of “life” as one of the “unalienable rights” is taken by some, and probably Glendon, as a basis for arguing there should be no right to an abortion. But an abortion may be necessary to protect an expectant woman’s right to “life” or her “pursuit of happiness.”  How are those conflicts resolved? That is why we have federal and state and international courts and agencies to resolve these conflicts or disputes.

The previously cited “four major principles” of the UDHR are worthy of remembering and guiding future human rights, internationally and domestically.

Glendon, however, fails to acknowledge the continued use of the “flexible universalism” principle in human rights treaties that allow for their ratification by nation states with reservations for at least some of the treaty’s provisions. And, of course, a state may chose not to ratify a treaty and thereby not be bound by any of its provisions. [11] Moreover, there are mechanisms for other states and international agencies to address these reservations and non-ratifications. For example, in the U.H. Human Rights Council’s Universal Periodic Review process, the Council and other states may, and do, make recommendations for states to withdraw reservations or ratify certain treaties. The same was done by the Council’s predecessor, the U.N. Human Rights Committee.[12]

The words of Professor Michael McConnell from the Commission’s first meeting should also be remembered in this evaluation of its ongoing work. He warned that the term “‘unalienable rights,’ which comes to us from our country’s protestant reform traditions, has never had a common or precise definition. The phrase identifies a philosophical concept, rather than a concrete set of rights.  And while the concept often prioritizes freedom of religion, McConnell cautioned that our founders were ultimately more concerned with freedom of conscience, which includes but is not limited to a narrow understanding of religious freedom.”

“McConnell also recognized the implicit failures of this philosophical approach.  While the term ‘unalienable rights’ makes for inspirational prose, the philosophical concept behind it embraced our country’s original sin of slavery and denied women full standing in society. Concepts of equal protection could not, and did not, exist at this time, under this philosophical tradition.”

Andrea Schmitt of the Center for American Progress who attended  the Commission’s first meeting also had words of wisdom for the Commission. She said, “It is simply wrong-headed and ultimately self-defeating to create an artificial human rights hierarchy — one that strips away the universality of human rights and puts a limited number of political and religious rights above all others.  Indeed, this enterprise stands to harm religious freedom itself, as it gives philosophical justification to theocratic governments and religious majority populations who are, by far, the leading persecutors of religious minorities around the world.”

We all should thank Professor Glendon for her expertise and willingness to serve as Chair of the Commission. Those of us interested in international human rights need to carefully follow the Commission’s deliberations and eventual reports and express our agreements and disagreements with respect and reasoned arguments.

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[1] Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001); The Importance of the Universal Declaration of Human Rights, dwkcommentaries.com (July 11, 2019).

[2] Glendon, Reclaim Human Rights, First Things (Aug. 2016).

[3] The Ramsey Colloquium apparently published reflections about early Christianity’s treatment of homosexuality. (Graeser, The Ramsey Colloquium and Other First Things Resources, Mars Hill Audio (June 29, 2001).

[4] Reno, Against Human Rights, First Things (May 2016). Reno is a former professor of theology and ethics at Creighton University, a Jesuit institution until 2010 when he became the editor of First Things. In 2004 at age 45 he left the Episcopal Church to join the Roman Catholic Church and  describes himself as a theological and political conservative. First Things, which describes itself as“America’s most influential journal of religion and public life,” is published by the Institute on Religion and Public Life, an interreligious, nonpartisan research and educational 501(c)(3) organization. The Institute was founded in 1989 by Richard John Neuhaus and his colleagues to confront the ideology of secularism, which insists that the public square must be ‘naked,’ and that faith has no place in shaping the public conversation or in shaping public policy.” The Institute’s mission is to articulate a governing consensus that supports: a religiously pluralistic society that defends human dignity from conception to natural death; a democratic, constitutionally ordered form of government supported by a religiously and morally serious culture; a vision of freedom that encourages a culture of personal and communal responsibility; and loyalty to the Western tradition that provides a basis for responsible global citizenship.”

[5]  Glendon & Kaplan, Renewing Human Rights, First Things (Feb. 2019) The co-author, Seth D. Kaplan, is a professorial lecturer at the Paul H. Nitze School of Advanced International Studies at John Hopkins University. He is a consultant to organizations such as the World Bank, USAID, State Department, United Nations and African Development Bank.

[6] Howell, The Lawfare Podcast: Mary Ann Glendon on Unalienable Rights, Lawfare (Aug. 3, 2019).

[7] See The U.S. Declaration of Independence’s Relationship to the U.S. Constitution and Statutes, dwkcommentaries.com (July 5, 2019).

[8] As of 2009, there were at least the following significant multilateral human rights treaties: (1) U.N. Charter; (2) International Covenant on Economic, Social and Cultural Rights; (3) First Optional Covenant to the International Covenant on Civil and Political Rights; (4) Covenant on the Prevention and Punishment of the Crime of Genocide; (5) Convention Relating to the Status of Refugees; (6) Protocol Relating to the Status of Refugees; (7) International Convention on the Elimination of All Forms of Racial Discrimination; (8) Convention on the Elimination of All Forms of Discrimination against Women; (9) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (10) Convention on the Rights of the Child; (11) Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the elimination of the death penalty; (12) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; (13) Statute of the International Court; and (14) International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. (Weissbrodt, Ni Aoláin, Fitzpatrick & Newman, International Human Rights: Law, Policy, and Process at 33-35 (Lexis/Nexis 4th edition 2009).)

[9] See, e.g.,  U.S. Opposition to “Abortion” and “Sexual and Reproductive Health and Rights” at U.N. High-Level Meeting, dwkcommentaries.com (Sept. 25, 2019).

[10] White, Former U.S. envoy to Vatican opposes new commission headed by predecessor, Crux (Jul. 23, 2019).

