Previous posts have reported that according to Fareed Zakaria, Peggy Noonan and Ross Douthat, two classes of U.S. society have different opinions about how the U.S. should respond to the coronavirus pandemic: the Managerial Overclass or the Remote Class favors maintaining the lockdown until the virus has been controlled while the Underclass or the Exposed Class favors abandoning those policies and reopening as soon as soon as possible.[1]
Another New York Times columnist, Michelle Goldberg, disagrees. She believes that the conflict over policies regarding the pandemic are better explained by political party affiliations.[2]
Her dissent cites a recent public opinion poll in which “74 percent of respondents agreed that the “U.S. should keep trying to slow the spread of the coronavirus, even if that means keeping many businesses closed.” Agreement was slightly higher — 79 percent — among respondents who’d been laid off or furloughed.”[3]
Another basis for her opinion was research at the University of Chicago that found that “when it comes to judging policies on the coronavirus, ‘politics is the overwhelming force dividing Americans,’ and that ‘how households have been economically impacted by the Covid crisis so far’ plays only a minimal role.”[4]
More specifically, the Chicago survey showed that roughly 77 percent of Democrats favored lockdown measures remaining in place as long as needed compared with roughly 45 percent of Republicans. On the other hand, roughly 30 percent of the Republicans wanted such measures to remain no longer than a few more weeks versus roughly 4 parent of Democrats. The report adds, “the data reveals no strong association between having lost income due to COVID-19, or fear of losing one’s job, and views about the right length of the lockdown. Among survey respondents, 41 percent indicate having been negatively impacted financially by the COVID-19 crisis. Yet, all else being equal, these respondents were not more likely to favor a quick reopening.”
Goldberg also says, “Donald Trump and his allies have polarized the response to the coronavirus, turning defiance of public health directives into a mark of right-wing identity. Because a significant chunk of Trump’s base is made up of whites without a college degree, there are naturally many such people among the lockdown protesters.”
On the other hand, “The push for a faster reopening, even in places where coronavirus cases are growing, has significant elite support. And many of those who face exposure as they’re ordered back to work are rightly angry and terrified.”
Judge Brett Kavanaugh, President Trump’s nominee for the U.S. Supreme Court, is supposed to be an “originalist” or someone who bases judicial decisions on the “original” meaning of the U.S. Constitution and statutes. The logic of this philosophy is impeccable. The framers of the Constitution and its amendments and the Congress in statutes make the law and judges seek to ascertain their original intent and then apply the original intent to decide cases.
Thus, some of the important questions for his confirmation hearing revolve around this question: how do you attempt to determine what the original intent of constitutional words or phrases is?
Important guidance on this problem is provided by a recent decision by the U.S. District Court for the District of Maryland regarding the original meaning of the constitutional word “emolument” and by new searchable databases of various writings from the era of the framers of the Constitution.
The Meaning of the Constitutional Word “Emolument”[1]
On July 25, 2018, the U.S. District Court for the District of Maryland denied President Trump’s motion to dismiss the Amended Complaint alleging that his “actual or potential receipt, directly or indirectly, of payments by foreign, the federal, and state governments (or any of their instrumentalities) in connection with his and the Trump Organization’s ownership of the Trump International Hotel in Washington, D.C.” violates the Foreign and Domestic Emoluments Clauses of the U.S. Constitution.
The key issue for the court in its 52-page well-reasoned and well-written opinion denying the dismissal motion was the original meaning of the world “emolument” in these two constitutional clauses::
The Foreign Emoluments Clause. “And no Person holding any Office of Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” (U.S. Const., Art I, sec. 9, cl. 8 (emphasis added).)
The Domestic Emolument Clause. “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” (U.S. Const., Art II, sec. 1, cl. 7 (emphasis added).)
After first reviewing the parties’ different interpretations of the text of these clauses, the court’s opinion began “with a strong presumption that the term ‘emolument’ should be interpreted broadly to mean ‘profit,’ ‘gain,’ or ‘advantage,’ essentially covering anything of value.” (P. 22.)
The court then turned to the “Original Public Meaning” of the word since the Supreme Court has held that as the Constitution was “written to be understood by the voters at the time,” it is important to consider “the meaning of the term ‘emolument’ against the backdrop of what ordinary citizens at the time of the Nation’s founding would have understood it to mean.” (Id.) This analysis reinforced the court’s strong presumption from the text that the term had a broad meaning. Important in this regard for the court were the broad use of that term in the following (id. at 22-30):
An “article by Professor John Mikhail of Georgetown University Law Center in which, following exhaustive research, he concluded that “every English dictionary definition of ‘emolument’ from 1604 to 1806” includes Plaintiffs’ broader definition.”[2]
Drafters of state constitutions;
Blackstone’s Commentaries on the Laws of England; and
The Framers themselves.
Further support for the court’s conclusion was found in Interpretations of the term by the U.S. Office of Legal Counsel and Comptroller of the United States.
The Meaning of the Second Amendment’s Right To “Bear Arms”
The Second Amendment to the U.S. Constitution states the following: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (Emphasis added.)
The U.S. Supreme Court in District of Colombia v. Heller, 554 U.S. 570, 576-626 (2008) held, 5-4, that the Second Amendment to the U.S. Constitution protected “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The majority opinion in Heller by Associate Justice Antonin Scalia concluded that the phrase “bear arms” in that amendment “was not limited to the carrying of arms in a militia.” (Id. at 586.)
