Does History Take Sides?
In a Guest Essay appearing in The New York Times, two self-described “Men of Ice Cream, Men of Principle” maintained that actions taken by the Board of Directors of the ice cream company they founded were “on the right side of history.” [1] The contention that history takes sides was quickly challenged:
History, of course, has no “right side.” History simply does what it likes and proceeds as it is. It has no morality and is wholly indifferent to human values of any kind. To claim otherwise is akin to claiming that there is some transcendent justice or injustice to a hurricane or an earthquake. The claim is, in other words, an absurdity; but it is a convenient absurdity, because it allows one to believe that one is not just right but validated by the metaphysical essence of the universe itself. One doesn’t know what to say about such an assertion, except for the fact that it is, of course, uproariously ludicrous. [2]
Someone else who was arguably not on the right side of history, or more precisely, on the wrong side of the law was former President Donald J. Trump in his legal battle with the previous Manhattan district attorney, Cyrus Vance. Vance’s office served a subpoena on Mazars USA, LLP, Trump’s personal accounting firm, for financial records relating to the President and his businesses. Trump, acting in his individual capacity, sued the district attorney and Mazars in Federal District Court to enjoin enforcement of the subpoena, claiming that a sitting president enjoys absolute immunity from state criminal process under Article II and the Supremacy Clause. [3] Trump further argued that forcing him to comply with the subpoena would distract him from his duties as President, undermine his status at home and abroad, and that allowing local prosecutors to subject Presidents to state criminal subpoenas would make them "easily identifiable target[s]" for harassment.
In a 7-2 decision written by Chief Justice John Roberts, the Supreme Court rejected these arguments. [4] In disputing the distraction argument, Roberts observed,
That argument, however, runs up against the 200 years of precedent establishing that Presidents, and their official communications, are subject to judicial process, [citing United States v. Burr, 25 F. Cas. 30 (1807)], even when the President is under investigation, [citing United States v. Nixon, 418 U. S. 683 (1974)].
21st-century readers may be familiar with the reference to former President Richard Nixon, who unsuccessfully sought to shield himself from a subpoena issued by the Watergate Special Prosecutor in a federal criminal proceeding seeking the tape recordings of his Oval Office meetings. [5] But Aaron Burr? He was not even a President.
Instead, Burr (1756-1836) served as the Third Vice-President of the United States (under President Thomas Jefferson) from 1801-1805. In this capacity, he served as President of the Senate. During the last year of his Vice-Presidency, Burr fatally killed Alexander Hamilton (the Secretary of the Treasury) in a duel outside Weehawken, New Jersey. Hamilton died the next day at the Greenwich Village home of his friend William Bayard, Jr. [6]
Close-up of Bayard-Condict Building. Its significance is not in its height but in its graceful façade, which substantially increased the glass window area in proportion to its solid wall, foreshadowing today’s curtain-of-glass high-rises. The building’s masonry wall can be seen in the rear of the circular openings to the right and left of the angelic figure. [7]
The enmity between America’s dual Founding Fathers, Burr, and Hamilton, arose from Burr’s replacement, in 1791, of Hamilton’s father-in-law, Philip Schuyler, as a Senator from New York, a bitter defeat for Schuyler. [8] Following Jefferson’s refusal to allow Burr to be his Vice-Presidential running mate in 1804, Burr sought the governorship in New York and lost. Burr blamed his electoral defeat on Hamilton. Even earlier, Hamilton helped swing the disputed 1800 presidential election in favor of Jefferson after both Jefferson and Burr tied each other with 73 electoral votes. [9] Efforts to prosecute Burr for Hamilton’s death were unsuccessful as Burr fled New Jersey. He ultimately returned to Washington, D.C., and completed his Vice-Presidential term. However, the killing of Hamilton ended Burr’s political career. Strangely, as a “lame-duck” Vice-President, he presided over the 1805 impeachment trial of Associate Supreme Court Justice Samuel Chase (1741-1811)who was appointed to the Supreme Court in 1796 by President George Washington. Commentators at the time of Chase’s impeachment trial noted the anomaly that usually, a judge arraigns a murderer. Here, the opposite was taking place. Chase, a signer of the Declaration of Independence, was acquitted of all eight charges of impeachment levied against him by the House of Representatives and remained on the bench until his death. [10]
