Garrett Epps and Democracy Reborn II

Let me begin with a description of what Epps does well in this book. In short, he skillfully unwinds and then rewinds every complex theme in American political/legal life between Dec. 1865 and the Summer of 1866 so that we see how they are interrelated and play off each other. Let me list ten of those themes he treats: (1) the adoption of the 13th Amendment in Dec. 1865; (2) the debate over whether the 13th was "enough" to deal with the legal status of the ex-slaves or whether there might be needed a "14th" Amendment; (3) the increasingly arrogant, martyr-like actions of President Andrew Johnson in this period; (4) the way Sen. Charles Sumner's apparently moral stand was, at many points, driven by practical political considerations--to maintain his MA Senate seat; (5) the interrelationship of the Civil Rights Act of 1866, the Black Codes in the South in 1865-66 and the 13th Amendment; (6) the failure of the 1866 reauthorization of the Freedman's Bureau Bill--through Johnson's veto; (7) the "three stages" of the 14th Amendment as considered by the Joint Committee on Reconstruction; (8) the awareness of how the CRA of 1866 differed dramatically from the 14th Amendment--and the confused debate over not simply the status of African-Americans in post-Civil War America but how to read the original constitution; (9) his brilliant description of Robert Dale Owen, the wealthy socialist/reformer from England who in early Spring 1866 came up with the language which formed the basis of what would eventually become the 14th Amendment; and (10) his presentation of how the issue of ending slavery and its incidents drove the most radical reform in constitutional interpretation in our history to that time. Indeed, an argument could be made that it has been the presence of American Blacks in our society which has done more to help this country realize the promise, meaning and shortfalls of its existence than any other single factor.

Along the way to doing this, Epps regales us with picture-clear snapshots of various events of the period, such as the Feb. 22, 1866 "serendade" address of Andrew Johnson to an assembled throng just after his veto of the Freedman's Bill had been upheld (138-141). I will devote an essay to the language of this fatal (for his political career) speech of Johnson. Epps' description of the dignity, commitments and reactions of Frederick Douglass to Andrew Johnson are worth the price of the book itself (141ff.). I also loved his description of an "eyes-wide-open" Walt Whitman, perhaps the most skilled American in our history at descrying the "pulse" of America, as he labored as a clerk in the federal Attorney General's office and took in all around him. Thus, at many points Epps' books breaks out of being a legal history and aspires for broader recognition as a definitive treatment or mirror of American life in this period of our history--a period more confusing even than 1968. It is a book longing for epochal status in describing one of the crucial constitutional moments of our history. I think he gets about 3/4 of the way there. His shortcoming, like that of most law professors, is that he is "math challenged." Too bad that all the king's horses and men (he lists more than 50 people who helped him on the book) couldn't catch these mistakes.

Taking it By the Numbers

I never realized how terrified most law students, lawyers and law professors were of numbers until I took up law teaching for three years (2003-06). I had been practicing law as a litigation attorney in a firm in Portland when my alma mater, Willamette University College of Law, called and asked me to teach a course on Jurisprudence. Fine, a course on Jurisprudence. But they seemed to like me, and then, before I knew it, I was teaching 3/4 time at the law school, guiding "third-year" papers, and entering into the world of legal academia. One of the things I learned early in my experience teaching insurance and sales law (where some calculations were occasionally required), was that about 90% of students "froze" when I started doing rapid calculations in my head and on the board [My family's "math" bent was so deeply inculcated in me as a child that I often fear that I cannot see the world in any other way than in "percentages" of this or that]. Just as Woody Allen famously said in Annie Hall that people that can't "do" end up teaching, and those who can't teach "teach gym," so I realized that those who can't do math become lawyers. The generalization sweeps, but it cleans up most of the room. Here are some more problematic numbers in Epps.

1. One of the most memorable pre-War events in the US Senate was the "caning" of Sen. Charles Sumner. A few days after delivering a South-baiting speech entitled "The Crime Against Kansas," in which he humiliated a certain Southern Senator (Andrew Butler of SC) , Sumner was attacked while sitting at his Senate desk by Butler's cousin, US Rep. Preston Brooks (SC) and beaten senseless by his gutta-percha cane. It took Sumner three years to recover from his injuries. This act, more than anything else, illustrated the nation's inevitable slide toward War. But Epps has his dates confused (p. 69). He has Butler's attack on Sumner on the right day--May 22, 1856, but then he gives the date of Sumner's offending speech at May 29-30, 1856. Pretty prescient of Butler, don't you think, to attack a week before the speech? Actually, Sumner gave the speech on May 19-20, 1856. Details.

2. Not every error, admittedly, regards a date. When describing the redoutable Representative John A. Bingham (R-OH), he describes him as a 'hardshell' Presbyterian, motivated in his statesmanship as much by his faith as by practical political considerations. Indeed, Bingham was an early graduate of Franklin College, originally founded as Alma Institute (1818), later becoming Alma College (1825) and then Franklin College. Epps says that Franklin College (OH) was founded in 1826. Well, the story, as just indicated, was more complex, but he can be forgiven that. He mentions that the "hardshell" Presbyterian denominations that gave birth to tiny Franklin were the "Associate" and "Associate Reform" (p. 97). He has it almost right. He probably (or, more likely, his NY editor), thinking of the reality of "Reform Judaism" in our world today, assumed that anything else with "Reform" in it must be "Reform X" but it ain't so. It was the "Associate Reformed" church, and the name meant something to those people. They were heirs of the Covenanters and Seceders in 17th cent. Scotland, and were wary of the "big" Presbyterian Church. Their American history is difficult to understand, and I applaud Epps for the courage of wading into it enough deeply enough to get it wrong.

Much quicker now. Bingham's prominent African-American roomate at Franklin was the future Rev. Titus Basfield, not Titus Brasfield (98). On p. 96 he informs us that Bingham was 52 in Jan. 1865. Wrong. He was born in Jan. 1815, so he would have been just 50. Reverdy Johnson, the most prominent Democrat on the Committee on Reconstruction, was not 70 in 1865 (p. 99); he was 69. Finally, in a most egregious mistake in the middle of his wonderful treatment of Robert Dale Owen, he says: "arriving in the New World for the first time in 1848, the twenty-three-year-old Owen was so taken with the impudent vigor of the NY waterfront..." (p. 188). Only thing is, that Owen was born in 1801, which was 24 years before Epps says he was born (pretty neat trick, maybe another one of those long births). Epps then goes on to say that he formed a liason with Fanny Wright, born "five" years before him, in 1795. Well, even if he had given the right day for Owen's birth, he would have been wrong here. But, as with most of his dates, off by a year. As Maxwell Smart said, "Missed by THAT much."

Let's turn to the important thing--the evolution of the 14th Amendment in the Committee on Reconstruction.

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