Review: The Inevitability of Tragedy: Henry Kissinger and His World By Barry Gewen

 How did Henry Kissinger go from being the man the Playboy Bunnies would most like to have for dinner to a man hated by both left and right; a man who became an issue in a presidential campaign forty years after he had left government.  Gewen answers that question in this intellectual biography.  It's fascinating.

Kissinger was fond of citing the following story:  When the nefarious Cardinal Richelieu died in 1642, Pope Urban VIII is said to have declared: “If there is a God, the Cardinal de Richelieu will have much to answer for. If not … well, he had a successful life.”  I have never been fond of Kissinger, considering some of his policies and actions to be wrong-headed, if not criminal.  That being said, Kissinger was the great realist and perhaps the most influential Secretary of State in the 20th century.  How he got there is the intriguing subject of this book.

Kissinger distrusted democracy, suggests the author, after witnessing the rise of Hitler through the democratic process. (The early section of the book details how quite precisely.) The lesson Kissinger learned from that is that democracy fails at thwarting tyranny and totalitarianism.  Free speech can co-exist in a non-democratic society. He had the choice of returning to Germany following WW II but having served in the Army and achieved his American citizenship, he had been thoroughly Americanized, even coming to appreciate those from the fly-over states as being a more accurate representative of American culture. He wrote in his memoirs, “Nowhere else is there to be found the same generosity of spirit and absence of malice, as in small-town America.”

Kissinger despised pieties, believing that, like Richelieu,  chaos can be a useful instrument of policy and furtherance of  goals for the nation-state. He ultimately lost his position in government by losing support of both the left and right. His mantra was simply that the end (order and stability) justified the means. National interest was paramount, and morality in its service was futile and counter-productive.

The author goes into some detail discussing the influence of Leo Strauss, Hans Morganthau and Hannah Arendt on the politics of Kissinger. All  were of German Jewish background. Arendt is best known for her seminal works on the origin of totalitarianism, a pertinent topic given that the 20th century gave rise to innumerable tyrannical isms: Communism, Nazism, Fascism, and now Islamism. All of them had seen the failure of democracy during and following the Weimar Republic and the democratic rise of Hitler.  This left all of them suspicious of democracy and populism in particular.  Each opposed quantification as a way of making decisions (the direct opposite of Robert McNamara.) Foreign policy and history have a subjective quality, and one needs to beware of idealism, marching into some place you don't understand even with the best intentions.

Kissinger’s role under Nixon was surprising, given Nixon’s constant belittling of Jews and overt anti-Semitism. So many in both parties feared Nixon’s irascible temper and general craziness, they saw Kissinger as a temperate restraint on Nixon. He was the ultimate realist, believing power should be used in the service of the nation, and he initially opposed MAD (Mutually Assured Destruction) arguing that the Russians would be emboldened by the policy as they could never believe the West would initiate its own destruction.  His preference was for tactical nuclear weapons, and it was important the enemy believed the U.S. would use them.  That was the only realistic self-defense strategy.

A very readable and intriguing book.

Packing the Court: Some Musings

 I am reading James MacGregor Burns'  Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court. 

 I cannot recommend this book highly enough. If you are worried about current trends in politics, this will calm you.  We’ve been there before. The battle between the Court, Executive, and Legislature began with Marshall’s court; unenumerated rights and processes were at the forefront of debates constantly in the early 19th century, the decisions in Marbury (judicial review) and McCullough (national bank) plus numerous others also illustrate the battle over national v. state rights; extreme partisanship; the division of the country by sectional and class  interests, east v. west, industrial and financial v. agricultural and rural; and not the least, the Electoral College and election of the President with the election of 1800, and 1824 (John Quincy Adin ams defeated Andrew Jackson in 1824 by garnering more votes in the House of Representatives, even though Jackson originally received more popular and electoral votes.) And so it goes, with only the personalities changing.  The issues have never been resolved.

The book’s title is perhaps misleading. When we think of "packing the court" FDR's attempt to add justices to the court immediately springs to mind, yet ever since Marshall's Marbury decision that shifted an enormous amount of power to the court with judicial review, presidents have used political cronyism to add their political adherents to the court. Some one-term presidents, like Trump, have been very fortunate to be able to change the balance of the court in their favor by adding numerous justices that favor their political view. Until Trump, Ronald Reagan had appointed the most justices. William Harrison, Andrew Johnson, Zachary Taylor and Jimmy Carter, all had none. Washington (obviously) and FDR each had eight, so FDR got to pack the court anyway, given his many terms in office.