Disagreement with that conclusion has been voiced by Dennis Baron, Professor of English and Linguistics at the University of Illinois at Urbana-Champaign. The basis for this conclusion is the result of a search for the term “bear arms” in the following two new databases compiled by the Brigham Young University College of Law:[3]
The Corpus of Founding Era American English is composed of 96,615 texts with nearly 144 million words (as of 07/29/18) in documents used, 1760-1799, by ordinary people of the day, the Founders, and legal sources, including letters, diaries, newspapers, non-fiction books, fiction, sermons, speeches, debates, legal cases, and other legal materials.
The search of the first database yielded 281 instances of the phrase “bear arms” while the second search produced 1,572 instances. After eliminating about 350 duplicates, there were about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful did not refer to “war, soldiering or organized, armed action.” Therefore, Baron concludes, these databases confirm that the natural meaning of “bear arms” in the framers’ day was connected with militias or the military.
According to Baron, further support for this conclusion is found in the fact that the phrase “bear arms” “has never worked comfortably with the language of personal self-defense, hunting or target practice.” Here, Baron referred to this 1995 comment by historian Garry Wills: “One does not bear arms against a rabbit.”
And in 1840, said Baron, in an early right-to-bear-arms case, the Tennessee Supreme Court stated: “A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”
Moreover, Baron pointed out that in the oral arguments in the Heller case itself, U.S. Solicitor General Paul D. Clement, who was advocating for the invalidity of the District of Colombia gun law, initially said that “bear arms” was meant to carry them outside the home. But he was interrupted by Associate Justice David Souter, who said, “But wait a minute. You’re not saying that if somebody goes hunting deer he is bearing arms, or are you?” Clement responded, “I would say that and so would [James] Madison and so would [Thomas] Jefferson.” But Souter was not persuaded and asked, “In the 18th century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?” Clement finally retreated with this statement: “Well, I will grant you this, that ‘bear arms’ in its unmodified form is most naturally understood to have a military context.” Obviously the phrase is not modified in the Second Amendment.
New Databases of Written Materials from Framers’ Era
In addition to the previously mentioned databases compiled by the Brigham Young University College of Law, a similar project is being undertaken by a legal historian at the University of Chicago Law School, Alison LaCroix , and a linguist, Jason Merchant, the Lorna Puttkammer Straus Professor, Department of Linguistics and Humanities at the University of Chicago. Their project seeks to utilize the vast collection of historical texts available through Google Books to enable users to study in a more rigorous and sophisticated way how language and meaning have changed. This project, Professor LaCroix, said, “meets originalism on its own terms.”[4]
Questions for Judge Kavanaugh
Therefore, this blogger suggests that at the confirmation hearing, Judge Kavanaugh be asked at least the following questions:
How do you attempt to determine the original meaning or intent of a word or phrase in the U.S. Constitution?
What sources do you use in such attempts?
Do you use computer databases of written materials from the framers’ era?
If so, which ones? Why those? How many texts are in those databases?
If not, why not?
Have you ever used the BYU Law School’s Corpus of Founding Era American English?
If not, why not?
If yes, for what issue? Result?
Have you ever used BYU Law School’s Corpus of Early Modern English?
If not , why not?
If yes, for what issue? Result?
If you were confirmed to be an Associate Justice of the Supreme Court, would you be reluctant to overrule one of its own precedents that, in your judgment, erroneously interpreted the original intent or meaning of a constitutional word or phrase?
If you had been on the Court in the 1950’s, for example, would you have been reluctant to overrule Plessy v. Ferguson?
If you are confirmed, would you be reluctant to overrule the Supreme Court’s interpretation of the Second Amendment’s “bear arms” phrase in District of Columbia v. Heller?
A rare and limited public opinion poll of Cubans showed strong support for increased economic opportunity and growth. The poll in Cuba was a national random route-sample of 840 Cubans who were 18 years and older that was conducted between October 3 and November 26, 2016 by NORC, a respected public-opinion organization, at the University of Chicago.[1]
Cuban Economic Issues[2]
Many Cubans feel stuck in the current economic climate. Overall, 46 percent say the current condition of the Cuban economy is poor or very poor while 35 percent say it is fair. Only 13 percent of Cubans describe the condition of the Cuban economy today as good or excellent. Moreover, few Cubans think the economy is going to improve anytime soon: 47 percent say the economy will stay about the same and 8 percent say it is going to get worse while 33% say the condition of the economy is going to get better over the next three years,
Cubans have a slightly more positive view of the state of their family’s finances, though few anticipate improvement in the coming years: 24% rate their finances as poor or very poor while 18% rate the current condition of their family’s finances as good or excellent. Nearly 6 in 10 expect their finances will stay the same in the future.
Looking ahead, Cubans would like to see the government focus on economic growth and maintaining stability over the next 10 years. Fully 95 percent of Cubans say having a high level of economic growth is an extremely or very important goal. Nearly as many (87 percent) say it is very or extremely important that Cuba prioritize maintaining stability over the next 10 years.
Roughly two-thirds of Cubans (65 percent) say there should be more private ownership of business and industry, while 29 percent say there should be more government ownership. Many Cubans have entrepreneurial goals; more than half (56 percent) say they would like to start their own business over the next five years. Sixty-eight percent see competition within the marketplace as positive because it stimulates people to work hard and develop new ideas. One-quarter say competition is harmful and brings out the worst in people.
Over half of Cubans say they would like to move away from Cuba if given the chance. Of those who would leave, nearly 7 in 10 say they would want to go to the United States.
Other Cuban Problems
Crime is seen as the most serious issue facing Cuba today, with 51 percent of Cubans reporting that it is an extremely or very serious problem. Another 4 in 10 say that poverty (41 percent), lack of internet access (41 percent), and corruption (38 percent) are each serious issues in Cuba.
