Wednesday, January 28, 2009

General Grant now a Bulldog instead of a Saluki

It's enough to make a proud graduate of Southern Illinois University cry:

"CARBONDALE, Ill. (AP) - Mississippi might seem like an unlikely place to honor Ulysses S. Grant.

After all, the Union general's military victory at Vicksburg helped turn the tide of the Civil War against the state and the rest of Dixie.

But after a legal dispute with an Illinois school, Mississippi State University has become the new home of 90 file cabinets stuffed with hundreds of thousands of pages of documents and memorabilia about Grant and some of his descendants.

The collection - one of the biggest involving Grant - had been a source of pride for Southern Illinois University for more than four decades until a falling out between that Carbondale school and the group that owns the items, prompted by sexual harassment claims against the man who oversaw the collection."

In a related story, shopkeepers in Starkville, Mississippi have reported a sharp increase in sales of matches and lighter fluid.

Seriously, as somebody who was born and raised in the North but has lived his entire adult life in the South, let me use this to point out a big difference between Yanks and Rebels. Most northern people, reading this piece, will just shrug and forget about it.

But if anyone breathed a word of the Robert E. Lee papers leaving their home at Washington and Lee University for some school north of the Mason-Dixon Line, the resulting uproar would be heard from Richmond all the way to Vicksburg.

Wednesday, January 21, 2009

If at first you don't succeed...

President Barack Obama, to quell any Constitutional questions, has taken the oath of office a second time. Over at, Ed Morrissey writes:

"Now we can rest easy, with the specter of President Biden … or heaven forbid, President Pelosi … put to rest."

I presume he's just being facetious. After all, even if you could somehow argue that the flubbing of the oath prevented Obama from actually being the President, it does not follow that Biden would become President due to the error. The Twenty-fifth Amendment, Section 1, declares:

"In case of the removal of the President from office or of his death or resignation, the Vice President shall become President."

Obama didn't get removed from office, or die, or resign; these, the Constitution assures us, are the only instances in which Biden would get a promotion. The messed up exchange between Roberts and Obama wasn't in any of those categories; nobody got impeached, said "I quit," or went belly up.

Three notes on the inauguration and the Constitution

1. I'm reading Laurence Tribe's new book The Invisible Constitution in which the new President's former professor (see p. 201) argues that there are a number of principles and procedures that are not set into words in the great document, but that follow naturally, or even inevitably, from the text. I'll probably have more to say about this later, but for now I just want to note that it dawned on me yesterday that the specifics of the inauguration are a vivid example of this.

Here's why: Article II, Section 1 concludes with this sentence:

"Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'"

And where did Obama take the oath of office? Washington, D.C., of course. But notice there is nothing in the text of the Constitution to require him to have taken it there. What if he'd said, "Hey, I'm from Chicago, I'd like to take the oath there"? Nothing unconstitutional about that based on the written text. But I think we'd agree that it basically follows from having the national government operate out of Washington that the oaths of office need to be taken in Washington. I'm sure the people of the Windy City wouldn't have wanted millions of people clogging Grant Park anyway.

But say for a minute that Obama did raise his right hand on the shores of Lake Michigan. When should he do it? The Twentieth Amendment mandates that the term of the outgoing President ends at noon on January 20th, and thus the new presidency begins. But noon on January 20th where? It doesn't say. So if Obama took the oath of office in Chicago, would he have to do it at 11:00 local time so it would be noon in the capital? Or would he take it at noon Central Time? (Cue Alan Jackson and Jimmy Buffett singing "It's Five O'clock Somewhere.")

Isn't it great having the inauguration in the District so we don't have to worry about this stuff?

2. Okay, I'll admit it, I thought Obama flubbed on reciting the oath and didn't realize it was Chief Justice Roberts until the matter was brought up later. But I assumed the error was the President's for the logical reason that it never would occur to me that Roberts might try to administer it by memory, thereby running the risk of what happened actually happening.