I won't go on about the validity of Marshall's decision even though one would think that "originalists" would be appalled by judicial review as it was certainly unenumerated, but it does make one stop and pause to realize that unelected judges can have an enormous influence on the direction of the country for many years, an influence even contrary to those in elected office.

FDR was appalled by judicial review.  During a radio talk in 1937 he referred to Marbury v Madison.  The power to declare a law unconstitutional was nowhere in the Constitution, he remarked, and, in fact, Justice Bushrod Washngton almost admitted as much just a little later when he argued the Court should "presume in favor of [a law's] validity until its violation of the Constitution is proved beyond all reasonable doubt. "The Court", Roosevelt continued, " has beem acting not as a judicial body, but as a policy-making body."

I was surprised to learn that following the failure of the Jefferson administration to impeach Pickering and Chase in their effort to get rid of Federalist judges, Marshall was so terrified of the prospect of impeachment that he wrote a friend proposing to mollify the Republicans by giving Congress in concert with the president the right to overturn decisions of the Supreme Court.

The antagonism toward a court that is of opposite political bent probably began with Thomas Jefferson following the packing of the court with Federalists by John Adams. Jefferson wrote Spencer Roane (a vigorous opponent of Marshall’s nationalism and an advocate of slavery, who, ironically, came close to being chosen as Chief Justice in place of Marshall, an appointment that would have drastically changed the nature of the court in the United States):

The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal. I will explain myself by examples, which, having occurred while I was in office, are better known to me, and the principles which governed them.*

Ultimately, I think Joshua Braver has it right in his article on court-packing:

Whether court-packing continues to be a live political option will depend on the vagaries of politics. Unless dispelled, however, the common historical narrative will continue to lie like a half-buried loaded gun, ready to be unearthed whenever the Supreme Court threatens the agenda of a new or realigned political party. .... Rather than colonize and infiltrate the Court, Congress curbed it and forced it to retreat through targeted and reversible measures, such as jurisdiction-stripping. [my emphasis] That kind of retaliation against the Court is the “hallowed American political tradition.”

Today, liberal democracy is on the decline, and court-packing has helped

push it there. New times demand reformulations of old theories that encourage

resistance against courts. One response is a knee-jerk reaction that goes to the

opposite extreme and accepts judicial supremacy. But this hermetic sealing off

of politics from law would be just as much a break with American tradition as

court-packing. Going forward, the question is not how to shut down the fierce

and inevitable conflict between the elected branches and the Supreme Court,

but how to manage it. **

**Braver, Joshua. "Court-Packing: An American Tradition?" Boston College Law Review, vol. 61, no. 8, 24 Nov. 2020, pp. 2749-2808. Accessed 1 Nov. 2022. https://core.ac.uk/download/pdf/361263545.pdf 

*"Article 1, Section 8, Clause 18: Thomas Jefferson to Spencer Roane." Electronic Resources from the University of Chicago Press Books Division, press-pubs. http://press-pubs.uchicago.edu/founders/documents/a1_8_18s16.html

For more information on Spence Roane (whom I had never heard of) see https://en.wikipedia.org/wiki/Spencer_Roane

 

The Deserter and the General's Daughter by Nelson DeMille

The General's Daughter

"As a CID warrant officer, Brenner had to play many roles. "I was a cook and a chemical weapons officer, which, in the army, are the same thing." That sets the tone for this book.  I had seen the movie with John Travolta, who did a great job, and this is one of those rarities where the movie and book complement each other very well. The movie captures the spirit of the book.

It's rare that I give a novel 5 stars.  I usually reserve that many for important works of non-fiction.  I make an exception for this novel. Aside from Brenner's wise-cracking, always enjoyable, the book has an intriguing mystery, a thorough investigation, lots of suspects, and even a bit of romance. 

This is one of those books which some of the more puritanical among us will complain is unnecessarily graphic.  I disagree. The novel is about honor, disgrace, writing past wrongs, a whole panoply of emotional responses and how they affect us. The scenes are incredibly uncomfortable and necessarily so because they pull the reader into the moral quagmire faced by the participants. 

I listened to it as an audiobook read by Scott brick who is the perfect narrator for this title.