In day-to-day life, many Cubans proceed with caution in placing trust in others and in expressing themselves publicly. Just 21% say they can always express themselves freely, while 76% say they must be careful in what they say sometimes.
Most Cubans get their news from state-owned television stations and newspapers, Cuban radio, and family or friends. Just 1 in 4 use foreign media sources. But, even controlling for other demographic and socioeconomic factors, those Cubans who access foreign media are more positive about the national economy and their personal financial situations, more likely to be critical of some aspects of Cuban society, and more likely to set aspirational goals such as traveling abroad, starting their own business, and buying a car or home.
Cuba-U.S. Relations
Fifty-five percent of Cubans overall say that Cuba-U.S. normalization of relations will be mostly good for Cuba, while 3 percent say it will be mostly bad. Another 26 percent say it will have no impact. Thirteen percent aren’t sure what the impact will be.
On August 2 at the White House President Obama said Donald Trump was “unfit to serve as president” and urged the leaders of the Republican Party to withdraw their backing for his candidacy. This comment was part of a lengthy response to a reporter’s question at a joint press conference with Prime Minister Lee of Singapore. Many others have been voicing similar comments.
“I think the Republican nominee is unfit to serve as President. I said so last week, and he keeps on proving it. The notion that he would attack a Gold Star family that had made such extraordinary sacrifices on behalf of our country, the fact that he doesn’t appear to have basic knowledge around critical issues in Europe, in the Middle East, in Asia, means that he’s woefully unprepared to do this job.”
“And this is not just my opinion. . . . [There also have been] repeated denunciations of his statements by leading Republicans, including the Speaker of the House and the Senate Majority Leader, and prominent Republicans like John McCain. . . . [They] have to ask themselves is, if you are repeatedly having to say in very strong terms that what he has said is unacceptable, why are you still endorsing him? What does this say about your party that this is your standard bearer? This isn’t a situation where you have an episodic gaffe. This is daily, and weekly, where they are distancing themselves from statements he’s making. There has to be a point in which you say, this is not somebody I can support for President of the United States, even if he purports to be a member of my party.”
“And the fact that that has not yet happened makes some of these denunciations ring hollow. I don’t doubt their sincerity. I don’t doubt that they were outraged about some of the statements that Mr. Trump and his supporters made about the Khan family. But there has to come a point at which you say somebody who makes those kinds of statements doesn’t have the judgment, the temperament, the understanding to occupy the most powerful position in the world.”
“This “is different than just having policy disagreements. I recognize that they all profoundly disagree with myself or Hillary Clinton on tax policy or on certain elements of foreign policy. But there have been Republican Presidents with whom I disagreed with, but I didn’t have a doubt that they could function as President. I think I was right, and Mitt Romney and John McCain were wrong on certain policy issues, but I never thought that they couldn’t do the job. And had they won, I would have been disappointed, but I would have said to all Americans . . . this is our President, and I know they’re going to abide by certain norms and rules and common sense, will observe basic decency, will have enough knowledge about economic policy and foreign policy and our constitutional traditions and rule of law that our government will work, and then we’ll compete four years from now to try to win an election.”
“But that’s not the situation here. And that’s not just my opinion; that is the opinion of many prominent Republicans. There has to come a point at which you say, enough. And the alternative is that the entire party, the Republican Party, effectively endorses and validates the positions that are being articulated by Mr. Trump. . . . [But] I don’t think that actually represents the views of a whole lot of Republicans.”
Others’ Comments About Trump
Meg Whitman
Similar thoughts were offered the same day by a prominent Republican and Hewlett Packard executive, Meg Whitman. Saying that Mr. Trump was “a dishonest demagogue” who could lead the country “on a very dangerous journey,” Whitman announced that she supported Hillary Clinton, including making a substantial donation to her campaign. Whitman also stated that she “absolutely” stood by her comments at a private gathering of Republican donors this year comparing Mr. Trump to Hitler and Mussolini.[2]
Richard Hanna
Representative Richard Hanna, Republican of New York, who called Mr. Trump “unfit to serve.” The Congressman added, “I was stunned by the callousness of his comments [about the Kahns]. I think Trump is a national embarrassment. Is he really the guy you want to have the nuclear codes?” The Representative also announced that he was planning to vote for Mrs. Clinton in the November election.[3]
Newt Gingrich, the former Republican Speaker of the House and a loyal Trump supporter said,
Former House speaker Newt Gingrich, one of Trump’s most loyal defenders, warned that his friend was in danger of throwing away the election and helping to make Democratic nominee Hillary Clinton president unless he quickly changes course. Said Gingrich, “The current race is which of these two is the more unacceptable, because right now neither of them is acceptable. Trump is helping her to win by proving he is more unacceptable than she is.” More generally “a feeling of despair and despondence . . . [has fallen] over the Republican establishment.” [4a]
Other advocates for Republicans to withdraw their endorsements and support for Mr. Trump were a Wall Street Journal editor, as discussed in a prior post; and the editorial board of the New York Times[4] and the Washington Post;[5] conservative columnist Michael Gerson; [6] conservative author and pubic servant, Robert Kagan;[7] University of Chicago Professor Harold Pollack;[8] and many other Republicans.[9]
From France came this comment by President François Hollande. He said Mr. Trump’s comments on the Khan family were “hurtful and humiliating” and his “excesses end up making you feel like you want to retch.”[10]
Trump’s Reactions
Mr. Trump’s response to all this negative news? More of the same. On August 2 he said he had no regrets about his clash with the Khan family ; he declined to endorse for re-election several Republicans who had criticized him, including the House speaker, Paul D. Ryan of Wisconsin, and Senator John McCain of Arizona, who both face primaries this month.; and he had harsh words for Republican Senator Kelly Ayotte of New Hampshire, who had criticized his treatment of the Khans.[11]
The Republican vice presidential candidate, Mike Pence, however, on August 3 endorsed his “longtime friend” and a “strong conservative leader.” Paul Ryan. According to Pence, he had discussed his endorsement of Ryan with Trump on Wednesday morning and Trump had “strongly encouraged me to endorse Paul Ryan in next Tuesday’s primary.” [11a]
What will Trump now say about the federal judge of Mexican heritage, who on August 2 denied Trump’s motion to dismiss the case alleging that he had “knowingly participated in a scheme to defraud” with respect to Trump University. Instead, the judge ruled that this was an issue of fact that had to be resolved at trial.[12]
[4a] Rucker & Balz, GOP reaches ‘new level of panic’ over Trump’s candidacy, Wash. Post (Aug. 3, 2016), https://www.washingtonpost.com/politics/gop-reaches-new-level-of-panic-over-trumps-candidacy/2016/08/03/de461880-5988-11e6-831d-0324760ca856_story.html?hpid=hp_hp-top-table-main_gop-120pm%3Ahomepage%2Fstory.