[11] Under international law, “A State may, when signing, ratifying, accepting, approving, or acceding to a treaty, formulate a reservation unless (a) the reservation is prohibited by a treaty; (b) the treaty provides that only specified reservations, which do not include the reservation  in question, may be made; or (c) in cases not falling under sub-paragraphs (a) or (b), the reservation is incompatible with the object and purpose of the treaty.” (Vienna Convention on the Law of Treaties, arts. 19 (1980); id. Arts. 2(1) (d),20, 21, 22 )  See also,e.g., these posts to dwkcommentaries.com: Multilateral Treaties Signed, But Not Ratified, by the U.S., dwkcommentaries.com (Feb. 12, 2013); Multilateral Human Rights Treaties That Have Not Been Signed and Ratified by the U.S., dwkcommentaries.com (Feb. 16, 2013).

[12] See, e.g., these posts to dwkcommentaries.com: U.H. Human Rights Committee’s Review of U.S. Human Rights (April 19, 2014); U.N. Human Rights Committee’s Hearings About U.S. Human Rights (April 21, 2014); U.N. Human Rights Committee‘s Concluding Observations on U.S. Human Rights (April 24, 2014); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: Background (June 12, 2018); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The Pre-Hearing Papers (June 12, 2018); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The UPR Hearing (June 16, 2018); U.N. Human Rights Council’s Final Consideration of Cameroon’s Universal Periodic Review (Sept. 20, 2018).

 

 

 

U.S. Senator Jeff Flake Issues Another Challenge for All Americans

U.S. Senator Jeff Flake (Rep., AZ), now self-released from the pressures of running for re-election, has been speaking truth to the power of President Donald Trump. Last October he did so in a speech on the Senate floor and an op-ed article in the Washington Post followed by responses to the many letters he had received.[1] Then this January he did so again in another speech on the Senate floor condemning Trump’s tweets and “fake news” tirades.[2]

The latest was on May 23, 2018, at the Harvard Law School at the invitation of its law students.[3] Here is what he said.

Senator Flake’s Harvard Speech

I am . . . humbled by this moment in the life of our country. You see, you are set to inherit the world in just the nick of time.

I am also especially humbled given the fact that I come to you today from the political class. In utter seriousness, it is I who could benefit from listening to you today rather than speaking to you, as I am not so sure that there is much distilled wisdom to be imparted from Washington these days, given what has lately become the tawdriness of my profession. I am here today as representative of a co-equal branch of our federal government, which is failing its constitutional obligations to counteract the power of the president, and in so doing is dishonoring itself, at a critical moment in the life of our nation.

And so, with humility, let me suggest that perhaps it is best to consider what I have to say today as something of a cautionary tale –

  • about the rule of law and its fragility;
  • about our democratic norms and how hard-won and vulnerable they are;
  • about the independence of our system of justice, and how critically important it is to safeguard it from malign actors who would casually destroy that independence for their own purposes and without a thought to the consequences;
  • about the crucial predicate for all of these cherished American values: Truth. Empirical, objective truth;
  • and lastly, about the necessity to defend these values and these institutions that you will soon inherit, even if that means sometimes standing alone. Even if it means risking something important to you, maybe even your career. Because there are times when circumstances may call on you to risk your career in favor of your principles.

Not to be unpleasant, but I do bring news from our nation’s capital. First, the good news: Your national leadership is…not good. At all. Our presidency has been debased. By a figure who has a seemingly bottomless appetite for destruction and division. And only a passing familiarity with how the Constitution works.

And our Article I branch of government, the Congress (that’s me), is utterly supine in the face of the moral vandalism that flows from the White House daily. I do not think that the Founders could have anticipated that the beauty of their invention might someday founder on the rocks of reality television, and that the Congress would be such willing accomplices to this calamity. Our most ardent enemies, doing their worst (and they are doing their worst), couldn’t hurt us more than we are hurting ourselves.

Now, you might reasonably ask, where is the good news in that?

Well, simply put: We may have hit bottom.

(Oh, and that’s also the bad news. In a rare convergence, the good news and bad news are the same – Our leadership is not good, but it probably can’t get much worse.)

This is it, if you have been wondering what the bottom looks like. This is what it looks like when you stress-test all of the institutions that undergird our constitutional democracy, at the same time. You could say that we are witnesses to history, and if it were possible to divorce ourselves from the obvious tragedy of this debacle, I suppose that might even be interesting, from an academic perspective. The way some rare diseases are interesting to medical researchers.

But this is an experience we could and should have avoided. Getting to this state of distress did not occur naturally. Rather, this was thoroughly man-made. This disease of our polity is far too serious to not be recognized for what it is, the damage it threatens to do to our vital organs is far too great for us to carry on as if all is well. All is not well. We have a sickness of the spirit. To complete the medical metaphor, you might say that we are now in critical condition.

How did we arrive at a moment of such peril – wherein a president of the United States publicly threatens – on Fox & Friends, historians will note — to interfere in the administration of justice, and seems to think that the office confers on him the ability to decide who and what gets investigated, and who and what does not? And just this week, the President – offering an outlandish rationale, ordered an investigation into the investigation of the Russian attack on our electoral process – not to defend the country against further attacks, mind you, but to defend himself. Obviously, ordering investigations is not a legitimate use of presidential power.

I pick this egregious example of recent presidential conduct not because it is rare in terms of this president’s body of work, but because it so perfectly represents what we have tragically grown accustomed to in the past year and a half.  Who would have thought that we would ever see encouragement coming from the White House for chants at rallies calling for the jailing of a defeated political opponent. When you don’t even know that there are limits on presidential power, then you might not even care when you are abusing that power.

How did this happen to us? And what might we learn from it? How did we get swept up in this global resurgence of the authoritarian impulse, which now has democracies teetering on the brink, strongmen placing themselves above the law, and in our own country a leader who reveres some of the most loathsome enemies of democracy in our time?

Have we really grown tired of democracy? Are we watching its passing, cheered on by the America First crowd even as we cast aside global institutions that have fostered freedom, prosperity and peace for more than a half-century?

For just a moment, let us marvel at the miracle that is the rule of law. We have seldom been moved to pause for such an appreciation, as we have been too busy taking it for granted and assuming its inviolability – like gravity. But unlike Newton’s Laws, the rule of law was neither innate nor inevitable. What goes up must come down is a piece of cake compared to curbing the impulses of man and asking free people to abide rules and norms that form a country, and foster civilization.

