"Marshall has made his decision: now let him enforce it"

The attorneys for the missionaries sought to have this judgement enforced, but could not. General Jackson was President, and would do nothing of the sort. "Well: John Marshall has made his decision: now let him enforce it!" was his commentary on the matter. So the missionaries languished years in prison, and the Cherokees were finally (1838) driven into exile, in defiance of the mandate of our highest judicial tribunal.
Horace Greeley, The American Conflict (1864), 106.

Some high school civics textbooks report a Constitutional crisis in the wake of the U.S. Supreme Court decision Worcester v. Georgia (1832). The issue in the case was Georgia law requiring a license from the state and an oath of allegiance to the state constitution for non-Indians living and working among the Cherokee. The bulk of the Cherokee Nation fell within the state boundaries of Georgia; the state sought to exercise its sovereignty over these lands. Samuel Worcester and Elizur Butler, missionaries among the Cherokee, refused to comply with Georgia's laws, were tried and convicted, and appealed their case to the Supreme Court. Chief Justice Marshall wrote the decision, which affirmed the sovereignty of the Cherokee Nation.

The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of Congress.
Worcester v. Georgia 31 U.S. 515, at 520

Marshall's decision, along with one nine years earlier (Johnson v. McIntosh) and one the previous year (Cherokee Nation v. Georgia) form the foundation of Federal Indian Law. The so-called Marshall Trilogy of cases has been celebrated and condemned and been the subject of countless books.

For the past few decades, I have occasionally checked high school civics and American government texts for how much space they devote to notions of tribal sovereignty, or to other Indian matters. The fishing rights cases of the 1970s sometimes appear, and sometimes there is a little bit about the American Indian Movement. However, the notion of tribal governments as sovereigns rarely makes an appearance. When Worcester v. Georgia is mentioned at all, Greeley's fabrication is the most frequent point.

Patriots and Peoples began as a blog concerned with two US history texts, one unabashedly liberal, and the other equally partisan on the right. Both mention Worcester. Jackson's alleged words appear no where in the historical record prior to Horace Greeley's 1864 book, published 32 years after the event.

Larry Schweikart and Michael Allen reveal no evidence of skepticism of the quote's authenticity:

Marshall's Court stated that Georgia could not violate Cherokee land rights because those rights were protected under the jurisdiction of the federal government. Jackson muttered, "John Marshall has made his decision, now let him enforce it," and proceeded to ignore the Supreme Court's ruling.
A Patriot's History, 208

Howard Zinn does not pass on the quote, but makes reference to the putative Constitutional crisis:

John Marshall, for the majority, declared that the Georgia law on which Worcester was jailed violated the treaty with the Cherokees, which by the Constitution was binding on the states. He ordered Worcester freed. Georgia ignored him, and President Jackson refused to enforce the court order.
A People's History, 141

The conservative Schweikart and Allen and the liberal Zinn both cite as a leading source for these events the book Fathers and Children (1975) by Michael P. Rogin. It a strong testament to Rogin's scholarship that both skewed histories choose his work as the foundation for their claims.

Where Zinn differs from Schweikart and Allen becomes evident in what follows. Two paragraphs later in Zinn and the next sentence in Schweikart and Allen, we find contrasting interpretations of Jackson's views regarding states' rights, but neither highlights tribal sovereignty.

The same year Jackson was declaring states' rights for Georgia on the Cherokee question in 1832, he was attacking South Carolina's right to nullify a federal tariff.
A People's History, 141 

Ultimately, the Cherokee learned that having the highest court in the land, and even Congress, on their side meant little to a president who disregarded the rule of law and the sovereignty of the states when it suited him.
A Patriot's History, 208

I need to sit down with Rogin's book to examine whether he proceeds in either of these directions. I am also curious how he sources the claim. Greeley's own deployment of the alleged words 32 years after the event in question stretch the bounds of credibility. Questions drive me.

Guns and Violence in America

The problem of guns and violence in American society is a problem of overblown rhetoric compounded by willed ignorance. The National Rifle Association (NRA) and its supporters take a stand that is both principled and wrong in opposition to all reasonable discussion of the limits of the right to bear arms. Those who seek to regulate firearms, on the other hand, seek band aids without addressing root causes. (See "Why Root Causes Matter" for the views of another group of gun owners.)

