American Government Lecture Twelve
Twelfth Lecture – Trials and Abortion
Instructor, Andy Schlafly
Outline of Lecture:
IV. Public Policy
As our course draws to a close, ponder which are the most influential aspects of American policy making. Is it the presidency? The courts? Congress? Is all politics local, as some say? Think of where you could make the biggest difference. Would that be to work on national, local, legal, scientific, business, or educational issues?
This lecture surveys an influential aspect of American policy often ignored by our history books: trials. Also, our last lecture left for this time one of the most controversial and influential issues in American politics. That is abortion.
Our course has been about "government", with emphasis on federal laws and officials. Most people imagine the President, or perhaps Congress and the Senate, when they think of "American Government." Increasingly, the public might also consider the Supreme Court.
But do those institutions really resolve the most important issues? Often they prefer to duck the difficult matters. Politicians avoid divisive topics as much as possible, for example. The Supreme Court refuses to hear more than 95% of the cases presented to it. Even when it does hear a case, it almost never allows live testimony by witnesses.
Neither the Supreme Court, nor the President, nor Congress ever sentence anyone to death. They never enter a monetary judgment against anyone either. They never send anyone to jail. Only the Senate can remove a high federal official from office, and only upon 2/3rd vote. It rarely does.
A trial is necessary to do any of these things, typically a trial by jury. The most important issues in American law and history were resolved by trials.
I have compiled my own list of the ten most influential trials affecting American history:
1. William Penn (1670)
2. John Peter Zenger (1735)
3. Supreme Court Justice Samuel Chase (1804)
4. President Andrew Johnson (1868)
5. Boss Tweed (1873)
6. Sacco & Vanzetti (1921)
7. John Scopes (1925)
8. Colonel Billy Mitchell (1925)
9. Alger Hiss (1949)
10. President Bill Clinton (1999)
How many of those trials can you describe? All were trial by jury. For the impeachment trials, the jury was the entire U.S. Senate.
Both Thomas Jefferson and John Adams felt strongly that jury trials were the best defense against government. Thomas Jefferson considered “trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” John Adams said it was a jury’s “duty ... to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
Half of these important trials resulted in convictions; the other half resulted in acquittals. Here is my summary of the cases and their influence:
1. William Penn joined the Quakers in London, a religion disliked by the King. In 1670, Penn held a worship service and was arrested allegedly for disturbing the King’s peace At trial, the jurors heard testimony and the judge, as is still the custom, delivered jury instructions prior to its deliberations. The jury instructions included an order to find the Penn guilty.
But the jury refused to find Penn guilty. The judge angrily sent them back to continue deliberations. The jury returned again with its same verdict. The judge demended “a verdict that the court will accept, and you shall be locked up without meat, drink, fire, and tobacco....We will have a verdict by the help of God or you will starve for it.” The jury went out three more times, and returned with the same verdict each time. Then it refused to deliberate any more and the judge fined and imprisoned them. Penn was also fined and imprisoned on a scurrilous new charge invented at trial (for donning a hat in the courtroom).
On appeal, the jurors won their independence and were released from jail, though that did not help Penn.
The impact of the Penn trial has been enormous in two respects. First, it established freedom of religion, which Penn brought to America in founding Pennsylvania a decade later. Philadelphia became the most populous city in the colonies, and the location for drafting the Constitution.
The case also established the principle of “jury nullification,” whereby a jury’s decision is final and dispositive even if it rejects the law. Jury nullification has been used frequently, as in acquitting defendants accused of violating the Alien and Sedition Act and the Fugitive Slave Act.
2. The John Peter Zenger trial in 1735 is the most important case ever for newspapers. He was a publisher accused of the crime of harshly criticizing the colonial New York governor. Zenger’s defense was that he (and everyone else) has the right to print the truth. But the judge instructed the jury that the law did not recognize truth as a defense to the charges. Under the law at the time, the jury had no authority to acquit Zenger based on the truth of his statements.
The jury acquitted him anyway, thereby establishing freedom of the press. This was another important example of jury nullification.