In Trump v. Vance, Chief Justice Roberts, reportedly a history buff, in novelistic fashion, picks up at length Burr’s odyssey four years after his duel with Hamilton:
In the summer of 1807, all eyes were on Richmond, Virginia. Aaron Burr, the former Vice President, was on trial for treason. Fallen from political grace after his fatal duel with Alexander Hamilton, and with a murder charge pending in New Jersey, Burr followed the path of many down-and-out Americans of his day—he headed West in search of new opportunity. But Burr was a man with outsized ambitions. Together with General James Wilkinson, the Governor of the Louisiana Territory, he hatched a plan to establish a new territory in Mexico, then controlled by Spain. Both men anticipated that war between the United States and Spain was imminent, and when it broke out they intended to invade Spanish territory at the head of a private army. But while Burr was rallying allies to his cause, tensions with Spain eased and rumors began to swirl that Burr was conspiring to detach States by the Allegheny Mountains from the Union. Wary of being exposed as the principal co-conspirator, Wilkinson took steps to ensure that any blame would fall on Burr. He sent a series of letters to President Jefferson accusing Burr of plotting to attack New Orleans and revolutionize the Louisiana Territory. [11]
To assist him in his defense of the charge of treason, Burr served Jefferson with a subpoena to obtain Wilkinson’s letters. The prosecution challenged Burr’s subpoena. In his capacity as a trial judge and not as the Chief Justice of the Supreme Court, Justice John Marshall was called on to rule on the propriety of the subpoena directed at Jefferson. As Roberts further relates in his hsitoric re-telling of Burr’s trial for treason:
Following four days of argument, Marshall announced his ruling to a packed chamber.
The President, Marshall declared, does not “stand exempt from the general provisions of the constitution” or, in particular, the Sixth Amendment’s guarantee that those accused have compulsory process for obtaining witnesses for their defense. At common law the “single reservation” to the duty to testify in response to a subpoena was “the case of the king,” whose “dignity” was seen as “incompatible” with appearing “under the process of the court.” But, as Marshall explained, a king is born to power and can “do no wrong.” The President, by contrast, is “of the people” and subject to the law.
However, there is a curious aspect of Roberts' decision in Trump v. Vance. U.S. v. Burr was not a case decided by the Supreme Court (and thus was of limited precedential value). Nevertheless, Roberts relied upon it as authoritative legal authority for the Supreme Court to hold that Trump, unlike the King of England, was not absolutely immune from being subpoenaed. The only novel feature of Trump v. Vance was that this was the first time the Supreme Court was called on to rule whether a subpoena issued by a state court (as opposed to a federal court) was entitled to the same compliance requirements as the Supreme Court had previously upheld for presidents over the past two hundred years, Notably, Roberts explained that presidents testifying in cases while in office was not unusual. Presidents Monroe, Grant, Ford, Carter, and Clinton had all done so.
In 1875, Grant testified for three hours in connection with the criminal prosecution of political appointees embroiled in a network of tax-avoiding whiskey distillers. The Whiskey Ring scandal and other incidents of corruption during the Grant presidency were contributing factors to the decision made two years later to withdraw federal troops from the former Confederate States under the “Compromise of 1877,” which ended Reconstruction and settled the 1876 election by Congress appointing Ohio Governor Rutherford Hayes as the nation’s 19th President, instead of New York Governor, Samuel J. Tilden by an electoral margin of 185-184.