It took centuries of war and sacrifice and social upheaval and more war and great civil rights struggles to establish the foundational notion that no one is either above the law or unworthy of the protections afforded by a robust legal system, a system that took us from feudal servility to a constitutional model that is the envy of the world. And will continue to be, with your help.

We trace the beginnings of this radical egalitarianism – of the awesome and leveling effect of the law – to the Glorious Revolution of 1688, which saw the death of the divine right of kings, as even the monarch from that point forward would be subject to the law – and the parliament even threw in a bill of rights for good measure.  

But we are now testing the durability of this idea that William III first had the good sense to agree to, an idea which was then forged and tempered over the ensuing centuries. And we are seeing its vulnerabilities. In other parts of the world where democracy’s roots are not so deep, we are seeing it being torn down with sickening ease and shocking speed. And worse, we are seeing the rise of simulated democracies, Potemkin democracies, democracies in appearance and affect only.

Rule of thumb: If the only acceptable outcome in a matter of law or justice is a result that is satisfactory to the leader, then you might live in a democracy that is in trouble. If the leader attacks the legitimacy of any institution that does not pay him obeisance – say, the independent judiciary, or the free press – then you might live in a democracy that is in trouble. Further to that point: when a figure in power reflexively calls any press that doesn’t suit him “fake news,” it is that person who should be the figure of suspicion, not the press.

It will be the work of your generation to make sure that this degradation of democracy does not continue – to see to it that our current flirtation with lawlessness and authoritarianism does not become a heritable trait to be passed down from this presidency.

The rule of law is an elemental value, a value that preceded and gave rise to our Constitution. It is not an ideology subject to the pendulum swings of politics, or something to be given a thumbs-up or thumbs-down in a call-in to your favorite morning show. It is the basis of our system of self-governance. America without the rule of law is no longer America.

I am a conservative Republican, a throwback from the days when those words actually meant something, before the collapse of our politics into the rank tribalism we currently endure. My sounding this alarm against a government that was elected under the Republican banner and that calls itself conservative makes me no less Republican or conservative. And opposing this president and much of what he stands for is not an act of apostasy – it is, rather, an act of fidelity. 

Because we forget this fact far too often, and it bears repeating a thousand times, especially in times such as these: Values transcend politics.

As a conservative Republican, I dare say that my idea of government may differ with the beliefs of many of you here today. I will be thoroughly presumptuous and assume that in terms of policy prescriptions, we disagree on much.

But I have long believed that the only lasting solutions to the problems before us must involve both sides. Lawmaking should never be an exercise in revenge, because vengeful people are myopic, self-interested, and not fit to lead. I believe that our government should include people who believe as I do, just as I believe it must include people who believe as my friend Tim Kaine does, or as my friend Cory Booker does, to name but two.

The greatness of our system is that it is designed to be difficult, in order to force compromise. And when you honor the system, and seek to govern in good faith, the system works.

Which brings us back to our current peril. It is a testament to our times – and to the inflection point that we face – that I am here today. For, setting aside the usual requirements of politics, and the usual ways that politics keeps score, the things that normally divide us seem trivial compared to the trials that have now been visited upon our democracy.

In the face of these challenges, we agree on something far more important than a legislative program, even more important than our thoughts on the proper role of government in the economy and in the lives of individuals: We agree on the need to safeguard the health and survival of constitutional democracy in America and the preservation of the American idea itself – at a time when the values underpinning our constitutional system and that extraordinary idea are under threat, from the top.

The values of the Enlightenment that led to the creation of this idea of America – this unique experiment in world history – are light years removed from the base, cruelly transactional brand of politics that in this moment some people mistakenly think is what it means to make America great.

To be clear, we did not become great – and will never be great – by indulging and encouraging our very worst impulses. It doesn’t matter how many red caps you sell.

The historian Jon Meacham, in his splendid new book, “The Soul of America,” reassures that history shows us that “we are frequently vulnerable to fear, bitterness, and strife.” The good news, he says, “is that we have come through such darkness before.”

Perhaps. But not with both nuclear weapons and Twitter. And certainly not with such an anomalous presidency as this one. But I take your point, Mr. Meacham, and am heartened by it.

We will get through this, of course. But at the moment, we are in it, and we must face it squarely. Because too much is at stake for us to turn away, to leave it to others to defend the things we hold most dear.

A culminating event such as the election of our current president scrambles normal binary notions of politics, and I am as disoriented as many of you are at this dealignment. We find that many of the day’s biggest issues simply don’t break down neatly to familiar ideas of left v. right, but rather more along these lines:

–Do you believe in democracy, or not?

–Are you faithful to your country, or to your party?

–Are you loyal to the law and the Constitution, or to a man?

–Do you reflexively ascribe the worst motives to your opponents, but somehow deny, excuse, or endorse every repulsive thing your compatriot says, does or tweets?

These questions have sent some of us wandering into the political wilderness.

Well, the wilderness suits me fine. In fact, I so love the way Washington has become that in recent years, during congressional recesses, I have taken to stranding myself on deserted islands in the middle of the ocean to detoxify all these feelings of love out of my system. I once spent a week alone, voluntarily marooned, on a tiny island called Jabonwod, a remote spit of sand and coconut trees in the central Pacific, about 7,000 miles from Washington.

As penance, and determined to test my survival skills, I brought no food or water, relying solely on what I could catch or collect. That, it turned out, was the easier part.  More difficult was dealing with the stultifying loneliness that set in on the first night and never left me. 

Now, I would not recommend such drastic measures to escape your situation, but I hope that should you be presented with the hard choice, you too will eschew comfort and set out into the wilderness rather than compromise your conscience.

I urge you to challenge all of your assumptions, regularly. Recognize the good in your opponents. Apologize every now and then. Admit to mistakes. Forgive, and ask for forgiveness. Listen more. Speak up more, for politics sometimes keeps us silent when we should speak.