[5] Editorial, Donald Trump is a unique threat to American democracy, Wash. Post (July 22, 2016); Editorial, Is the G.O.P. turning on Mr. Trump?, Wash. Post (Aug.1, 2016) ttps://www.washingtonpost.com/opinions/is-the-gop-turning-on-mr-trump/2016/08/01/70b0a02c-581d-11e6-9aee-8075993d73a2_story.html.
In “Gratitude I” I expressed gratitude for my educational and professional mentors. In “Gratitude II” the subject was gratitude for my wife, children and grandchildren, my spiritual journey and my financial ability to retire at age 62. Here are some other things to add to my list for thankfulness.
Malcolm Gladwell’s Outliers emphasizes the importance of an individual’s family and place and date of birth as determinants of success. Warren Buffett, the great investor from Omaha, frequently says how fortunate he is to have won the ovarian lottery by having been born born in the U.S. in the 1920’s. They remind me to be grateful for having been born in the U.S.A. It is indeed a great country and provided me with opportunity after opportunity.
I am also grateful that I was born at the end of the Great Depression-era and as a result am a member of a relatively small age-cohort. This has meant that I faced less competition for many of the opportunities I have had. This also meant that I entered the labor force, after all of my university-level education, in 1966 when there was strong demand in the U.S. for new law graduates with good records. Today I read the many stories in the press about the difficulties of contemporary law graduates in finding good jobs, and this is confirmed by the law students I know at the University of Minnesota Law School. I am grateful I was not in that predicament when I was starting out.
Contemporary law graduates and other young people today often finish their student days with large student debts, further exasperating their situation in this difficult job market. Because of the full-tuition scholarships I had over nine years at Grinnell College and the Universities of Oxford and Chicago, I did not have any student debt and did not face this problem. For this I am also grateful.
This last point also uncovers another reason for gratitude. The three scholarships I had were the result of businessmen (George F. Baker and Cecil Rhodes) and lawyers who were financially successful in capitalist systems and who had philanthropic motivations to give back and encourage others.
Elizabeth Warren, a Harvard Law School Professor and a candidate for the Democratic nomination for the U.S. Senate from Massachusetts, is absolutely correct when she says:
“There is nobody in this country who got rich on his own. Nobody. You built a factory out there? Good for you. But I want to be clear: you moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did.”
“Now look, you built a factory and it turned into something terrific, or a great idea? God bless. Keep a big hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.”
The same thought is expressed many times and many ways in the Bible. Here is what the letter to the Hebrews says. “[S]ince we are surrounded by so great a cloud of witnesses, let us also lay aside every weight and the sin that clings so closely, and let us run with perseverance the race that is set before us, looking to Jesus the pioneer and perfecter of our faith.” (Hebrews 12: 1-2.) “Let mutual love continue. Do not neglect to show hospitality to strangers, for by so doing that some have entertained angels without knowing it. Remember those who are in prison, as though you were in prison with them; and those who are being tortured, as though you yourselves were being tortured.” (Hebrews 13: 1-3.)
For all of these blessings, I give thanks to God and to those named and unnamed individuals who helped me along the way.
It is so easy to credit all of your successes to your own talents and hard work. I know that I too often do that.
Lately, however, I am pausing to acknowledge the many blessings in my life.
My mother and father, Marian Frances Brown and Ward Glenn Krohnke, were directly responsible for endowing me with good genes. They also were loving and nurturing, especially in my early years, and supporting my many activities through college and beyond. Although of modest financial circumstances, my parents were able to afford many of the creature comforts of American middle class life as I was growing up. I did not have to work to provide financial support for the family although in junior and senior high school I had part-time jobs to earn spending money and saving for college. My parents and I were in good health as I grew up with no major illnesses or accidents. I am grateful.
The public schools in my small Iowa home town of Perry did not provide many of the curricular and extra-curricular activities of private schools or large, prosperous suburban school districts in the rest of the country. Yet I had many excellent teachers who did not let me coast through school. The teacher I remember most fondly for this nurturing and challenging was Emma Hepker, who taught speech and English Literature. I also participated in speech contests, football, baseball, track and concert and marching band playing the e-flat alto saxophone. I often focused on the limitations of growing up in this small town far away from where things were really happening. But I can now see that there were benefits from this protective environment. I am grateful.