In Fraud of the Century, Rutherford B. Hayes, Samuel Tilden, and the Stolen Election of 1876, historian and biographer Roy Morris, Jr, “tells the extraordinary story of how, in America’s centennial year, the presidency was stolen, the Civil War was almost reignited, and Black Americans were consigned to nearly ninety years of legalized segregation in the South.” [12] Before and during the Civil War, there were calls to reach a grand compromise with the South. The explanation underneath the below Thomas Nast’s cartoon (appearing on the cover of the September 3, 1864 edition of Harper’s Weekly) depicts the grim outcome for the North if the compromise to end the Civil War proposed at the Democratic Party convention held in Chicago in the summer of 1864 was adopted:
“Nast powerfully combats the defeatism that pervaded the Union during the summer of 1864, when Lincoln himself expected to be defeated for reelection. A tattered American flag hangs upside down in a signal of distress because northern cities are devastated. Columbia, symbolizing the nation, weeps as a disabled Union veteran’s handshake with a Confederate officer dissolves into an abject surrender. The triumphant Confederate’s foot treads on a Union soldier’s grave and breaks the northern sword and northern power. In the South, its flag resplendent in victory despite the crimes listed in its folds. [13] An African American Union veteran and his family are reshackled in slavery. The title of the work refers to the recent Democratic presidential nominating convention, which had promulgated a platform pronouncing the war a failure, criticized emancipation, and advocated a cease-fire and negotiations with the Confederacy.” [14]
* * * * *
Underlying the Supreme Court’s decision in Trump v. Vance was a legal principle announced by Lord Chancellor Hardwick almost three centuries earlier in 1742 in an English parliamentary debate:
In our judicial system, “the public has a right to every man’s evidence.” [15] Since the earliest days of the Republic, “every man” has included the President of the United States. [16]
In plain English (no pun intended), the Supreme Court ratified a fundamental principle of our democracy – that no man, including the President of the United States, is above the law and in this case, could likely have to disclose the records sought by Vance. [17] As Bob Dylan observed in It's Alright, Ma (I'm Only Bleeding), one of his most heralded songs:
But even the president of the United States
Sometimes must have to stand naked [18]
* * * * *
America’s 27th President, William Howard Taft (who visited Ardsley on November 16, 1912) and, like Donald Trump, served as President for only one term (i.e., 1909-1913), appointed five Supreme Court Justices. In 1921, he was appointed to the position he preferred, as the 10th Chief Justice of the Supreme Court, which he held until his death in 1930. Taft is the first of only two Presidents buried in Arlington National Cemetery (the other is John F. Kennedy). Taft’s grave marker in Arlington was designed by James Earle Fraser (1875-1953), the noted American sculptor of the two marble statues beside the steps of the monumental entrance to the Supreme Court’s building.
Ardsley streets named for U.S. Presidents are Taft, Lincoln, and McKinley, all Republicans. Both Lincoln and McKinley were assassinated. In 1968, a proposal was made by Ardsley Democrats to rename Ashford Park as “Kennedy Park,” likely for both JFK and his brother Bobby, the 42-year old junior Senator from New York who was shot and killed on June 5, 1968, at the Ambassador Hotel in Los Angeles while running for President. [19]
Fraser’s Guardian of the Law marble sculpture in the front of the Supreme Court building facing the U.S. Capitol (image taken by the author in December 2021).
The equestrian statue of President Theodore Roosevelt that stood in front of the American Museum of Natural History at Central Park West and 79th Street in Manhattan was also designed by Fraser in 1939 and installed the following year. [20]
It was removed last month after decades of protest that it “symbolized the painful legacy of museums upholding images of colonialism and racism in their exhibitions” and will be relocated 1,750 miles away to the new Theodore Roosevelt Presidential Library in Medora, N.D. [21] Dr. Mark Auslander, the former Director of the Michigan State University Museum, keenly observed in a paper submitted in connection with a Late-Breaking Roundtable Session at the American Anthropological Association’s 2017 annual meeting on the removal of monuments entitled “Putting Then In Museums? Reimagining the Path Forward,” that the effort to move controversial monuments is often motivated by the hope of putting these disturbing objects “back to sleep.” [22]
* * * * *
In August 2017, three days after a deadly white nationalist rally in Charlottesville, Virginia, arising out of the removal of a statue of Confederate General Robert E. Lee, then-President Trump tweeted: “Sad to see the history and culture of our great country being ripped apart with the removal of our beautiful statues and monuments.”