And if you find yourself in a herd, crane your neck, look back there and check out your brand, ask yourself if it really suits you. From personal experience, I can say that it’s never too late to leave the herd.

When you peel off from the herd, your equilibrium returns. Food tastes better. You sleep very well. Your mind is your own again. You cease being captive to some bad impulses and even worse ideas. 

It can strain relationships, to be sure, and leave you eating alone in the senate dining room every now and then. But that’s okay. To revise and extend a remark the president himself may recognize: You might say that I like people whose minds weren’t captured. That one was for you, Senator McCain. We’re all pulling for you.

Politically speaking, I have not changed my beliefs much at all. But my goodness, how I have changed. How can we live through these abnormal times and not be changed?

Our country needs us now. Our country needs you.

We need each other, and it is a scoundrel who would prosper politically by turning us against each other.

From our time, let us send a message into the future that we did not fail democracy, but that we renewed it. That a patchwork of populist resentments and authoritarian whims that for a while succeeded in its cynical mission of discord had the ultimate effect of shaking us from our complacency, reminding us of who we are and of our responsibilities to each other. Of reawakening us to our obligations as citizens.

Let us be able to say in the future that we faced these forces that would threaten the institutions of our liberty and tear us apart and that we said: NO.

I leave you today with more good news and bad news. This time I will start with the bad news, which is: All of this is yours to fix. All of it.

And that of course is also the good news: All of this is yours to fix, and our country could not be more fortunate than to have people of your high character, strong principle and awesome talent soon taking the helm.

[It] is our obligation to assess the condition of our politics, then to mitigate and repair the damage.

It is the story of America, though, that we will be better for the hard lessons of this experience. We are much better and more decent than Washington shows us to be. We are a good people. And we are a deeply resourceful and resilient nation, and our greatness is based on no one man – no one man who “alone can fix it,” but rather on enduring ideas of self-governance and the rule of law that have been a model for the world for centuries. Ideas that can be mocked, but not marred.

[We] must gain the high ground, and survey the damage. And the thing about gaining the high ground is from up there you can see beyond the damage, too. You can see everything. Everything that is good and decent.

That is the job before us – to get through this, and beyond it. And you’re just the ones to take us there.

Conclusion

Thank you, Senator Flake, for your speech and your challenge to us all.

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[1] Senator Jeff Flake’s Courageous Defense of American Values and Democracy, dwkcommentaries.com (Nov. 6, 2017).

[2]  Senator Jeff Flake Condemns President Trump’s “Fake News” Tirades, dwkcommentaries.com (Jan. 20, 2018).

[3] Press Release, Flake Delivers Class Day Speech at Harvard Law School (May 23, 2018).

 

 

The Joy of Researching and Writing About Edward B. Burling and Joseph Welch

Previous posts have reviewed many aspects of the lives of Edward B. Burling, a prominent Washington, D.C. attorney, and of Joseph Welch, a prominent Boston attorney. (See Appendices A and B.) Those posts are the result of extensive research over many years and in many places besides Internet research on my home computer. Now I share how that research and writing has brought joy to my life. [1}

In 1982 I took a sabbatical leave from my Minneapolis law firm (then Faegre & Benson; n/k/a Faegre Baker Daniels) to teach a course about law at my alma mater, Grinnell College, and in my spare time I examined materials in the College Archives about these two gentlemen.

While on a business trip to Boston in 1985 I found spare time to examine a collection of Joe Welch Papers at the Boston Public Library. While focusing on those relating to the Army-McCarthy Hearings, I happened upon letters between Welch and Burling.

In 1986 I returned to Boston to attend the Harvard Law School’s Summer Program for Lawyers and discovered  in Harvard’s collection of the papers of Learned Hand, an eminent federal judge and one of my legal heroes, that he and Burling had been law school contemporaries and life-long friends. This further spurred my interest in Burling as I read their extensive correspondence. On this occasion I also visited Welch’s law firm and interviewed some of the other lawyers who were involved in the Army-McCarthy Hearings.

When I retired from the active practice of law in the summer of 2001, one of my future projects was to review all of the information that I had gathered and write articles about the two gentlemen, and I mentioned this project in an essay about retirement that was posted on the Internet by another law school friend as part of materials for a lawyers’ seminar.

In 2005 I was inspired to finish these papers when I received a totally unexpected call from Professor Roger Newman, the biographer of Hugo Black and a member of the faculty of Columbia University. Newman said that he was the editor of the forthcoming Yale Biographical Dictionary of American Law and asked if I would be interested in writing short biographies of Welch and Burling for that book. Newman said he had discovered my interest in these men from the just mentioned essay on the Internet. I said that I would be glad to do so.

I then retrieved my materials, did additional research and wrote the two 500-word biographies. (This Biographical Dictionary, which was published in 2009 by Yale University Press, was the first single-volume containing concise biographies of the most eminent men and women in the history of American law who had devised, replenished, expounded, and explained law. See Yale University Press, The Yale Biographical Dictionary of American Law (ISBN 978-0-300-11300-6),

These sketches, however, barely scratched the surface of what I wanted to say about Burling and Welch.. As a result, I did further research, including examination of several collections of original papers at the Library of Congress. My research about Burling and Welch now has been documented in multiple posts to this blog.

My interest in these two men was sparked by my sharing with them growing up in small Iowa towns, graduating from Grinnell College and prestigious law schools and becoming lawyers in major law firms in different cities and by meeting Burling in 1959 and hearing Welch speak at Grinnell in 1957. My research and writing about them enabled me to use my legal skills in projects that were personally important to me, rather than those that were driven by clients and courts. The research also produced many thrills of discovery, including some totally unrelated to these two men.

I am grateful that I have found great joy in doing this research and writing.

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[1] An earlier version of this post was published as Adventures of a History Detective (April 5, 2011).