3. By 1804, Jeffersonian Democratic-Republicans had control of Congress and set their sights on removing Federalist Supreme Court Justice Samuel Chase. The House of Representatives impeached him, and trial began with the Senate as the jury. His prosecutor was John Randolph, a partisan Jeffersonian who was distantly related to the Federalist Chief Justice John Marshall. 25 out of 34 Senators were Jeffersonians, so conviction and removal of the Federalist Chase for his political biases seemed likely.
But the effort failed. During the trial Randolph himself criticized Jefferson over a separate issue, the infamous Yazoo land fraud in Georgia, an issue that split Jeffersonians. Meanwhile, the case against Chase amounted to little more than some intemperate remarks he made while sitting as trial judge in a grand jury proceeding. The Senators were unimpressed, and at most 19/34 voted to convict on any of the charges, far short of the requisite 2/3rd.
The independence of the judiciary was established by this failed effort to remove a Supreme Court justice. However, the episode did encourage future justices not to engage directly in politics. No effort to impeach a Supreme Court justice has since made any progress.
4. President Andrew Johnson became the enemy of Radical Republicans who controlled Congress after the Civil War. President Johnson vetoed their legislation and even called their leaders “traitors”. Flush from winning the war, the likes of Republican Senators Thaddeus Stevens (PA) and Charles Sumner (MA) were not about to back down. Sumner, after all, was the fellow who once delivered an unconscionably disrespectful speech against elderly South Carolina Senator Andrew Butler, whereupon his outraged nephew Preston Brooks beat Sumner senseless with a cane.
When the House of Representatives impeached President Johnson by an overwhelming vote of 126 to 47, his ouster appeared to be a fait accompli. President Johnson had violated the Tenure in Office Act by dismissing his Secretary of War, and he had been intemperate in his name-calling of key senators. In addressing the jury of 54 senators, the prosecutor referred to President Johnson as an “accidental Chief” and “the elect of an assassin.” Witnesses testified for both the prosecution and the defense.
The prosecutors – called “managers” in impeachment trials – were confident of victory. Manager Thaddeus Stevens described President Johnson as the “wretched man, standing at bay, surrounded by a cordon of living men, each with the axe of an executioner uplifted for his just punishment.” Manager John Bingham brought the public galleries to their feet with his oratory: “May God forbid that the future historian shall record of this day's proceedings, that by reason of the failure of the legislative power of the people to triumph over the usurpations of an apostate President, the fabric of American empire fell and perished from the earth.”
2/3rd vote was necessary for conviction, and it all turned on Senator Edmund Ross of Kansas. Like real jurors, he spoke to no one during the proceedings and no one knew which was he was leaning. But he voted “not guilty,” and President Johnson was acquitted by one vote. The Radical Republicans were defeated, and never again enjoyed their unprecedented power.
5. William Marcy “Boss” Tweed began as a volunteer fireman in New York who worked his way to the top of the Democratic New York City political machine by 1863. He developed a corrupt system known as the “Tweed Ring” that faked leases, demanded kickbacks, performed unnecessary repairs and generated other phony expenses that cost New York City from $75 million to $200 million, a huge amount of money at the time. Famed cartoonist Thomas Nast, who created Uncle Sam and the elephant and donkey for the Republican and Democratic Parties, frequently attacked Tweed in his cartoons.
Eventually, Democratic federal prosecutor Samuel Tilden brought an indictment against Tweed, who was defended at trial by wealthy Republican Elihu Root in 1872. Tilden defeated Root and obtained the conviction, which catapulted Tilden to national prominence and became the Democratic nominee for president in 1876. He won the popular vote by a hefty 250,000, but the Republicans maneuvered to give Rutherford Hayes the White House based on a narrow lead in electoral college votes and a promise to end Reconstruction. Elihu Root, meanwhile, became an imperialist who later advocated entry by the United States into the League of Nations.