Here's the bigger question. Even if the Chief Justice wants to try to recite his lines from memory, shouldn't there be some large, grand, leather bound, gilt-edged Constitution he holds in front of him for an occasion like this? A splendid Constitution that lives in the National Archives and is only taken out once every four years on January 20th? We always hear about what Bible the President chooses to take the oath, but in a county with a secular government, shouldn't it be as big a deal what Constitution is up there at the podium at the same time?

3. I didn't get nearly as much of a chuckle over the flubbed exchange between Roberts and Obama as I did over Aretha Franklin's hat. Okay, that has nothing to do with the Constitution, but I wanted to write it anyway.

Tuesday, January 20, 2009

What's unlikely in Vegas stays unlikely in Vegas

Just out of curiosity: if you'd gone to Las Vegas in 2004 and wanted to lay down a bet that within five years, in the same week we'd see an African-American inaugurated as President of the United States AND the Arizona Cardinals make it to the Super Bowl, what sort of odds do you suppose they'd give you?

Monday, January 19, 2009

Tonight we're gonna party like it's 2121

The Twentieth Amendment, ratified in 1933, declares: "The terms of the President and Vice-President shall end at noon on the 20th day of January." It's worth noting that it doesn't say "and then their successors shall be sworn in;" that's just a logical inference. In other words, the Constitution specifies that Bush leaves office tomorrow, but not that Obama checks in. But since we're at all times supposed to have a President, somebody better be there to ask Obama to put his hand on a Bible!

Exactly fifty years after the birth of the Twentieth Amendment, Public Law 98-144 added Dr. Martin Luther King, Jr.'s birthday to the list of federal holidays. Well, not necessarily his actual birthday, January 15th, but rather the third Monday in January. Those two dates, the 15th and the third Monday of the first month, coincide any year New Year's Day is on a Monday. That happened just two years ago.

What I really wanted to know, however, is how often do the Twentieth Amendment and Public Law 98-144 align? This year of course, the inauguration comes one day after the King birthday holiday, but since it was recognized in 1983, have the two days coincided?

Yes, they have, once. That was for Bill Clinton's second inauguration, in 1997. Courtesy of, I decided to look it up and see how often this phenomenon happens.

The answer is: not often. Inauguration Day will land on the third Monday of January next in 2025. After that, the two days match in 2053, 2081, and 2121.

I can hardly wait!

Thursday, January 15, 2009

Spending like a drunken sailor's commander-in-chief

"President Barack Obama's inauguration next week is set to be the most expensive ever, predicted to reach over $150m (£102m). This dwarfs the $42.3m spent on George Bush's inauguration in 2005 and the $33m spent on Bill Clinton's in 1993." -- Article in The Guardian.

Now if I was a partisan commentator, this would be the appropriate place for me to rail against a press that took Bush to task four years ago for all the loot spent on his inauguration, when the same press is largely silent about the immense sum for Obama's party. That's not my intention here, however.

Instead, I simply am taking the position that yes, Obama's inauguration is too costly. But so was Bush's, and so was Clinton's 33 million dollar bargain basement figure. I don't care if the President is Republican or Democrat. I don't care if when he or she gets inaugurated we're in a recession or a boom. I simply think that the money could be better spent.

And no, I'm not arguing against any sort of pomp celebrating America's milestones. In Book V, Chapter 1 of The Wealth of Nations, Adam Smith asserts that there is a need for expenditures that "support the dignity of the sovereign." As he put it:

"In an opulent and improved society, where all the different orders of people are growing every day more expensive in their houses, in their furniture, in their tables, in their dress, and in their equipage; it cannot well be expected that the sovereign alone should hold out against the fashion."

Smith, however, had his eighteenth century British royalty in mind. I think in America we should spend money to support the dignity of the sovereign, but I'd define "the sovereign" as not being one person, but rather as our whole democratic nation. Thus, if the terrorists on 9/11 had succeeded in destroying the U.S. Capitol, I'd have been in favor of spending whatever it took to rebuild it as the magnificent building it was, even though I know you could build a warehouse-type structure for a lot less, and Congress could deliberate and vote in such a shack just as well as they can behind a grand neoclassical edifice.

But it's just not sound policy in a republic, where the people rule, having such a fuss made over one cog of the government wheel being sworn into office. Obama will put his hand on the Bible at midday; what's with all the evening balls? Can't they just have a buffet luncheon?