Posts about Edward B. Burling to dwkcommentaries.com (Appendix A)

Katherine Graham’s Connections with Harry Hopkins and Edward B. Burling (Feb. 13, 2018), https://dwkcommentaries.com/2018/02/13/katharine-grahams-connections-with-harry-hopkins-and-edward-b-burling/

Edward B. Burling’s Early Years in Iowa, 1870-1890 (Feb. 17, 2018), https://dwkcommentaries.com/2018/02/17/edward-b-burlings-early-years-in-iowa-1870-1890/

Edward B. Burling’s Years at Harvard University, 1890-1894 (Feb. 18, 2018), https://dwkcommentaries.com/2018/02/18/edward-b-burlings-years-at-harvard-university-1890-1894/

Edward B. Burling: The Chicago Attorney, 1895-1917 (Feb. 19, 2018), https://dwkcommentaries.com/2018/02/19/edward-b-burling-the-chicago-attorney-1895-1917/

Edward B. Burling: The Federal Government Attorney, 1917-1918 (Feb.20, 2018), https://dwkcommentaries.com/2018/02/20/edward-b-burling-the-federal-government-attorney-1917-1918/

Edward B. Burling: The Prominent Washington, D.C. Attorney, 1919-1966 (Feb.21, 2018), https://dwkcommentaries.com/2018/02/21/edward-b-burling-the-prominent-washington-d-c-attorney-1919-1966/

Edward B. Burling’s Life-Long Friendship with Learned Hand (Feb. 22, 2018), https://dwkcommentaries.com/2018/02/22/edward-b-burlings-life-long-friendship-with-learned-hand/

Edward B. Burling: The Character of the Man (Feb. 25, 2018), https://dwkcommentaries.com/2018/02/25/edward-b-burling-the-character-of-the-man/

The Joy of Researching and Writing About Edward B. Burling and Joseph Welch (Feb. 26, 2018), https://dwkcommentaries.com/2018/02/26/the-joy-of-researching-and-writing-about-edward-b-burling-and-joseph-welch/

Posts About Joseph Welch to dwkcommentaries.com (Appendix B)

Joseph Welch Before the Army-McCarthy Hearings (June 14, 2012), https://dwkcommentaries.com/2012/06/14/joseph-welch-before-the-army-mccarthy-hearings/

The U.S. Army’s Hiring of Attorney Joseph Welch for the Army-McCarthy Hearings (June 8, 2012), https://dwkcommentaries.com/2012/06/08/the-u-s-armys-hiring-of-attorney-joseph-welch-for-the-army-mccarthy-hearings/

U.S. Senator Joseph McCarthy’s Nemesis: Attorney Joseph Welch (June 4, 2012), https://dwkcommentaries.com/2012/06/04/u-s-senator-joseph-mccarthys-nemesis-attorney-joseph-welch/

Attorney Joseph Welch’s Performance at the Army-McCarthy Hearings (June 6, 2012), https://dwkcommentaries.com/2012/06/06/attorney-joseph-welchs-performance-at-the-army-mccarthy-hearings/

President Dwight D. Eisenhower’s Involvement in the Army-McCarthy Hearings (June 12, 2012), https://dwkcommentaries.com/2012/06/10/president-dwight-d-eisenhowers-involvement-in-the-army-mccarthy-hearings/

President Eisenhower’s Secret Campaign Against Senator Joe McCarthy (July 27, 2017), https://dwkcommentaries.com/2017/07/26/president-eisenhowers-secret-campaign-against-senator-joe-mccarthy/

Joseph Welch After the Army-McCarthy Hearings (June 12, 2012), https://dwkcommentaries.com/2012/06/12/joseph-welch-after-the-army-mccarthy-hearings/

U.S. Senator Joseph McCarthy Encounters Langston Hughes at Minneapolis’ Guthrie Theater (May 13, 2012), https://dwkcommentaries.com/2012/05/13/u-s-senator-joseph-mccarthy-encounters-langston-hughes-at-minneapolis-guthrie-theater/

Legal Ethics Issues in the “Anatomy of a Murder” Movie (June 27, 2012), https://dwkcommentaries.com/2012/06/27/legal-ethics-issues-in-the-anatomy-of-a-murder-movie/

The Joy of Researching and Writing About Edward B. Burling and Joseph Welch (Feb. 26, 2018), https://dwkcommentaries.com/2018/02/26/the-joy-of-researching-and-writing-about-edward-b-burling-and-joseph-welch/

 

 

 

 

Edward B. Burling: The Character of the Man

This series about the life of Edward B. (“Ned”) Burling commenced with a post about his connections with Katherine Graham, the owner and publisher of the Washington Post, and then retreated in time to a post about his birth and early years in Iowa, 1870-1890, followed by a post about his four years at Harvard University in Cambridge, Massachusetts, 1890-1894, another post about his 22 years as a Chicago attorney, 1895-1917, a post about his two years as a federal government attorney in Washington, D.C., 1917-1918 and another about his 48 years as a prominent private attorney in Washington D.C., 1919-1966. The last highlighted his long friendship with Learned Hand, a notable federal judge on the Second Circuit Court of Appeals. Now we examine Burling’s overall character. [1]

Burling’s Generosity

Ned accumulated substantial wealth through the practice of law and investments, and his generosity was shown by his gift of $700,000 to his alma mater, Grinnell College, towards the Burling Library‘s total cost in 1959 of $1.3 million ($6.0 million of $11.1 million in February 2018 dollars) But he insisted the Library not be named after him; instead, as the original plaque at its entrance stated, it was named “in memory of Lucy B. Burling 1841-1936,” the benefactor’s mother.

He also made other direct, usually anonymous, gifts to the College  plus financing some students’ expenses. In short, he was a major contributor to the College. Other gifts to the College by his second wife and widow, Bertha Blake Burling, were the Burling mansion in the Embassy Row area of Washington, D.C. and their Maine summer cottage.

Burling also endowed the College’s Linn Smith Prize for Excellence in Mathematics. Smith was a native Iowan and a 1920 honors math graduate of Grinnell who drowned while taking care of Burling’s two young sons at New Hampshire’s Cornish Colony and whom Burling unsuccessfully tried to rescue. Burling was very upset about the drowning and said that Smith was “sweet tempered, devoted and unselfish. If he had been meaner or more faithless, or selfish he would have survived. . . . He had this notion which poor boys that go to Grinnell are apt to get, that is they glory in sacrificing themselves, go without food, go without pleasure, generally go without and your record is sure. I say the only consequence of that philosophy is that you get nothing.”