More than 60% of gun deaths are suicides. Without accessible guns, many or even most of these people would find other means, albeit often less effective ones that fail. More than 60% of the remaining gun deaths are gang related. When physically mature teenagers kill one other over drug deals or turf, the anti-gunners add the numbers to their discussions of children being gunned down in their classrooms. (See "Gun Deaths in America".)

In 2000, I was a delegate to my County Democratic Convention. Because I liked Bill Bradley, I became more involved in the political process that year than normal. At the convention, there was a platform proposal to ban handguns that could accommodate more than six rounds “in the chamber”. I joined a small group of others who spent half an hour explaining that passing this proposal, which would push it on to the state convention, would embarrass us. It seeks to ban a gun that not only does not exist, but that cannot exist. Of course, we could have helped improve the language.* We weren’t interested in improving the proposal. We believed, or at least some of us did, that anti-gun planks in Democratic platforms hurt Democrats.

I wasn’t a gun owner then. I am now. In 2000, I still thought that I agreed with the NRA. Since becoming a gun owner a couple of years ago, however, my views have evolved and this issue has risen in importance to me. I now realize how much I disagree with the NRA, on the one hand, and, on the other hand, also how much more I oppose some of the same things the NRA is fighting against. (See "That's Not What They Meant" for part of my argument with one of the NRA's leaders.)

As a reluctant Democrat, I vote health care, the environment, the economy, and foreign policy over guns. On all of those issues, the GOP is nearly 100% wrong in my humble opinion. That doesn’t mean the Democrats are always right, only that they are better than Republicans. Even so, I’m growing increasingly frustrated with the priorities of Democrats who are more willing to seek a Constitutional Amendment eliminating the Electoral College than to find a way to win back the rural voters who once were the backbone of the party.

We need to have a real conversation in this nation about the root causes of violence. The United States is one of the most violent nations in the history of the world. Blaming the tools employed by the violent is no more useful than refusing to consider any improvements in safety training, safe storage, and limiting access to certain individuals.


*The author of the proposed plank meant magazine, but did not understand the difference. It might be argued that revolvers do accommodate multiple rounds in the chamber because each slot in the cylinder is essentially the chamber when it is lined up with the barrel. If so, this plank sought to ban revolvers holding more than six rounds in the cylinder, a very small percentage of firearms, but they do exist.

Erasing Jim Crow

What was Jim Crow?

With A Patriot's History of the United States (2004) as a sole reference, a high school or college student, faced with a question concerning Jim Crow, would be able to say very little. The student would be able to link Jim Crow to segregation in the South and to Southern Democrats who called themselves Redeemers. These Democrats "restored white supremacy" and "intimidated blacks with segregation" (355). The student would have read that Jim Crow laws "ensur[ed] the separation of blacks and whites in virtually every aspect of social life" (483). If the question was part of an exam of the sort common in college courses, the student would fare poorly. He or she would struggle to offer more than one single example of a Jim Crow law.

Drinking fountain on the county courthouse lawn, Halifax, North Carolina, April, 1938, John Vachon, photographer, Library of Congress Prints and Photographic Division, LC-DIG-fsa-8a03228

Although Larry Schweikart and Michael Allen claim their text has been assigned in more than three dozen colleges, the principal market for their book is homeschools. Schweikart is a frequent speaker at homeschool conventions, and their website offers teaching materials especially designed for homeschool parents.

Homeschooled students are those least likely to receive instruction from a professional historian. They rely more heavily upon assigned reading materials. These students, thus, must be highly motivated independent learners in order to gain the knowledge of specifics necessary to answer competently our hypothetical exam question.

Coincidentally, a law professor at Schweikart's own employer the University of Dayton, Vernellia R. Randall, put up a website that replicates a list of specific Jim Crow laws from several states. That website is no longer maintained, nor is original, and yet it appears higher in a Google search for Jim Crow than the original: Martin Luther King, Jr. National Historic Site. This National Park Service site cites laws that protected white nurses from serving black patients (Alabama), required separate waiting rooms in transportation facilities (Alabama), prohibited miscegenation (Florida), prohibited black barbers from cutting the hair of white women (Georgia), and many dozens of others. The National Park Service list emphasizes that Jim Crow laws were not an exclusively Southern practice, although the vast majority of the examples are from the deep South.