While history may not take sides, Twitter does. In the aftermath of the January 6, 2021, attack on the U.S. Capitol, Twitter, on January 8, 2021, permanently suspended President Trump’s Twitter accounts. Trump’s final tweet before his suspension was, “To all of those who have asked, I will not be going to the Inauguration on January 20th.”
Ironically, President Trump’s ambiguous reaction to the “Unite the Right” rally in Charlottesville and his shocking statement that there were “very fine people on both sides,” inspired current President Joseph Biden's successful run for the White House.
Yet, the belief that history has human-like qualities is still with us. In “The Hill We Climb,” Amanda Gorman’s triumphant poem delivered at Biden’s inauguration in the aftermath of January 6, drew on this tradition:
We've seen a force that would shatter our nation rather than share it,
Would destroy our country if it meant delaying democracy.
And this effort very nearly succeeded.
But while democracy can be periodically delayed,
It can never be permanently defeated.
In this truth, in this faith we trust.
For while we have our eyes on the future,
History has its eyes on us.
Appropriate for Presidents’ Day, the last line of Gormon’s poem echoes “History Has Its Eyes on You,” a song in the Boadway show “Hamilton” sung by George Washington.
Endnotes
[1] “We’re Ben and Jerry.” July 28, 2021
[2] https://www.algemeiner.com/2021/07/29/ben-jerry-and-the-hilarity-of-privilege/ German Philosopher Karl Marx similarly observed, “History does nothing, it ‘possesses no immense wealth’, it ‘wages no battles’. It is man, real, living man who does all that, who possesses and fights; ‘history’ is not, as it were, a person apart, using man as a means to achieve its own aims; history is nothing but the activity of man pursuing his aims.” The Holy Family, Chapter 6 (1846) Yet while addressing Western ambassadors at a reception at the Polish embassy in Moscow on November 18, 1956, the Soviet Union’s leader Nikita Khrushchev famously (but fatuously) claimed, "About the capitalist states, it doesn't depend on you whether or not we exist. If you don't like us, don't accept our invitations, and don't invite us to come to see you. Whether you like it or not, history is on our side. We will bury you!" “Khrushchev Tirade Again Irks Envoys," The New York Times, November 19, 1956, p. 1.
[3] Paragraph 2 of Article VI of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution and federal law generally take precedence over state laws and even state constitutions. It prohibits states from interfering with the federal government's exercise of its constitutional powers and from assuming any functions exclusively entrusted to the federal government. Article 2 lays out the exclusive executive powers granted to the President which Trump maintained would be disrupted by having to respond to the subpoena issued by Vance.