Grinnell College, the next stop on my educational journey, was challenging and enriching. My major was history with a lot of political science and economics. The professors were excellent, especially Joe Wall, Alan Jones, Samuel Barron, Richard Westfall and George Drake in history, Harold Fletcher in political science and Philip Thomas and John Dawson in economics. As a student at a small college I had the opportunity to participate in many activities, including intercollegiate baseball and football and student government. I am grateful.
In the midst of my Grinnell experience, I had one semester at American University on the Washington Semester Program. The focus was seminars and meetings with politicians, government officials and others as we learned about American government in our nation’s capitol. Professor Louis Loeb was the excellent leader of our group. Each of us also did independent research for a paper. My topic was the participation of political interest groups in the U.S. Supreme Court’s consideration of contempt of Congress cases, mostly coming from the House Un-American Activities Committee, which I thought itself was un-American. I spent a lot of time in the Supreme Court Library reading briefs of the parties and of amici curiae (friends of the court), usually the American Civil Liberties Union and the American Association of University Professors, and then comparing their arguments with the Court’s decisions. This was also the first time I had lived in a major city, and I thoroughly enjoyed its many cultural attraction. I am grateful.
After Grinnell, I had the tremendous privilege and honor of being a student for two years at the University of Oxford. There I studied or, as they say, “read” Philosophy, Politics and Economics. During the three eight-week terms of the academic year, each week I read suggested readings on two topics or issues and prepared essays for two tutorials, usually by myself, but sometimes with one other student. The tutors, especially John Sargent and Roger Opie in economics and Michael Hinton in philosophy, were warm and encouraging while pressing me onward. During the terms you could also attend university-wide lectures in the subjects while over the vacations or “vacs” you were expected to continue your readings in the three fields. At the end of my two years, I had university-wide examinations or “Schools” as they were given in a building called “The Examination Schools.” There were six required examinations (two each in the three disciplines) plus two optional subjects (mine were public finance and currency and credit). Each examination was three hours long, and you had to answer four questions from a printed list of about 12 questions. Your answers were then read and graded by a university-wide committee, and your overall grade or results were posted on the Oxford bulletin boards and published in the London Times. I am grateful.
I then returned to the U.S. for three years at the University of Chicago Law School. Whereas there was great student independence at Oxford, Chicago like most law schools had large classes with daily assignments, usually with professors grilling the students with questions about the cases or statutes we were studying. At the end of the semester there was the familiar practice of the course’s professor giving the final examinations. There were great professors at Chicago: Harry Kalven, Walter Blum, Francis Allen, David Currie, Philip Kurland, Phil Neal, Bernard Meltzer, Soia Mentschikoff and Kenneth Dam to name a few. I am grateful.
In 1966 I commenced practicing law with the Wall Street firm of Cravath, Swaine & Moore, probably the preeminent law firm in New York City. In my four years there as a junior associate, I worked on many interesting cases, usually with the “grunt” work. The senior lawyers for whom I worked helped me to “learn the ropes” of practicing law. Jack Hupper and Tom Barr were the most significant in that regard. I am grateful.
In 1970 my family and I moved to Minneapolis where I commenced what turned out to be a 31-year career with the law firm of Faegre & Benson (now Faegre Baker Daniels). Here too I worked with excellent lawyers who helped me develop my legal skills. I think especially of John French, Norman Carpenter, Larry Brown and Jim Loken; Jim is now a Judge of the U. S. Court of Appeals for the Eighth Circuit. I am grateful.
Jim de Jong, my friend, died on October 31, 2011, just one day short of his 70th birthday.
He was a Professor of German at Normandale Community College in Bloomington, Minnesota from 1969 through 1996, when he was forced to take early disability retirement because of multiple sclerosis. He held degrees from Western Illinois University (B.A., 1964), the University of Chicago (M.A., 1966) and the University of Minnesota (Ph.D., 1975). He was survived by his wife Sheila, daughter Anne-Marie, son Peter (Jill) and four grandsons.
Jim and I quickly discovered we shared some things in common besides our love for Westminster. We both were born in the same hospital in Keokuk, Iowa–only two years apart. We both held degrees from the University of Chicago. We both were interested in politics and liked to travel. We both then were parents of teenagers with all that that entails. And I at least knew a few words and phrase auf Deutsch.
Jim as a Professor of German had a special love and passion for one of the masterpieces of Germany’s greatest writer, Johann Wolfgang von Goethe. His Hermann und Dorotheais a love story of Dorothea, a poor refugee, and Hermann, the young son of a wealthy German businessman. His father is opposed to his son’s marrying Dorothea because she is below their status. Hermann’s mother, however, assists the son in overcoming his father’s opposition to the marriage. For Jim, this was a story that is “eternally valid, in contemporary dress” and could reach students no matter what time or place.
Jim’s collection of 162 editions of this epic poem now resides at the Elmer L. Andersen Library on the West Bank of the University of Minnesota.
As an undergraduate, Jim spent a year abroad at the University of Vienna. As reported in The Haunted Land: Facing Europe’s Ghosts After Communism Jim was befriended in Vienna by a lecturer from Czechoslovakia who was forced to try to recruit Jim as a spy for the Communist regime. After I learned this, I liked to tease Jim that I did not know if he had been–and perhaps still was– a spy for the Communists or for the CIA. Jim never answered my implicit question, and only redently did I learn from Sheila that Jim was interested in a CIA career, but was disqualified because of her British citizenship.
Jim was a good friend, always interested in what my wife and I, our sons and grandchildren were doing. Our Ecuadorian granddaughter still remembers at a very young age being in Jim and Sheila’s home one Christmas when in accordance with German custom, they decorated their Tannenbaum with actual burning candles.