6. Sacco and Vanzetti were two anarchists from Italy. They had dodged the draft for World War I and were tried in 1921 for an afternoon robbery and murder of a shoe factory paymaster and a security guard as they carried a $16,000 payroll. Liberals in America decried trying individuals for their beliefs rather than their actions, and questions about the fairness of such a trial in Boston were raised from the beginning. They had skilled defense counsel in a famous labor attorney, but no Italians were included in the jury (none may have been in the jury pool). The defense counsel eliminated every businessman from the jury.
Witnesses for the prosecution were weak, with one testifying that the murderer spoke good English (the defendants did not). The prosecution only identified one bullet as being from Sacco’s gun, with no explanation as to the source of the other three bullets found at the scene. The stolen money was never found.
The defendants took the witness stand in their defense, but were subjected to relentless questioning about their political beliefs. Defense counsel repeatedly objected to such questions, but the judge overruled the objections and allowed them. There is widespread agreement that the judge never should have permitted so much questioning about political beliefs at the trial.
The jury returned a guilty verdict after more than a day deliberations. (At an earlier trial, a different jury had convicted them of a similar crime.) Faced with international protests against the prosecution, the Massachusetts governor appointed a commission to examine the trial and evidence. Throughout the 1920s the case was a flashpoint for protests. Finally, after the commission announced it agreed with the verdict, Sacco and Vanzetti were executed in 1927.
Vanzetti, who sported a distinctive handlebar mustache, maintained his innocence to the end. His final words to the judge before execution were these: “I would not wish to [a dog or snake] what I have had to suffer for things that I am not guilty of. But my conviction is that I have suffered for things that I am guilty of. I am suffering because I am a radical and indeed I am a radical; I have suffered because I was an Italian, and indeed I am an Italian; I have suffered more for my family and for my beloved than for myself; but I am so convinced to be right that if you could execute me two times, and if I could be reborn two other times, I would live again to do what I have done already.” Not entirely convincing, is it?
Among liberals, sympathy has continued for Sacco and Vanzetti ever since. Much is made of a confession by another death row inmate to having perpetrated the crime. But the judge found that unreliable. However, the judge had earlier criticized a jury for acquitting an anarchist, and seemed determined to do what he could to end anarchy in America.
Fifty years after the executions of Sacco and Vanzetti, in 1977, Massachusetts Democratic governor and future presidential candidate Michael Dukakis signed a resolution apologizing to them and establishing a day in honor of them. However, he did not pardon them, and many remain convinced of their guilt. Dukakis’ soft position on crime was a major reason for his defeat by the first President George Bush in 1988.
7. John Scopes was just a young teacher in Tennessee when he unwittingly became a test case for promoting evolution in American schools. Tennessee had a law against teaching human evolution, and the American Civil Liberties Union (ACLU) wanted to overturn it. It enlisted the top criminal attorney of the day, Clarence Darrow, to serve as Scopes attorney. As crafty as the day is long, he arrived in Tennessee armed with his bag of tricks.
William Jennings Bryan, the former presidential candidate and Secretary of State, had oratorical skills second to known. His “Cross of Gold” nomination acceptance speech in 1896 is considered one of the greatest political works in American history. He united the Populist and Democratic Parties then and laid the foundation for the takeover by the Democratic Party of American politics 36 years later.
After witnessing the horrors of World War I, Bryan became convinced that the teaching of evolution was leading society to ruination through war. “Survival of the fittest” provided an intellectual justification for the brutal killing of other nationalities and races. Bryan foresaw the ethnic cleansing that grew to its horrible culmination in the Holocaust.
Bryan defended the Tennessee law and its application to Scopes, with its mere $100 fine as the penalty for teaching evolution. Darrow agreed to take the witness stand in favor of teaching evolution if Bryan took the witness stand against it. Bryan then testified and performed well. So well, in fact, that Darrow reneged on his promise and forced Scopes to plead guilty to end the case. With that the trial ended, and Tennessee’s law remained in effect for another half century. To this day, Tennesee schools teach little evolution, and George W. Bush won the presidential election by carrying this home state of his opponent, Al Gore.