[4] Trump v. Vance (July 9, 2020)
[5] As noted in a book review of Watergate, A New History (Avid Reader Press, 2022), Nixon, the 37th President, was “a man of deep contradictions: a law-and-order candidate who flouted the law.” (New York Times Book Review, February 02, 2022) p. 10 https://www.simonandschuster.com/books/Watergate/Garrett-M-Graff/9781982139162
[6] The Bayard-Condict building stands at 65-69 Bleecker Street, between Broadway and Lafayette Street, at the beginning of Crosby Street in the NoHo neighborhood in Manhattan. It was designated a New York City landmark in 1975 and a national landmark in 1976. The research report issued by the New York City Landmarks Commission notes the following: “The Bayards were one of New York City’s old and prestigious families with antecedents going back to Dutch Colonial days. Despite the illustrious family name, there were no Bayards financially involved in any part of the building project, and the use of the name for the building remains ambiguous. Nevertheless, its architectural significance is beyond debate. The Bayard-Condict Building is the most significant commercial building utilizing skyscraper structural techniques in New York City. Built in 1897-1899 on busy commercial Bleecker Street, the building provided a new and startling contrast to the classically inspired skyscrapers which were being constructed by New York City architects at that time. It is the only building designed by Louis Sullivan in New York. It is the only skyscraper of the period that frankly expresses its structural components in the manner of the Chicago School. New York City is indeed fortunate in retaining such an outstanding example of his mature work.” http://s-media.nyc.gov/agencies/lpc/lp/0882.pdf
[7] Historic American Buildings Survey, Creator, Louis H Sullivan, Lyndon P Smith, Charles T Wills, and Diana S Waite, Robinson, Cervin, photographer. Bayard-Condict Building, 65-69 Bleecker Street, New York County, NY, 1933. Documentation Compiled After. Photograph. https://www.loc.gov/item/ny0350/.
[8] The state legislatures appointed Senators until the U.S. Constitution was changed in 1913 by the 17th Amendment, which permitted the direct election of Senators.
[9] Jefferson was elected President on the 36th ballot in the House of Representatives.
[10] Chase remains the only Supreme Court Justice who faced impeachment. On April 15, 1970, then- Congressman Gerald Ford, the House of Representatives' minority leader, delivered a floor speech to his colleagues in the House of Representatives and demanded the body begin impeachment proceedings against Associate Supreme Court Justice William 0. Douglas. (116 Cong. Rec. 11, 912-19 (1970)). Four years later, then Vice-President Ford would ascend to the Presidency when President Nixon resigned after three Articles of Impeachment against him were approved by the House Judiciary Committee investigating the break-in at the Watergate Hotel in Washington, D.C.
[11] In a footnote, Roberts explains: “Wilkinson was secretly being paid by Spain for information and influence. In the wake of Burr’s trial, he was investigated by Congress and later court-martialed. But he was acquitted for want of evidence, and his duplicity was not confirmed until decades after his death, when Spanish archival material came to light.” Coincidentally, Richmond, Virginia, would serve as the capital of the Confederacy for almost the entire Civil War. https://virginiahistory.org/learn/why-richmond
[12] https://www.simonandschuster.com/books/Fraud-of-the-Century/Roy-Jr-Morris/9780743255523 Significantly, Tilden was the second presidential candidate to win the popular vote but lose the election (the list includes Andrew Jackson (1824), Grover Cleveland (1888), Al Gore (1988), and Hillary Clnton (2016)).
[13] “On the grave is a broken sword that reads "Northern Power." The Southern flag to the right of the print is inscribed with the word "Treason" and has a list of alleged Rebel atrocities in the war. The upside down union flag on the right has a list of the bloody battles of the war the Union had suffered through. The Democratic Party candidate running against Lincoln was George McClellan. The Chicago Platform, which McClellan was running on, was to end the war by compromising with the South.” http://www.sonofthesouth.net/Compromise_With_South_Nast.htm
[14] https://library.osu.edu/site/thomasnast/compromise-with-the-south/
[15] 12 Parliamentary History of England 693 (1812). This power of the state to obtain evidence, by compulsory process (i.e., by subpoena) if necessary, is the very foundation of every criminal prosecution. Of course, this state power is limited by various privileges such as the 5th Amendment right to avoid self-incrimination or assert the attorney-client privilege. President Trump unsuccessfully invoked executive privilege to avoid responding to the District Attorney's subpoena for his financial records in Vance.
[16] The Supreme Court’s decision did not leave the President without protections against subpoenas. He can still challenge subpoenas as any citizen could, and he can raise subpoena-specific constitutional challenges.