Jim had the gift of being able to laugh at himself. He liked to tell us about his and Sheila’s vacation in Scotland to visit some of her relatives. Jim became ill and needed medical care. No medical doctor was available. “No problem,” Jim added–with a twinkle in his eye–“I was treated by a veterinarian.”
Later Jim discovered that he had suffered a heart attack just two days before they left home for that vacation. He converted this bad news into proof of his intestinal fortitude.
During his last years, Jim’s multiple sclerosis forced him to be confined to bed at home with occasional stays in hospitals and nursing homes.
I know how much Jim missed not being able to attend Westminster’s worship services and our Virtues and Values adult education class on Sunday mornings and to visit his grandsons in Boston and then Chicago.
Yet he did not complain or grumble about his plight. Jim accepted the limitations imposed by his disease with dignity and grace. He liked to tell us about the friendships he had made with his health care aides from Africa. There always was another language Jim wanted to learn.
Jim was still able to laugh and tell jokes. Some were even “off color.” He was a kind, gentle soul that we all will miss.
This blog started on April 4, 2011, and the blogger made 190 posts for the year plus 26 comments to previous posts.
WordPress reports there were 9,190 views for the year. The busiest day was October 25th with 131 views while December 27th had 113. Most of the viewers were from the U.S.A. with the United Kingdom and Canada not far behind.
Again according to WordPress the following were the most popular posts:
International Criminal Court: Four People Recommended for Election as ICC Prosecutor (Oct. 25, 2011)
My Grinnell College years (Aug. 27, 2011)
Celebrating the Rhodes Scholarships Centennial (June 21, 2011)
The Personal Jurisdiction Requirement for U.S. Civil Lawsuits (Aug. 8, 2011)
The IBM Antitrust Litigation (July 30, 2011)
My Years at the University of Chicago Law School (Dec. 27, 2011)
As indicated in detail on Page: Topical List of Posts and Comments to dwkcommentaries, the posts and comments for 2011 fell into the following categories:
From the Fall of 1963 through May of 1966 I was a student at the University of Chicago Law School. I spent many hours in its beautiful building that was designed by Eero Saarinen.
University of Chicago Law School
I chose Chicago because it was an excellent law school and because its Mechem Selection Committee awarded me a full-tuition Floyd Russell Mechem Prize Scholarship. The chair of the Committee was Justice Tom C. Clark, Associate Justice of the U.S. Supreme Court. The other Committee members were Associate Justice Roger Traynor of the California Supreme Court; Judge Sterry Waterman of the U.S. Second Circuit Court of Appeals; two past presidents of the American Bar Association; and two political science professors.
This scholarship was started in 1959 as one of the first three-year full-tuition, merit-based scholarships offered by any top-tier law school. It was financed through the School’s general fund and was designed to attract top candidates to Chicago and to free them from student debt in order to pursue their highest career aspirations. Floyd Mechem, by the way, in the early 20th century had been one of the School’s original professors and a leading expert on the law of sales, agency and corporations.[1]
Law school was a major change from my studies at the University of Oxford. There I had two tutorials a week during the academic terms by myself or with only one other student. My tutors gave me a question to address in an essay for the next tutorial along with suggested readings. The rest of the week was spent reading those articles and books and writing an essay and going to whatever lectures I chose. The examinations were at the end of my two years at Oxford.[2]
Law school at Chicago and almost all U.S. law schools, on the other hand, feature large classes with assigned pages in big law books for the next day and lectures and questioning of the students by the professors with exams at the end of the semester. This was a big adjustment for me, and I did not like the forced abandonment of the independence I had at Oxford. Another major change, especially in the first year, was encountering an entirely new vocabulary and system. I remember how long it took me, especially in the first year, to read anything because I always was consulting the big Black’s Law Dictionary.
Chicago’s first-year students had a legal writing component taught by Bigelow Fellows that provided a break from the large class routine. Learning how to write legal memos and briefs took practice, I discovered. The most exciting part of this course was preparing for, and observing, an oral argument before the Illinois Supreme Court when they visited the law school. The issue in the case, as I recall, concerned a Chicago ordinance regarding pornography, and our assignment was to write a judicial opinion deciding the case after reading the briefs and watching the oral argument. I enjoyed this assignment and replicated it when I taught a course about law to undergraduates at Grinnell College in 1982.[3]
I received excellent grades my first year and was invited to be on the staff of The University of Chicago Law Review my second year. I wrote two comments for the Review that in retrospect were not scintillating. One argued for recognition of a constitutional right to counsel in federal income tax investigations.[4] The other explored the distinction between repair and reconstruction of patented combination; the former was permissible; the latter, was not.[5] I still chuckle about a late 19th century case on this issue that held that replacing toilet paper in a patented toilet paper dispenser did not constitute reconstruction of the dispenser and, therefore, was not patent infringement.[6]
In any event, on the basis of my performance as a staff member on the Review, I was chosen to be one of its Managing Editors for my third year with special responsibility for articles. We had a special issue that year honoring the Law School’s Professor Malcolm Sharp, and I was in charge of soliciting and editing articles about him.