Speaking of those formal galas, I got a real kick out of reading Lyric Winik's article about what a drag all those balls are; especially her advice, "Don’t wear a coat that you wouldn’t happily donate to charity. They don’t always come back." Winik's husband, Jay Winik, wrote April 1865: The Month That Saved America. Perhaps he should author another book entitled January 2009: The Month I Couldn't Save My Wife's Overcoat."

Pricey inaugurations just seem totally out of line with the qualities I choose to most admire in a president: simplicity and being down to earth. Franklin Delano Roosevelt, for instance, requested that no memorial be built to him larger than his desk. He probably wouldn't like the one that eventually got built.

But the best example I've ever seen of presidential modesty was something Thomas Jefferson did. Before he died, he helped design his own tomb. The nation's third president requested that the inscription on the stone read:

"Here was buried Thomas Jefferson, author of the Declaration of American Independence, of the Statute of Virginia for religious freedom, & father of the University of Virginia; because by these, as testimonials that I have lived, I wish most to be remembered."

Asked why he didn't want the inscription to include his service as Governor of Virginia, Secretary of State, ambassador to France, or President of the United States, Jefferson replied that those were thing the people did for him; he wanted to be remembered for what he did for the people (Nichols & Griswold, Thomas Jefferson: Landscape Architect,1978, p. 178).

The people did something for Barack Obama by electing him. It's not necessary to do something else for him by turning Washington, D.C. into one huge black tie affair next Tuesday. This is America; we have inaugurations, not coronations.

Tuesday, January 13, 2009

The farmer in the dell or in Philadelphia

You can, if you choose, divide interpretations U.S. Constitution's text into two categories. Category A is the people who say, "That's a pretty darned democratic document James Madison and the boys crafted, isn't it?" I think the best book to read in this regard is one I've recommended here before, Akhil Reed Amar's America's Constitution: A Biography (2005).

I recently finished reading Woody Holton's recent book Unruly Americans: and the Origins of the Constitution (2007). This is the best book I've read by somebody I'd place in category B--the people who say, "That's a pretty darned elitist document James Madison and the boys crafted, isn't it?"

I'm not going to give a full-length review of Holton's book here, but I do want to bring up a point it raises on the occupations of the Framers. On page 181 of Unruly Americans, Holton writes:

"It has frequently been noted that hardly any of the federal convention delegates tilled the soil for a living. Since nine in ten free Americans were farmers, the Framers were, demographically speaking, unrepresentative in the extreme."

Holton's book is extremely well-researched; the notes in back run 74 pages. And yet, for this declaration that the absence of farmers at the convention is "frequently noted," he inexplicably does not provide a citation. I wasn't aware of this non-agrarian aspect of the delegates backgrounds and I'd have welcomed an end note that said "see, for example" or that provided an actual count of how many of the delegates literally spread manure in their professional lives as well as sometimes figuratively in their political ones.

But the real reason I was confused is that this seems to run counter to something Forrest McDonald writes in Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985). From page 220:

"Twenty-seven of the delegates, including nine who doubled as lawyers, were farmers."

So by McDonald's count, exactly half of the fifty-five delegates were farmers, while Holton insists that "hardly any" of them were. Why the discrepancy?

To try to understand this, I focused at first on Holton's exact words: "tilled the soil for a living." To be sure, there's a difference between a full-time farmer who earns his daily bread from agriculture, and a gentleman farmer involved more heavily in another racket. If Holton was counting only those guys whose income was almost entirely through raising crops or livestock, and McDonald was tallying anybody who had a farm but was mainly something else like a lawyer, that would make sense.

But here's the rub: I'm not sure the distinctions we might draw today between a gentleman farmer and somebody who actually wears overalls six days a week is applicable to the world of 1787. In that regard, I call your attention to the 1992 book White House Landscapes: Horticultural Achievements of American Presidents by Barbara McEwan. The most famous man at the Constitutional Convention was George Washington. When you think of his occupation, what comes to your mind? Probably that he had a distinguished career as a military man and as a statesman. McEwan interprets his life differently:

"Like almost all his peers, George Washington was first and foremost a farmer, one of the most conscientious of any era. For most Americans in Washington's day, farming was a necessity. In Virginia, except for speculating in lands to the west (which Washington engaged in) and the slave trade (which he did not), money was difficult to acquire without being a tobacco planter." (p. 1).