His generosity was not limited to the College. He anonymously helped other young people attend other colleges and cope with other necessities. After his death, his widow endowed the Edward B. Burling Chair in International Law and Diplomacy at The Johns Hopkins University’s School of Advanced International Studies. Ned along with Paul Nitze (a U.S. diplomat) and Christian Herter (another U.S. Secretary of State) had helped to establish this School in the 1940’s, and Burling had served on its Advisory Council until his death. In similar vein, some of his friends established a scholarship in his name at the Harvard Law School.

Burling’s Other Qualities

After his death some of his friends added their tributes. Dean Acheson, his law partner and former Secretary of State, said that Burling often gave the impression of “being tough, and worldly, and cynical and brutal,” but he really was generous, warm and compassionate. Burling was known, said  Acheson, for a “rare originality and power of mind, a teasing sardonic wit and willful friendships and dislikes.”

Thomas Gardiner Corcoran described his friend as “Poet born, his poetic imagination penetrated everything he touched–the breakthrough of the Bull Moose movement–the law firm he transmuted from a ‘dusty answer’ to the excitement of a 51st state–the self-regenerating waves of compassionate intelligence he se moving as a part of all he met–and he met everybody.” In addition, Corcoran noted, “Uncle Ned lived beyond himself in the hundreds of younger men he gave courage to outdo themselves in confidence of his never-failing support win or lose.”

In similar vein, another friend, John Lord O’Brian, said, “His deep personal interest in the affairs of [C&B} . . . and the selection of partners and associates became his chief interest. This, however, did not prevent his accumulating a group of remarkable friends chiefly in the field of public affairs. His quizzical humor and occasional affectations of worldliness concealed a curiously sensitive and compassionate nature, and gave a unique flavor to his personality. Always reticent about his personal affairs, he was singularly generous in his gifts and discriminating in his help to innumerable individuals.”

The Burling genealogist described Ned as “[a]ambitious and brilliant . . .; personable, charming, and gregarious (many friends and acquaintances of high standing); robust; outspoken and humorous . . .; largely generous.” On the other hand, according to the genealogist, he was “careless of personal relationships, and evidently not too well suited to monogamy.” Indeed, he once shocked a young relative by asking what she thought about his having had many extramarital affairs.

One of his closest friends concluded that Ned was exceptional in “his extraordinary capacity for drawing into the circle of his friendship men gifted with unusual intellectual perceptiveness” or “men of extraordinary ability.” The previous list of frequent guests at Burling’s Cabin is but a brief glimpse at this circle of friendship. Ned was also skillful in “drawing out the views of other people while he himself listened” and “the interplay of his whimsical humor that produced the charm and the flavor.”

Conclusion

Humble or modest he was not. At age 96, he said, “I was a piece of good luck for father, mother, brother and two sisters. To some extent, some more and some less, they were benefited by my being in the world.”

The concluding post in this series will share this blogger’s joy in researching and writing about Burling (and another Grinnell College eminent alumnus, Joseph Welch).

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[1[ Citations to the sources for this post are found in this blogger’s Edward Burnham Burling, The College’s Quiet Benefactor (April 2008)(18-page essay and bibliography; on file in Grinnell College’s Special Collections and Archives).

 

 

 

 

Edward B. Burling’s Life-Long Friendship with Learned Hand

This series about the life of Edward B. (“Ned”) Burling commenced with a post about his connections with Katherine Graham, the owner and publisher of the Washington Post, and then retreated in time to a post about his birth and early years in Iowa, 1870-1890, followed by a post about his four years at Harvard University in Cambridge, Massachusetts, 1890-1894, another post about his 22 years as a Chicago attorney, 1895-1917, a post about his two years as a federal government attorney in Washington, D.C., 1917-1918 and another about his 48 years as a prominent private attorney in Washington D.C., 1919-1966.[1]

Friendship with Learned Hand

Learned Hand

Burling and Learned Hand met for the first time in their first year at Harvard Law School in 1891 and thereafter developed a life-long friendship while Hand was an eminent federal judge. [2] Burling once said, Hand was “much more intelligent [than other people and] appreciates me and understands me. [He is] … the only worthy recipient of my most intimate confessions.” These confessions included the following:

  • “One of my present theories is that it doesn’t pay to be good.”
  • “I know [in 1925] I do not want to practice law. I know I do not want to be a judge. I know I want to have pleasant, amiable, witty, gay people around me. I know I am tired of politics . . . . I want poetry, love, wine, interesting books, wide, comfortable bed with fresh bed clothing, looking out into gardens with bloomi ng trees . . . . I want to be moderately rich and have nice food and a smooth running automobile. . . . Somehow I feel I am going to get what I want.”
  • In 1959, Burling lamented that he was “afflicted with what you call  ‘frivolousness’ ” and that “this human pilgrimage seems to me really more awful, more terrifying and more pathetic than it does to most other people. I cannot bear to admit how terrible it really is. Therefore, I act in a rather silly fashion. I do the inappropriate thing. I offend the earnest, godfearing company. What I am apt to say sounds in bad taste.”

In 1925, Burling and Hand exchanged comments about the good life that were prompted by questions from a young man who was thinking about applying for a Rhodes Scholarship. Burling, advising the young man not to apply and instead to go into business, said that he believed four things were good: (1) “Freedom from compulsion by others, whether economic, social or political.” (2) “An active mind that keeps being interested in the changing panorama and its own operation.” (3) “Direct contact with nature.” (4) “The society of the few people of whom you are really fond.” This list, Burling added, did not include “success, power, achievement, position, least of all ‘service to humanity.'”  Hand disagreed, saying that the man should apply for the Scholarship and that “the life of the mind offers the most permanent and lasting satisfactions.”