Homeschool students who learn to use Google will be prepared much better than those who rely on A Patriot's History.

Although readers of A Patriot's History struggle to offer examples of Jim Crow laws without additional research, they can trace connections that are central to the American story as Schweikart and Allen present it. Not only was Jim Crow the work of Southern Democrats, but their northern Progressive colleagues found other ways to segregate the races: "Progressives used IQ tests to segregate education and keep the races apart" (483). Schweikart and Allen then offer a brief discussion of the landmark Supreme Court case, Plessy v. Ferguson (1896). Their discussion of the case offers the sole example of a Southern Jim Crow law: a Louisiana state law segregating railroad cars.

The authors of A Patriot's History mention in passing that white Progressives combined with the Black Niagara Movement to create the National Association for the Advancement of Colored People (NAACP). But, this information is sandwiched between mention of  Plessy v. Ferguson as the federal government contributing to Progressives' separation of white and black education, on the one hand, and activities that created segregated neighborhoods in New York, on the other. The Southern system of white supremacy and enforced segregation is mentioned, but not discussed in detail. Reading A Patriot's History, one almost gets the impression that segregation was more significant north of the Mason-Dixon line than it was in Georgia, Alabama, and Mississippi. That impression produces a distorted understanding of the American past, one that begins to erase Jim Crow from our collective memory.

Sunday Morning Whiskey Run

For the first time since before Prohibition, it is legal in Washington state to purchase a bottle of liquor on Sunday. Not only have the blue laws passed into history, the state liquor stores were closed permanently on 31 May 2012. Since Prohibition, Washington had limited liquor sales to state-run and contract liquor stores. The state managed distribution and set prices. In 2011, voters passed Initiative 1183, ending the old system. I-1183 was authored and heavily financed by Costco and to a lesser extent by Trader Joe's.

The effects of I-1183 have revived the debates from last fall. Consumers rushed to grocery stores Friday morning to buy liquor with their eggs and milk, the news media covered the shopping spree, and the shock of new prices--mostly higher, some vastly so--have stimulated conversation. Before Prohibition, access to alcohol was limited by a variety of measures in states and municipalities. Drug stores were a principal outlet in many locales, for spirits have been medicine since they were first discovered in the ancient human past. There's now something poetic and rooted in history that even in Washington state, I can walk into Walgreens at 6:00am on a  Sunday morning to buy a bottle of Jack Daniels.

Dry Fly Distilling, Washington state's first post-Prohibition distillery, has more than doubled the retail outlets stocking its product in its home state. They have labored hard the past half-year stepping up production in preparation. Project V Single Silo Vodka made from the wheat on a single eastern Washington family farm is now available in Spokane for the first time. That increase in quality product availability should be a principle consequence of free markets. But, I-1183 offered something somewhat different from a true free market, something far more in line with the traditions of American capitalism.

Unfortunately, but predictably, news coverage of the changes resemble press releases from retailers more than any sort of investigative journalism. Prices that would have shamed gangsters during Prohibition are visible in plain sight on store shelves, but almost entirely absent from newspapers.

I-1183 is a mixture of long deferred blessings and unmitigated curses, some of which are covered in the news, and more of which are found in the comments.

An Everett, Washington news story offers several errors beginning with a lead sentence that reveals the authors do not understand the term "blue laws." "A Spirited Start to Liquor Sales" 2 June 2012, HeraldNet.

Never pour the glass that full

One of this article's howlers: "Reasons for the prices lie in the rules of Initiative 1183." Several retailers and fellow customers were repeating that mantra as I shopped yesterday. "Taxes raised the prices," is another version. But, that story falls short of explaining why a fifth of Blanton's was $55 including taxes last week, and now sells for $65 before the 20.5% Liquor Sales Tax and the $2.83 Liter Tax ($3.77 per liter). The highest round numbers explaining the Initiative noted a 27% tax, and that somehow accounts for a 68% price increase? I don't think so.

Many articles banter about the figures that prices are 10-30% higher, while Costco claims that its prices are 5% lower. The goat cheese that I buy at Costco costs almost exactly what I pay at Fred Meyer with the slight difference that I buy six times the quantity at Costco for that price. When a Costco price is 5% below a norm, the membership fee is not really worth the cost. But, the old state liquor store prices (long lamented as higher than prices in many other states) are no longer the norm. Much higher prices are. For the limited selection available at Costco, they will have the best price.