The statement that nearly everybody was a farmer of some sort back then is basically repeated later in the chapter on Thomas Jefferson, McEwan declaring that "virtually everyone in those days... tilled the soil, although a rural man's day might also be spent as a lawyer, doctor, politician, merchant, or preacher." (p. 33). So we're right back to the question of farming as a primary occupation or a secondary one.

McEwan also quotes a letter written by James Madison, the other constitutional delegate who later served as President. Madison declined an invitation to visit a colleague, writing:

"I am obliged to keep in mind that I am a farmer and am willing to flatter myself that my farm will be the better for my presence." (p.53).

That at least does sound a bit like someone writing as a man who wants to be on his farm rather than as a man who must attend to his farm. Looked at this way, Madison wouldn't count as one who "tilled for a living" as Holton would have it. But Madison was still a farmer in a meaningful sense; by 1801 he owned three farms totaling five thousand acres (McEwan, p. 54).

Unlike the tomes by Holton and McDonald, White House Landscapes is not a scholarly book. McEwan's volume is intended for a popular audience and it cites very few sources. (You know you aren't reading a serious work of scholarship when the only reference given for the chapter on Theodore Roosevelt is his own autobiography.)

Nevertheless, by giving me about fifteen pages on Washington's agricultural pursuits, and another dozen on those of Madison, McEwan is at least providing me with some information on the significance of farming in the lives of a couple of men who signed the Constitution. While it wouldn't have been relevant for Holton to digress into that, I do wish he had at least offered citations for his assertion that "hardly any" of the Framers "tilled the soil for a living." Notes in a scholarly work are mostly for the benefit of those of us geeks who want to know more, and in this case I very much want to know more.

Saturday, January 10, 2009

Long, long ago, in a Big Ten Conference far, far away...

I see that yesterday President-elect Obama once again stated his belief that top division college football should adopt a playoff system.

This raises the question: if Obama is so big on major college football, why did he teach at the University of Chicago?

Wednesday, January 7, 2009

Getting goofy over Gupta

Michelle Malkin takes some exception to the reports that President-elect Obama will nominate CNN's Sanjay Gupta as Surgeon General. I have no comment on the appointment itself, other than to chuckle at this statement in the Washington Post article on the matter:

"(Gupta) has asked for a few days to figure out the financial and logistical details of moving his family from Atlanta to Washington but is expected to accept the offer."

Which raises the question: do we really want as Surgeon General someone who does something as unhealthy as leaving a good life here in the ATL for the stress of the District?

My real issue with Malkin's piece, however, is this tidbit:

"I think conservatives should ask, why do we even have a Surgeon General, and why is it worth our tax dollars, and how constitutional is it anyway?”

She asks three questions; as you might expect, I'm here to answer the last one. The position of Surgeon General is not mentioned in the Constitution. Nor is the Attorney General. Nor is the Secretary of State. Nor is anybody in the Executive branch other than the President himself and the Vice-President.

Here is the relevant portion of Article II, Section 2:

"(The President) shall ... nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. (Emphasis mine)."

So as long as the position of Surgeon General was established by law, it's constitutionally kosher.

What I find interesting about this piece of the Constitution is the invitation to Congress to let the President make appointments without their consent. Could they pass a law allowing the President to make a no-Congressional advice and consent pick for Secretary of State? Congress would probably never do such a thing, but it's an interesting hypothetical; is the position of Secretary of State an "inferior" officer? The knee jerk reaction is to say no; inferior must mean executive positions so low that Congress wouldn't care to review the selection. Then again, inferior could also reasonably be construed as meaning any position below the President and the VP. After all, there are about 1,700 judges on the various federal courts, and all but the nine on the Supreme Court are "inferior" according to Article III of the Constitution, which states:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

The important point here is that there are lots of executive positions, but only the top two are mentioned in the Constitution. And there are lots of federal courts, but only the top one is mentioned in the Constitution. But the Constitution grants Congress the power to establish all other courts and executive offices.