Edmund Wilson
One of the articles was by his friend and noted journalist and literary critic, Edmund Wilson, who spent time with Sharp during the summers in Talcottsville, New York. (I did not do any editing of his submission.) Wilson said,
“We saw a good deal of one another then, and were in the habit, at the end of the day, of meeting for conversation and drinks at either their house or mine. We enjoyed a pleasant leisure and peace, a freedom from the immediate pressures with which we elsewhere had to contend, as we sat in my ancient living-room, with its Boston and Salem rockers and its old-fashioned paintings and engravings, or looking from the Sharps’ back lawn, on a green and unmowed meadow, now soaked in the golden light of an orange and silver declining sun. . . . In our conversations on the back lawn of Talcottville, in the little trough of rural civilization that lies between the foothills of the Adirondacks and the wilderness of the Tug Hill plateau, we have covered, in our conversations, many aspects of that disturbed and disturbing world that was invisible from where we sat.”[7]
Wilson’s House
Wilson’s “Stone House” in Talcottville is now on the National Register of Historic Places. It was built in 1789 with limestone from the nearby Sugar River and was made famous in Wilson’s book Upstate. Wilson’s father bought it as a summer place, and it became a symbol for Wilson “of the kind of life he valued, . . . a life in which an intimate knowledge of the past provided stability in the present and guidance for the future; a life in which human beings had individuality, dignity and worth.”
I was in Professor Sharp’s contracts course my first year, and although often difficult to understand, he was warmly regarded by students as “good and wise and kind.” Others I fondly remember are Harry Kalven, Jr. for torts; Phil Kurland for constitutional law; David Currie for conflict of laws and federal jurisdiction; Walter Blum for taxation; Bernard Meltzer for evidence; Phil Neal for antitrust law; Francis Allen for criminal law; Jo Desha Lucas for civil procedure; Soia Menschikoff for sales and the Uniform Commercial Code; and Kenneth Dam for international law. The first-year property course was taught by Sheldon Tefft, who because he had been a Rhodes Scholar liked to call on me.
Univ. Chicago Law School Faculty 1966
Because of all the work required for the Review, my fellow staff members and then Editorial Board members and I spent a lot of time together, and they became my best friends. They were and are Bob Berger, Roland Brandel, David Brown, Lew Collens, George Ranney, Walt Robinson, Mike Shakman and David Tatel. All went on to distinguished legal careers.
On November 22, 1963, I was studying in the Law School Library and was shocked when someone told me that President Kennedy had been assassinated.
In June 1966 I received the Juris Doctor (J.D.) degree with Honors and the Order of the Coif for excellence in my studies.
In my last semester in 1966 I was unsuccessful in applying for a White House Fellowship and judicial clerkships with U.S. Supreme Court Chief Justice Earl Warren and Associate Justices Byron White and Potter Stewart.[8] Instead my wife and I moved to New York City where I joined the eminent Wall Street law firm of Cravath, Swaine & Moore.[9]
I am glad that I went to the University of Chicago Law School and became a lawyer.
[2] See Post: My Oxford University Years (Aug. 30, 2011); Post: Reading PPE at Oxford (June 6, 2011); Post: PPE Examinations at Oxford (June 10, 2011).
[3]See Post: A Sabbatical Leave from Lawyering (May 26, 2011).
[4] Comment, The Constitutional Right to Counsel in Tax Investigations, 32 U. Chi. L. Rev. 134 (1965).
[5] Comment, Repair and Reconstruction of Patented Combinations, 32 U. Chic. L. Rev. 353 (1965).
[6]Morgan Envelope Co. v. Albany Perforate d Wrapping Paper Co.,152 U.S. 425 (1894).
[7] Edmund Wilson, Conversing with Malcolm Sharp, 33 U. Chi. L. Rev. 198 (1966); Edmund Wilson House, http://www.livingplaces.com.
[8]See Post: Questioning President Lyndon Johnson (April 17, 2011); Post: The Roads Not Taken (April 27, 2011).
[9]See Post: Lawyering on Wall Street (April 14, 2011).
On April 30th at the University of Chicago Law School’s reunion week-end , two of its distinguished graduates, Geoffrey Stone and Robert Barnett, spoke about some interesting people with whom they have interacted: Barack Obama, Bill Clinton, Mattie Stepanek and five judges (Circuit Judges J. Skelly Wright and Minor Wisdom and U.S. Supreme Court Justices William Brennan, Byron White and Elena Kagan).
Geoffrey Stone
Geoffrey Stone
Geoffrey R. Stone is a 1971 graduate of the Law School, law clerk to U.S. Circuit Judge J. Skelly Wright (1971-72) and U.S. Supreme Court Justice William Brennan (1973). In 1973 he returned to the Law School to join its faculty where he has been ever since. He was Dean of the Law School (1987-93) and Provost of the University (1993-2002). He is now the Edward H. Levi Distinguished Service Professor at the Law School.[1]
Barack Obama
Stone recounted the story of the Law School’s recruitment of Barack Obama to join the faculty. In 1991 Michael McConnell, then a professor at the Law School and now at the Stanford Law School, told Professor Douglas Baird, who was the chairman of the faculty appointments committee at the time, about Obama, then an impressive editor at the Harvard Law Review who was doing an excellent job editing McConnell’s submission. Baird reached out to Obama and asked him about teaching, and Obama agreed to come for interviews at the Law School.[2]
Stone recalled that when he met Obama for the first time, Barack at age 26 already had a real political persona. “It was partly a kind of magnetism, partly a kind of grace, a sense of his own presence. You couldn’t mistake that you were with somebody who thought he was somebody—not in a bad way, but in a compelling way.” After Obama left, Stone’s secretary said,” He’s going to be governor of Illinois someday.”
The Law School then made an offer to Obama to be a full-time assistant professor. Obama refused the offer as he already had plans to write a book on voting rights. So Stone and Baird took a different approach and offered Obama a Law and Government Fellowship, which would allow him to work on his book and would perhaps lead him to develop an interest in teaching. Obama accepted the offer and began the fellowship in the fall of 1991. The book, instead of being about voting rights, was the autobiographical Dreams of My Father.