A famous liberal reporter at the trial, H.L. Mencken, published such one-sided articles that it would make today’s media blush. He excoriated Bryan at every possible turn, trying to make him look foolish. When Hollywood got into the act with a movie called “Inherit the Wind,” it imitated Mencken’s bias. Misinformed, many think Scopes and the evolutionists won the trial, but conservative rule in Tennessee today reflects the true outcome.
8. Colonel William “Billy” Mitchell dropped out of college in 1898 to serve in the Spanish-American War. Afterwards, America stayed out of wars until 1917, when Mitchell was touring Europe as an observer. By then he was considered too old to be trained on the new airplanes that were just being considered, but he learned to fly through private lessons of his own. When the United States entered World War I, Mitchell was the first American to fly over enemy lines. In 1918, he led a large bombing attack on St. Mihiel.
After the war he devoted his efforts to advocating greater use of aviation in the military, and criticizing those who resisted the change. In 1921 and 1923 he bombed old American and captured German battleships to demonstrate how easily air power could sink them, which he did. The embarrassed military brass sent him on a trip to Asia, but when Mitchell returned he predicted that Japan would ultimately attack us as it did at Pearl Harbor.
In September 1925 a military airship crashed and killed many on board. Mitchell published a diatribe harshly criticizing his superiors, even accusing them of treason in ignoring the need for good military aviation. He was swiftly brought before a military court, known as a court-martial, for insubordination. He was tried for seven weeks.
Military courts lack the protections guaranteed to civilians in ordinary courts. The jury could not reach a unanimous verdict, which in a federal criminal case would prevent conviction. One juror, widely thought to be the future General Douglas MacArthur, voted for acquittal. But he was outvoted and Mitchell was convicted and sentenced to a humiliating loss of rank and pay. President Coolidge intervened to restore half his pay, but Mitchell quit the military instead.
After Japan’s air power attacked and sunk our fleet at Pearl Harbor, Mitchell’s views were vindicated. By then he had passed away, but the military restored his rank and President Truman honored him with a medal.
9. Alger Hiss had denied he knew Whittaker Chambers, a former American communist who claimed that Hiss had been passing him State Department secrets for years. Obscure Congressman Richard Nixon was convinced that Hiss was lying and questioned him when he appeared before the House Un-American Activities Committee during the Cold War in 1948. Nixon intensely disliked Hiss, who came from the wealthy background of political connections that Nixon initially lacked. Nixon’s pursuit of Hiss catapulted Nixon’s career on a path that would eventually land him in the White House.
Both Hiss and Chambers testified before the House Committee, contradicting each other. One had to be lying. When Chambers ultimately produced typed documents of State Department information and claimed they came from Hiss, a federal prosecutor in Manhattan indicted Hiss for perjury.
But Hiss could afford the best attorney and had the most impressive array of character witnesses ever assembled. It included two U. S. Supreme Court justices, a former Solicitor General, a former Democratic presidential candidate (John W. Davis) and a future one (Adlai Stevenson). Hiss’ jury selection was also superb: the foreman proved to be sympathetic to the liberal and perhaps even communist movement in America.
Hiss did well on the witness stand in his defense, but his attorney probably erred in putting his wife on. His defense counsel was scathing in his attack on the prosecution’s star witness, Chambers himself, who admitted that he worked for the communist cause in America.
The jury could not agree on a verdict, splitting with eight in favor of conviction and four against it. Despite testimony that the unlawfully leaked documents were typed on Hiss’ typewriter, the four were not convinced beyond reasonable doubt.
As is typical, the government then brought the case for retrial. Prosecutions do better the second time, learning from its mistakes. The judge allowed a broader range of questioning. New defense counsel was weaker, conceding that the leaked documents were typed by the typewriter found in Hiss’ possession, but disputing that he typed them. Inexplicably, Supreme Court Justice Frankfurter did not testify for Hiss in the second case.
The defense relied heavily on testimony by a expert witness who was a psychiatrist, who painted Chambers as a pathological liar. But the prosecutor destroyed the witness in one of the most famous cross-examinations in American legal history.