The Deserter

I worry when established writers take their protagonists out of the country.  Usually, I suspect it is because they want to be able to write off a trip to some country they've always had a hankering to visit so they do in order to collect local color for the book.  But Venezuela? Why would anyone want to go to a country on the verge of ruin and chaos -- at least that's the way it's described in this extended travelogue.

 Scott Brodie and Maggie Taylor, both CID officers, (think Paul Brenner and Cynthia Sunhill from the General's Daughter with whom they bear striking similarities in looks and speech) need to go undercover to Venezuela to bring back a Captain Kyle Mercer who deserted his unit and committed some heinous crimes in Afghanistan.  He has now been seen by a less than reliable witness in Venezuela in a brothel for underage girls in the slums of Caracas. Clearly, the Army has way, way too much money if it were to indulge in such a risky venture, kidnap (or kill) this guy Mercer.

 

I really admire many things about Venezuela, the foremost being the conductor Dudamel and the truly magnificent Youth orchestra and high school music programs. That is not the country of this book and I found the plot to be a mish-mash of plot holes. I did like the Paul Brenner-like banter of the thinly disguised Brodie.  Why invent a new character when you already had one on the books? (Perhaps because he wrote this with his son, Alex DeMille, another puzzler, the way to get his son a head start in the writier's market.)

 

I have read (or listened to) several DeMille and enjoyed the Brenner and Corey characters. I was disappointed in this one and certainly won't read the The Cuban Affair, which other readers have described as being similar in its travelogue nature. I enjoy reading the history and current affairs of other countries be they failed or successful; I also enjoy a good mystery/thriller/police procedural like the General's Daughter (5 stars); I do not enjoy one that succeeds at neither.

 

 

The Ninth Amendment v Substantive Due Process and rights.

 My Goodreads friend Alan Johnson, author of several very interesting books has been writing lately on the use of the Ninth Amendment as a better way to protect unenumerate rights, which, after all, is what the ninth is all about.

I quote from a passage he posted to Goodreads that I find particularly enlightening and look forward to a book I hope he writes.

During the last couple of days, I have been studying the Dobbs decision and planning an essay on it with the working title “Originalism Gone Wild: A Critical Analysis of Dobbs v. Jackson Women’s Health Organization (U.S. 2022).” The joint dissenting opinion of Justices Breyer, Sotomayor, and Kagan is one of the most brilliant and beautiful judicial opinions I have ever read. (I was a practicing lawyer for more than three decades, focusing especially on constitutional and public law litigation.) This dissenting opinion eviscerates originalism and offers a clear and compelling alternative mode of constitutional analysis. As did I in The Electoral College, 137–39, they rely, in part, on Chief Justice John Marshall’s analysis in McColloch v. Maryland, 17 U.S. 316 (1819). I will elaborate on such matters in my forthcoming paper, which I will post on academia.edu and link in the present Goodreads topic.

Dobbs and most of U.S. constitutional jurisprudence have studiously avoided the Ninth Amendment. I find it interesting that your proposed constitutional amendments replace the language of the Ninth Amendment with new substantive constitutional provisions. It is an interesting question whether it is advisable to delete the original language of the Ninth Amendment. In law school (1977), I wrote an 81-page paper titled “The Ninth Amendment as a Constitutional Reference of Individual Rights.” I will never publish that paper, because I now disagree with some of its positions and applications. However, the historical background of the Ninth Amendment is very interesting. In particular, it is highly questionable whether the Supreme Court’s substantive due process theory, based on the liberty component of the Fourteenth Amendment (or the liberty component of the Fifth Amendment Due Process Clause in cases involving federal legislation or executive action) is sound. And it is substantive due process—which Justice Scalia once called (not without reason) an “oxymoron”—that the Dobbs majority, especially Justice Thomas, wishes to cast into oblivion, together with constitutional protections regarding privacy, contraception, and same-sex marriage. A much sounder analysis, in my view, is to base these constitutional rights on the Ninth Amendment, as Madison and other of the Framers arguably intended. Your proposed constitutional amendments attempt to codify such substantive rights (clearly in order to avoid any future textual or originalist attack on them). That is all to the good. But the problem, as Madison recognized, is to avoid the legal maxim of expressio unius est exclusio alterius (“the expression of one is the exclusion of others”)—the principle of construction that, for many centuries, has been applied to statutory and contractual interpretation by British and U.S. courts. This is exactly the reason why Madison proposed the language that became the Ninth Amendment. I will develop these ideas further in my forthcoming paper as well as in the third book, Reason and Human Government, of my philosophical trilogy on free will, ethics, and political philosophy. The paper will be completed sometime in the next week or two. The book will require at least another year or two to prepare; it will cover many other things in addition to constitutional interpretation.