Burling also shared with Hand observations about the political events of the day, including the following:

  • After the end of World War I Burling criticized the League of Nations as proposed by President Woodrow Wilson because it was not like the league Teddy Roosevelt had proposed, i.e., it was “not an association between nations freely entered into for the purpose of preserving boundaries established by tradition and usage”and instead was “an alliance for the purpose of perpetuating a military ascendancy over defeated nations.”
  • After the 1928 Republican Party convention, Burling said, “Never was a man of God [Herbert Hoover] more ably assisted by gentlemen who are not unknown in more worldly haunts.” Hoover “will smother Al. Smith–He is an extraordinary phenomenon. He will dominate American affairs for 8 years and after that will be the arbiter. . . . [You] will also see Hoover playing the game very successfully. . . . It will be the most powerful administration in the memory of man–and he will be a good party man. He will run the party. A man of God who is practical–you cant [sic] beat that combination.” (Emphasis added.) Apparently Burling had forgotten his inability to get along with Hoover at the U.S. food Administration in 1917. Ned also did not anticipate the Great Depression and FDR.
  • Soon after the start of what became World War II, Ned observed that “the thing for old men to do is to be as gay as we can be and just recognize that all things are subject to change. . . . There is something in us that craves permanence, finality; and yet we should be able to see that it is and always has been an idle dream. I am not in the least an optimist. . . . I think it is quite possible that for centuries the world will get worse, and that the world will be ruled by murder, treachery, brute force, but if that is the kind of animal man is, the thing to do is to recognize it and made such adjustments to it as are necessary. We always knew that in the past civilization had fallen before inroads of vigorous barbarians. What we did not foresee was that barbarians may organize in our very midst. But if that is what it is, we must deal with it as it is. . . .” Burling continued, “Although . . . society may proceed downward for centuries, I am rather inclined to think that will not be true. I rather think that this is like the eruption of a violent disease, and that the disease will subside. I think there must be many many people in the world who would like to surpress the armed murderer [Hitler?], and I believe that sometime they will be able to assert their power and that there will be an armed force controlled in the interest of a peaceful world that will keep the law breakers down.”
  • In the Spring of 1950 while touring Europe, Ned thought it not apparent “why the U.S.A. is first power in the world. Europe as a whole seems to me to have a sturdier population with more dependable qualities, the soil is fertile and it has all the natural resources. In the long run it may be that Europe will maintain its primacy.”
  • In the summer of 1952 Ned reacted to the presidential nominations of Adlai Stevenson and Dwight D. (“Ike”) Eisenhower. Stevenson, he believed, “will be hard to beat. His two speeches before the [Democratic] Convention were different from most political addresses. In the contest with Ike, he is going to be on his own ground. Ike is a novice. But in any case we are fortunate in having two such candidates.”
  • Ike and Nixon, of course, won the 1952 election, and four years later, Ned reflected on a re-run of the 1952 election.  He was most pleased by “the way Truman fell on his face [at the Democratic Convention]. He seemed to me like a bouncy monkey on a stick” or “a very cheap little ward politician.” Ned added, “The charm that Eisenhower’s personality exerts is an extraordinary phenomenon. But the Republican Party is relying too much on that. . . . After all, since 1952 the Democrats have been winning about every election–local and national. And [Adlai] Stevenson is a much abler campaigner that he was four years ago. And many, many people will not vote Republican because of Nixon.”
  • During the 1964 presidential campaign, Ned supported Lyndon Johnson, the Democrat, against Barry Goldwater, the Republican. At a White House dinner, Burling told Johnson that as the sole survivor of the Bull Moose Party, Burling could assure Johnson that he had the unanimous support of that Party.
  • Just after the inauguration of Lyndon Johnson as President in January 1965, one of Burling’s friends reported that at the annual dinner of one of their clubs, Richard Nixon had given a very witty “acceptance” speech for their satirical nomination of him for President. Nixon described himself as “the most over-nominated and under-elected man in history.” Nixon continued by saying that  he was opposed to the impeachment of Chief Justice Earl Warren because at 73 the justice was an old man and instead should be retired by setting age 72 as a mandatory retirement age for Supreme Court Justices and that “Bobby Kennedy was engaged in the process of becoming the father of his country.”

Conclusion

The above tidbits were discovered in my rummaging through Judge Learned Hand’s file of correspondence with Ned that was part of the Hand Papers at the Harvard Law School Library. When I finished reading the file, I was disappointed that most of the letters discussed what seemed like trivial matters and did not engage in intelligent discussions of the important issues of the day. I had forgotten that they were dear friends who enjoyed staying in touch and looking forward to  being together again.

The next and penultimate chapter in this account of the life of Burling will discuss the character of the man.

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[1] Citations to the sources for this post are found in this blogger’s Edward Burnham Burling, The College’s Quiet Benefactor (April 2008)(18-page essay and bibliography; on file in Grinnell College’s Special Collections and Archives).

[2] The definitive biography of the judge, Learned Hand: The Man and the Judge (2d ed., Oxford University Press, 2011), was written by Gerald Gunther (1927-2002), a prominent constitutional law scholar and professor at Stanford Law School.

 

 

 

 

Edward B. Burling, The  Prominent Washington, D.C. Attorney, 1919-1966

This series about the life of Edward B. (“Ned”) Burling commenced with a post about his connections with Katherine Graham, the owner and publisher of the Washington Post, and then retreated in time to a post about his birth and early years in Iowa, 1870-1890, followed by a post about his four years at Harvard University in Cambridge, Massachusetts, 1890-1894, another post about his 22 years as a Chicago attorney, 1895-1917, and a post about his two years as a federal government attorney in Washington, D.C., 1917-1918.[1]

Burling’s Private Legal Career in Washington, D.C.

In 1919, Burling co-founded the Covington & Burling law firm (C&B and n/k/a Covington) and thereafter served as its de facto managing partner. In the words of his partner and former U.S. Secretary of State, Dean Acheson, Ned helped to create “a practical organization, engaged in achieving practical ends, for real people, who were in real trouble.” To that end, Burling hired talented recent law school graduates, gave them responsibility as soon as possible and compensated them on the basis of merit, rather than seniority.” Burling also developed a personal practice focusing on corporate transactions and federal taxation.