And this they have done. Here, history fans, is New Jersey Representative Elias Boudinot, on May 17, 1789, proposing that the new nation establish Departments of "Finance, War, and Foreign Affairs." Or as we now call them, the Departments of Treasury, Defense, and State.

Not until 1870 did we have a Surgeon General, or as he was first called, a "Supervising Surgeon." That makes sense, given how backwards medicine was in 1789 the best that could have been hoped for at that early date was probably a "Gentleman in Charge of Leeches" (see Chapter 1 of Faigman, Laboratory of Justice: The Supreme Court's 200-Year Struggle to Integrate Science and the Law, 2004, and this poem by William Wordsworth.)

Friday, January 2, 2009

Presidents in the petting zoo

"The most influential lawyer on the ACLU executive committee at the time of the Scopes trial, Arthur Garfield Hays, personified the direct action approach to the fight for civil liberties. A left-wing Park Avenue attorney named by his Republican father after a string of conservative presidents, Hays grew rich and bored representing major corporations and famous entertainers. ACLU activities served as his major diversion for three decades." (Larson, Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion, 1997, p. 68.)

Larson's book is great and deserved the Pulitzer Prize it won, but I think it's a bit inaccurate to say the boy was named for a "string" of presidents. He was named for just two; a surname comes with birth, so it was just kind of a happy accident Arthur Garfield Hays wound up with three chief executives in his full name instead of simply a pair.

The other day at the petting zoo, a family walked in with a little girl named Reagan. I don't have to ask moms and dads, of course, "What is your child's name?" Since parents constantly address their kids by their given names, I need only keep my ears open to hear comments like "Reagan, come here and look at the pigs!"

Well they left, and then in walked a family with a little boy, who, through the ears open method, I learned was named Grant.

Shortly after, another family entered with a girl named Bill of Rights. I'm kidding; her name was that of the guy who wrote it.

"Wow," I said to the mother, "Your daughter is Madison, we just had a Grant, and before that a Reagan! That's three families in a row with kids that have the same name as U.S. Presidents."

I couldn't make up what she said next. Pointing to another kid, she said, "Well, my little boy there is named Cleveland, so that's four kids with the same name as presidents." I was so startled that it didn't dawn on me to ask if she really named them both for presidents or if she just had an unusual fondness for Midwestern cities. (I presume, by the way, Reagan's parents were more likely to have named her after the President than King Lear's daughter. Please don't put in the comments that they are spelled differently; I know that.)

It all got me to thinking how many of our presidents had last names that you could conceivably give your sons or daughters as a first name. Here is a list of the chief executives; pouring over it I'm surprised how many of them had surnames that wouldn't be preposterous given names. I don't think you'll find too many people named Eisenhower, Bush, Buchanan, or Van Buren, and I wouldn't count Adams or Johnson for all the men named Adam or John.

Nevertheless, a few of the potential "presidential names for your baby" are reasonably common: Tyler, Arthur, and the aforementioned Grant and Madison. Is there any name from that list besides Madison that works for a girl? No doubt there is some non-traditional couple out there that named their baby girl Wilson, or Carter, or Ford, right? On the other hand, even if Article II, Section 1 of the Constitution is amended so that the President does not have to be a natural born citizen, a succesful ride to the White House by the Governor of California is not likely to lead to many girls (or boys) named Schwarzenegger.

Of course, even if you were named Schwarzenegger, it could be worse. The quote above is from a book on the Scopes Trial; the city attorney of Dayton, Tennessee who served as the prosecutor in the case was named "Sue Hicks." Sue was a man, named for his mother (Larson, p. 89). I've found no indication that he later got into a fight in a bar with his dad over his given name, the way the boy named Sue in the Johnny Cash song did.

On the other hand, Sue's brother was named Herbert, a name which in the connotation of presidents immediatley calls to mind Herbert Hoover. You think Sue Hicks would have been teased any less if his name was Hoover Hicks?