Hiss maintained his innocence until he died, despite the eventual release of secret Soviet files apparently identifying him as a spy. Perhaps Hiss felt he could not go back on his prior statements, or perhaps he remained true to communism in protecting the movement. The case helped define American politics for forty years, propelling Nixon to the Vice Presidency in 1952, Barry Goldwater to the Republican nomination for president in 1964, Nixon to the White House in 1968, and ultimately Ronald Reagan to the White House in 1980, where he awarded Chambers a posthumous Medal of Freedom.
10. President Clinton was riding his in the polls and ready to pick his successor for the White House by late 1998. His leadership enabled the Democratic Party to do surprisingly well in the mid-term elections, and President Clinton was seeking to leave a lasting legacy.
Then the House of Representatives impeached him for making false statements under oath, which is perjury, and trial was scheduled for the Senate in 1999. First Lady Hillary Clinton accused her opponents of being part of a “vast right-wing conspiracy” against her husband. The Democratic Senators all lined up behind President Clinton, promising to vote for acquittal.
Republicans enjoyed a majority in the Senate but lacked votes anywhere close to the requisite 2/3rd majority to convict. President Clinton was a lame-duck at that point anyway, and the real battle was over his ability to influence politics beyond his term.
The managers of the impeachment presented their case, but the Senate prevented them from calling key witnesses such as Clinton’s closest aids. The procedural rules hamstrung the trial and served to protect the president. Without the presentation of the full case, President Clinton easily survived the final vote.
But the victory was Pyrrhic. The Democratic presidential nominee in 2000, Al Gore, felt he had to distance himself from Clinton and that probably made the difference on Election Day. Since then, Clinton has had little success in campaigning for candidates, recently failing with Governor Gray Davis in California in the recall. Hillary Clinton, pollsters choice to run in 2004, apparently feels it is too soon to make an attempt. The political ramifications of the impeachment trial continue.
Abortion in America was established by federal judges, not by juries or by legislators or by other elected officials. The Supreme Court declared in 1973, in Roe v. Wade, that mothers could terminate the lives of their unborn children with few restrictions. Other court decisions expanded the right further, to the point where America is one of the mot permissive nations in the world for abortion.
Unborn children are in God’s image, and those hostile to God are going to be hostile to his likeness. There is also enormous money made off of abortion and its related pornography industry. Even the general media indirectly depend on abortion by relying on sexual images to sell movies, magazines, television shows and even websites. This combination of ideology, money and the media constitute a tremendous force to promote abortion in America.
However, a solid group of Americans remain opposed, based on principle, to abortion. Slowly but surely we are making strides against it. Much of abortion depends on lies and untruths, such as suppressing the fact that abortion causes breast cancer. Although only about 5% of voters based their votes solely on the pro-life issue, that 5% is perhaps the most principled voters in the country. It sways many elections and never gives up.
In many ways, the abortion issue is what has realigned politics in the United States. It has shifted the pro-life South from the Democratic column to the Republican one, despite the memories that linger from the Republicans destroying the South during and after the Civil War. George W. Bush won every southern state in 2000, and will do so again in 2004. The South is also giving Republicans an increasingly strong majority in the Senate.
IV. Public Policy
Some say the president has the most influence for one simple reason: he has the “bully pulpit.” That means he defines the national agenda simply by what he chooses to say. When the president preaches, everyone listens, according to this theory. Many often disagree with the president, but the issues and debate are nevertheless framed by the president. Do you agree?
To others, the president is just another bit player in a system that has grown far bigger than anyone can control. We now live in the “regulatory state,” where massive regulations govern most aspects of our lives. Inevitably government grows larger and the regulations become more complex. Under this theory, there is nothing the president or anyone else can do about it, except perhaps slow the growth a bit.
Still, much remains unregulated in American life. We do not have racial quotas in business, though there is affirmative action to encourage greater participation by minorities in institutions like colleges and large corporations. We do not have comparable worth by which the government would set wages for male and female-dominated occupations. We do not have the 14th Amendment applying to purely private activities, like the Boy Scouts. Struggles continue on both sides of these and other controversies. America remains by far the most free major country in the world.
Do you support “jury nullification”?
Which trial do you think was the most important in American history?