The next year Obama became a Lecturer (and a Senior Lecturer in 1996) and continued to teach at the Law School until he was elected to the U.S. Senate in 2004. Obama taught “Constitutional Law III: Equal Protection,” “Voting Rights and the Democratic Process,” and a seminar entitled “Current Issues in Racism and the Law.” After his election as President, glowing comments were made about his time at the Law School:
Stone said, “As a teacher and colleague, [Obama] was always curious, probing, open-minded, and rigorous.”
Professor Baird said, “From the open and robust debates [Obama] generated in every class to the many more informal displays of his tenacious mind and incisive wit, it was a great privilege to have had Barack Obama with us for twelve years.”
Davis Strauss, the Gerald Ratner Distinguished Service Professor of Law, offered that “at the Law School we have known for a long time . . . that Barack Obama is both amazingly gifted and a deeply human person.”
Elena Kagan
Stone also hired Elena Kagan for the Law School’s faculty (1991-95), and he joked that he has the distinction of being the only law school dean who hired two people who later became President of the U.S. and an Associate Justice of the U.S. Supreme Court.
Judge Wright and Justice Brennan
Stone said it was a great privilege to be a law clerk for both of these judges, who made him feel like he was a part of their families. Brennan was usually a very cheerful man to one and all in the Supreme Court building.
Robert Barnett
Robert Barnett
Robert B. Barnett is also a 1971 graduate of the University of Chicago Law School and a former law clerk for Circuit Judge Minor Wisdom (1971-72) and U.S. Supreme Court Justice Byron White (1972-73). Barnett is now a partner in the Washington, D.C. law firm of Williams and Connolly, LLP. He was ranked Number One on Washingtonian magazine’slistof“Washington’s Best Lawyers” and as one of “The 100 Most Influential Lawyers in America” by The National Law Journal. He represents major corporations in litigation matters, corporate work, contracts, crisis management, transactions, government relations, and media relations.[3]
Mr. Barnett is also one of the premier authors’ representatives in the world. His clients have included Barack Obama, Bill Clinton, George W. Bush, Hillary Rodham Clinton, Laura Bush, Bob Woodward, Lynne Cheney, Alan Greenspan, James Patterson, Katharine Graham, Daniel Silva, Tim Russert, Stephen White, Barbara Streisand, George Will, Art Buchwald, James Carville, Mary Matalin, William Bennett, Mary Higgins Clark, Cokie Roberts, several former U.S. Secretaries of State, numerous U.S. Senators, Tony Blair of the United Kingdom, Queen Noor of Jordan and Benazir Bhutto of Pakistan. He is also one of the leading representatives of many famous television news correspondents and producers. Mr. Barnett also provides legal counsel to former government officials in conjunction with their transitions to the private sector. [4]
His legal practice as an authors’ representative, he said, grew out of his helping Geraldine Ferraro prepare for the vice presidential candidates debate in 1984 when he played the role of George H.W. Bush in practice debates. After the Ronald Reagan-George H.W. Bush ticket defeated the Mondale-Ferraro team, she wrote a book about her political experiences and hired Barnett as her lawyer in negotiating a contract with the publisher. This was his first book publishing deal.[5]
Judge Minor Wisdom and Justice Byron White
Judge Wisdom, much like Judge Skelly Wright, was a warm human being and an excellent judge. Justice White, while also an excellent judge, was more formal and reserved. But not on the basketball court where White, a former professional football and basketball player, regularly challenged the law clerks in hard-fought games.
Bill Clinton
In response to a question about who were the most impressive people he had met and worked with, Barnett said there were two people.
The first was Bill Clinton. Clinton, he said, knew more people than anyone else. And Clinton knew more about more subjects and with greater depth than anyone he has ever met.
Mattie Stepanek
Mattie Stepanek
The second person named by Barnett was surprising to me in that he did not name one of the other famous people he had represented. Instead he said it was someone I had never heard of: Mattie (whose last name I could not catch). Barnett said that Mattie was a young poet who had appeared on the Oprah Winfrey television show, and Barnett had had the privilege of negotiating an excellent book deal for him. Mattie was an exceptionally gifted and brave person, Barnett said, adding that Mattie had died of a rare form of muscular dystrophy at age 13.
After I got home and googled “Barnett & Mattie & Oprah,” I discovered Mattie’s last name was Stepanek and learned more about him.[6] He had published six books of poetry and one book of essays, all of which had been on the New York Times‘ bestsellers lists. He also had become a peace advocate and motivational speaker and had testified on Capitol Hill on behalf of peace, people with disabilities and children with life-threatening conditions. Over 1,300 people attended his funeral, and former President Jimmy Carter delivered the eulogy. Carter said,
“We have known kings and queens, and we’ve know presidents and prime ministers, but the most extraordinary person whom I have ever known in my life is Mattie Stepanek. His life philosophy was “Remember to play after every storm” and his motto was: “Think Gently, Speak Gently, Live Gently.” He wanted to be remembered as “a poet, a peacemaker, and a philosopher who played.”
[4]Id.; Montgomery, Washington lawyer Bob Barnett is the force behind many political book deals, Wash. Post., March 7, 2010.
[5] Mr. Barnett has worked on eight national presidential campaigns, focusing on debate preparation for the Democratic candidates in 1976, 1980, 1984, 1988, 1992, 2000, 2004 and 2008. He played the role of George H.W. Bush in practice debates with Michael Dukakis in 1988, and practice-debated Bill Clinton more than 20 times during the 1992 campaign. In 2000, he played the role of Dick Cheney in practices with Joe Lieberman. In 2004, he played the role of Dick Cheney in practices with John Edwards. In 2000 and 2006, he assisted Hillary Rodham Clinton with her Senate debate preparations and helped prepare her for 23 presidential primary debates in 2008. Id.