[17] In Chapter 14 of his Second Treatise on Government (1690), entitled “Of Prerogative,” Philosopher John Locke “explains the necessity of governments, whether a monarchy or republic, to have an individual executive with the ability to act on his own, sometimes outside or even against the laws created by the legislative branch. According to Locke, legislatures can be slow or too chaotic to make decisions effectively for the public good. On these occasions, it is up to the executive to deliver what the public calls for without interference from other government branches.” https://jackmillercenter.org/fci-resource/executive-branch/ In an interview with British television journalist David Frost in 1977, former President Nixon posited in response to Frost’s inquires about illegal efforts to monitor anti-war and countercultural activists, Nixon boldly asserted, “When the President does it, that means it is not illegal,” citing as precedent Lincoln’s activities during the Civil War: “Lincoln said, and I think I can remember the quote almost exactly, he said, “Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation.” Now that’s the kind of action I’m referring to. Of course, in Lincoln’s case, it was the survival of the Union in war time, it’s the defense of the nation and, who knows, perhaps the survival of the Union.” Lincoln’s Example: Executive Power and the Survival of Constitutionalism Later in the interview, Nixon conceded he was not suggesting the President was above the law but that emergencies must allow the President to go beyond the
[18] "It's Alright, Ma (I'm Only Bleeding)" is a song written and performed by Bob Dylan and first released on his 1965 album Bringing It All Back Home. It is described by Dylan biographer Howard Sounes as a "grim masterpiece." The song features some of Dylan's most memorable lyrical images. Among the well-known lines sung in the song are "He not busy being born is busy dying," "Money doesn't talk, it swears," "Although the masters make the rules, for the wise men and the fools,'' and "But even the president of the United States sometimes must have to stand naked." https://en.wikipedia.org/
[19] Greenburgh Independent, November 27, 1968. On July 2, 1881, President Garfield was shot as he embarked on a train in Washington, D.C., as part of a trip to visit Cyrus Field (whose ancestral estate in England was the namesake for the Village of Ardsley) at his residence in Dobbs Ferry on the evening of the day he was shot. A gathering of villagers to wish Garfield a successful recovery held at the little Presbyterian church included Field and Gilded Age railroad magnate and Robber Baron Jay Gould. Sympathy from Dobbs Ferry, An Earnest Desire Expressed for the President’s Recovery, The New York Times, July 5, 1881. Garfield died 79 days later from his wounds. Chester Arthur was sworn in as President on September 20, 1881, in his apartment on Lexington Avenue in Manhattan, the first administration of the presidential oath of office in New York City since Washington was first inaugurated nearly a century earlier at Federal Hall in lower Manhattan in 1789.
[20] Roosevelt is depicted on horseback, flanked by a Native American man in a headdress and an African American man draped in cloth, revealing his well-muscled body. Roosevelt remains fully clothed, exposing only his face and hands to the elements, one hand hovering over his pistol. Roosevelt (1858-1919), then Vice-President, assumed the presidency after McKinley was assassinated in Buffalo, New York, on September 6, 1901, six months into his second term.
[21] https://www.nytimes.com/2022/01/19/arts/design/theodore-roosevelt-statue-natural-history-museum.html
[22] In Whose Honor? On Monuments, Public Spaces, Historical Narratives, and Memory. Gwendolyn W. Saul, Diana E. Marsh, Museum Anthropology, Vol 41, Issue 2, Fall 2018 (provided to the author courtesy of Gwendolyn W. Saul, Curator of Ethnology, New York State Museum). Mount Rushmore, which depicts 60-foot-tall images of Presidents Washington, Jefferson, Lincoln, and Theodore Roosevelt carved into a mountainside in the Black Hills of South Dakota, remains a flashpoint over Native American claims it was built on both stolen and sacred land. The Native American community is divided on whether to destroy the monument or preserve it as a way to educate tourists about the real history of the American West https://www.nationalgeographic.com/travel/article/the-strange-and-controversial-history-of-mount-rushmore
Copyright: Gary S. Rappaport (2/21/22)