A Reuters story, "Liquor Sticker Shock Stirs Up Washington State Drinkers," repeats this strange and inaccurate 10-30% figure. Much of the rest of the article, however, shows more evidence of historical perspective and journalistic inquiry than is available elsewhere.

The most heavily circulated article seems to be "Retailers, Customers Welcome Wash Booze Sales," by Shannon Dininny and Elaine Thompson (link is to Bloomberg Businessweek). I read this article in the Seattle Times, and then ran into dozens more looking for something with a little better balanced coverage. There's not much wrong with what the article says, but most of the story is absent.

The Seattle Times offers a feeble effort to measure the price differences in "Help Us Measure How Liquor Prices Have Changed." The newspaper offers a list of old state prices and a field where readers can fill in new prices. But, their selection is limited to top-selling products, which quite naturally are the ones most likely to go down in price. One reader pointed out the foolishness. Many others listed their prices not in the database, but in the comments. There, one finds documentation of the 30-75% price increases on whiskey manufactured outside Lynchburg, Tennessee.

Suffering a late-season flu this past week, I was not among the customers who rushed the stores on Friday. Feeling better, a bit, on Saturday, I had an urge to explore the new world of liquor retail sales. I was delightfully surprised to find Blanton's Bourbon on the shelf at the Fred Meyer three blocks from my home. This small store does not stock non-sparkling wine that exceeds $26 per bottle in price, and only exceeded $25 when they recently added King Estate 2010 Pinot Noir. Previously, L'Ecole No. 41 2008 Merlot was the most expensive bottle. The price of Blanton's, however, assures me that I will not find it there in September. I've bought the Pinot and several bottles of the Merlot. I will not be buying the Blanton's unless I find it on close-out discount that brings it down to the old liquor store prices. I'll be going to Post Falls, Idaho to buy Kentucky bourbon.

It was Blanton's that turned me on to bourbon when I was in graduate school, transforming my drinking pattern from youthful drunkenness to adult cultivation of taste. It was a dinner at an academic conference at L'Ecole that turned me on to Washington Merlot. It's nice to see both at Freddies. The difference in price structure is another story. That's where the journalists should be looking. So far, they do not seem to see past the press releases put out by industry propagandists (I am not referring to the manufacturing industry).

To Establish Justice

We the people of the United States, in order to form a more perfect union, establish justice, ...
Preamble, United States Constitution

I might have become an attorney. During my junior year of college I attended the prelaw meetings, consumed advice concerning preparation for law school, digested information from representatives of law schools that visited my college to discuss legal careers, took steps to prepare for the LSAT. Moral qualms put an end to this activity.

Two Political Science courses--Constitutional Law (PolS 300) and Civil Liberties (PolS 402)--cultivated my interest in the Bill of Rights, my commitment to equal justice under law, and some minimal comfort with legalese. The entire sequence of U.S. history courses that I packed under my belt broadened my understanding of the ongoing struggle to bring American realities in line with American ideals. President Reagan, who assumed command during my sophomore year, may have echoed John Winthrop's appropriation of a metaphor from the Sermon on the Mount to describe the U.S. nation as a "city upon a hill," but the light, it seemed to me, was directed into people's eyes more so than upon the path toward justice. Embarking upon a massive program of consuming U.S. history texts while watching the President serve up the imaginary food of Peter Pan's banquets proved to be a recipe for indigestion.

The Bill of Rights was under attack. American liberties struggled against the rhetoric of freedom. American values were the daily fare. More and more, however, the meat and potatoes that tasted so good appeared to be full of unnatural additives. They added flavor and aided digestion, but evidence began coming to light that cancer would be the long-term consequence of such a diet.

How should I earn my slice of the American pie? Defending guilty criminals seemed to be the means of keeping civil liberties off the butcher's block. Cultivating the raw truth that revealed how history books had been cooked appealed more fully to my sense of moral fiber. My stomach ached less when I contemplated prosecuting those that lied about the past than when I contemplated protecting those that might be guilty from a rush to judgment on the basis of inadequate or tainted evidence. I remained committed to my youthful quest to become a history teacher. I chose history over law, and in graduate school the history of Federal Indian law pulled me back to a steady diet of legalese.