Alan E. Johnson, author of The Electoral College: Failures of Original Intent and Proposed Constitutional and Statutory Changes for Direct Popular Vote, 2nd Edition, The First American Founder: Roger Williams and Freedom of Conscience, and Reason and Human Ethics

 

"Give Me Liberty, or Give Me Death"

That phrase, attributed to Patrick Henry in a speech before the Second Virginia Convention, credits himwith swinging the delegates to supporting the revolution by providing troops. Too bad it only applied to white colonials.

Henry in his attack on ratification of the Constitution adopted a very different tone with regard to slaves who most definitely were to be given the choice of liberty or death (well, death maybe.)  Robin Einhorn examined the documents and records** of the history of the ratification in an enlightening article.* Henry was adamantly opposed to ratification on several grounds.  He thought it too democratic for one, as it would institute majority rule  at the national level. He also was afraid of what the national government could do to abolish slavery.  "They're coming to take your niggers," was his cry.

Even though he decried slavery as an evil, its abolition should never happen as it was so tied to the economics of the south. :"We ought to possess them in the manner we have inherited them from our ancestors, as their manumission is incompatible with the felicity of the country." The "felicity"of owning should not be subject to the will of the majority because not everyone understood the importance of owning slaves, the decision " should not be "in the hands of those who have no similarity of situation with us."

His attitude was interesting in that the Constitution's compromises heavily favored that "peculiar institution." The Fugitive slave clause was a gift to slave-holding states. Protection of property was paramount and the slave-holding states had a decided advantage in Congress thanks to the 3/5ths rule.

Einhorn proposes that even though many historians saw politics as encompassing both national and state ideals, the interests of southern slave-holding states differed radically from those where slavery was not present. A national government with majority rule could easily overwhelm the interests of slave-holding states.  It was much like the argument for maintaining and arming state militias in the 2nd Amendment. The southern states desperately feared slave uprisings and didn't trust a national army to protect them.  In time of war, white southern males could be called upon to serve and that would leave their plantations without supervision.

Taxation on the national level was also a fear. Henry argued a majoritarian national government could impose "ruinous" taxation on southern plantation leading to the necessity of manumitting or selling slaves to pay the taxes. Even though it was never levied, the $10 tax on imported slaves before 1808 when the trade could be prohibited, displayed the dangers of a national government. "Those feeble ten," he lamented, "cannot prevent the
passing the most oppressive tax law." (He meant the 10 representatives Virginia would have in Congress even with the 3/5ths Clause.  Henry was not impressed by the direct tax clause that apportioned tax based on population, which Federalists argued would prevent such a broad tax.)

"The oppression arising from taxation,"he explained,"is not from the amount but, from the mode." The direct tax clause governed only the amount of Virginia's total tax liability, "yet the proportion of Virginia being once fixed, might be laid on blacks and blacks only. For the mode of raising the proportion of each State being to be directed by Congress, they might make slaves the sole object to raise it of."

Einhorn has written a fascinating analysis of the economic arguments made by Henry and his supporters against ratification. His analysis also sheds light on Madison's famous piece in the Federalist Papers regarding factions and the advantages of a larger republic in protecting property. . In a large republic, a majority sharing any "passion or interest"can "be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression." In the United States, as Madison famously wrote in Federalist 51, society "will be broken into so many parts,interests and classes of citizens, that the rights of individuals or of the minority, will be in little danger from interested combinations of the majority."  Little did he know...

 *Society for Historians of the Early American Republic
"Patrick Henry's Case against the Constitution: The Structural Problem with Slavery"
Author(s): Robin L. Einhorn
Source: Journal of the Early Republic, Vol. 22, No. 4 (Winter, 2002), pp. 549-573
Published by: University of Pennsylvania Press on behalf of the Society for Historians of the
Early American Republic  http://www.jstor.org/stable/3124758

**The Documentary History of  the Ratification of the Constitution,(vols. 9-10,
Madison, WI, 1990, 1993)