C&B’s first big case shortly after its founding was a contingent fee case for the Kingdom of Norway against the United States for $16 million arising out of the U.S. taking of contracts for ship construction during World War I. For assistance, Burling hired his old law school friend, George Rublee, and the 28-year old Acheson, who had just finished a clerkship with U.S. Supreme Court Justice Louis Brandeis. Recognizing Acheson’s talents, Ned asked him to argue an important and difficult issue in the six-week hearing before the arbitral panel at the Peace Palace at The Hague. During the young Acheson’s argument, Burling slipped him a terse note: “Shut up.” Acheson, however, ignored this order and continued the argument, which lead to an important concession by the other side (the U.S.). The result was a 1922 award of nearly $US 12 million to Norway and a subsequent Norwegian knighthood for Burling.

Later Burling ironically pointed out that after Acheson made his very first court argument at the Peace Palace, the rest of his legal career would all be downhill. Fortunately for the law firm and the U.S. that was not true. Whenever Acheson was not holding high positions in the U.S. Government, he was practicing law at C&B. Through it all, Acheson and Ned had a strong friendship. Shortly after Acheson became Secretary of State in 1949, Burling wrote to him,

  • “I have been impressed by the growing kindness and consideration for others that you have shown. The absence of any feeling of importance is rare in one who has attained the high office that is yours. And at the same time a growing strength is apparent. Your head has always been better than other heads but once you were inclined to defer to more assertiveness. You show less of that trait. And you have no reason to yield your opinion when you have come to a considered conclusion. You have a right to believe that your conclusion is probably better than what will be offered by anyone else. So trust in yourself and go ahead and do a swell job for the world.”

A year later, Burling observed that Acheson was “one of our great men. Great, I mean, looking at the entire history of our country. I am greatly impressed by the way he has grown. He is a powerful figure.”

As noted in previous post about Burling and Katherine Graham, on October 3, 1996, Edward B. Burling died at age 96 in Washington Hospital Center. According to an editorial in his honor in the Post that Graham may have helped write,  Burling was the city’s “grand old man of the law [who from] the days when he was graduated from Harvard Law School in 1894, with one of the best records ever made there, he had been an outstanding legal scholar. And with the law as the base of his operations, he also  exerted a substantial influence in the fields of business, government and community relations.”

The editorial also stated that at the C&B law firm the “scholarly and retiring Mr. Burling, who made a specialty of cultivating and training brilliant young lawyers, was chiefly responsible  for keeping the firm’s performance  at a high level of professional excellence.”

Covington is still one of the world’s preeminent law firms with over 1,000 lawyers in 12 offices in the U.S. and around the world, and it remains dedicated to the founders’ values of excellence, tolerance, integrity and commitment to public service and professionalism [1]

Conclusion

We next will look at some of the highlights of Burling’s life-long friendship with Learned Hand.

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[1] Citations to the sources for this post are found in this blogger’s Edward Burnham Burling, The College’s Quiet Benefactor (April 2008)(18-page essay and bibliography; on file in Grinnell College’s Special Collections and Archives).

 

 

 

Edward B. Burling: The Chicago Attorney, 1895-1917

This series about the life of Edward B. (“Ned”) Burling commenced with a post about his connections with Katherine Graham, the owner and publisher of the Washington Post, and then retreated in time to a post about his birth and early years in Iowa, 1870-1890, followed by a post about his four years at Harvard University in Cambridge, Massachusetts, 1890-1894.[1]

The Chicago Attorney

After finishing Harvard Law School with such a distinguished record, Ned had high hopes of obtaining a job as a young lawyer and earning good money. But that did not happen, given the law firm practices of the day.

Instead in 1895 he started with a Chicago firm at barely more money than he had made in 1887 at the Eldora grocery store. He continued to engage in the private practice of law in Chicago plus serving as Assistant Corporation Counsel for the City of Chicago through 1917, eventually making more money doing the typical work of most lawyers of the time and engaging in profitable real estate development in the Winnetka area on the North Shore.

He got married in 1902 to Louisa Green Peasley, the daughter of a wealthy and well connected Chicago businessman, and they had two sons, Edward Burling Jr. (1908) and John L. Burling (1912). But Ned was bored with his Chicago life.

In his efforts to leave Chicago, Burling in 1915 sought the Washington, D.C. position of General Counsel of the then new Federal Trade Commission with the support of Louis D. Brandeis, then a practicing Boston attorney, and Cyrus McCormick, the son of the inventor of the grain reaper and the owner of the International Harvester Company. But Ned did not receive the appointment and thus remained in Chicago for the next two  years.

During his Chicago years, however, Burling got a taste of politics. In 1896 he was a spectator at the Democratic National Convention in Chicago to hear William Jennings Bryan’s “Cross of Gold” speech, and in 1912 Burling was active in the Bull Moose Party that nominated Theodore Roosevelt for President. His allegiance to “the Rough Rider” persisted. In 1921, he told Learned Hand that Ned agreed “with everything that T.R. ever said” on political subjects, and throughout his life Ned often joked that he was  that Party’s sole survivor.

In the summer of 1911 Burling and his family spent the summer at the Cornish Colony in Cornish/Plainfield, New Hampshire and later bought a summer home in the Colony where they went every summer. It was a gathering place for artists, musicians, writers, journalists, lawyers and businessmen, including Judge Learned Hand (Ned’s great friend), Ethel Barrymore and President Woodrow Wilson.

Shortly before Burling left Chicago in 1917, he made an investment that proved to be one of the most important events in his life. He started a small surplus trading company that eventually became one of the largest metal-cutting tool manufacturers in the U.S.[1]

Conclusion

The next chapter of this recounting of the life of Burling will cover his two years as a federal government attorney in Washington, D.C.

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[1] Citations to the sources for this post are found in this blogger’s Edward Burnham Burling, The College’s Quiet Benefactor (April 2008)(18-page essay and bibliography; on file in Grinnell College’s Special Collections and Archives).