Thursday, July 30, 2015

Ranking the U.S. Presidents

                            Introduction (added 8/30/17)

Any attempt to rank the presidents is quite a daunting task. I have been engaged in this effort for more than twenty years, and it is time to think through the criteria and principles I use when doing so. Following are some of these criteria and principles.


1.  Only the presidencies are being ranked, not the entire lives.  There are a number of presidents whose post-presidency lives are wonderful examples of great service to the country, even though their presidencies weren't very good. One thinks in this regard of John Quincy Adams, William Howard Taft, Herbert Hoover, and Jimmy Carter. This great service is not taken into account here, as it is only their presidencies that are being examined.

Also, there are some who seek to downgrade certain presidents who exhibit some short of shortcoming in their private lives. For example, a number of early presidents happened to be slave-owners. I do not consider this in evaluating their presidencies. Similarly, a number of presidents have been unfaithful to their wives. This has nothing to do with the success or failure of their presidencies, and is ignored here.

2.  What is their record on war and peace issues?  The most important job given the president under our constitution is that of commander in chief of the armed forces. Everything else pales in comparison.The most important question, then, is how did each president do on war and peace issues?

3.  How did they handle tariff issues?  One does not have to be an economist, or any other kind of expert, to understand that high tariffs are bad for the country. All high tariffs do is start a trade war that hurts the economies of all the trading partners involved.

Even in the absence of any retaliation, high tariffs are a horrible idea. A recent example is the restrictions placed on the imports of Canadian lumber imposed by the Trump administration, in a misguided attempt to help the U.S. timber industry. The U.S. homebuilders association estimates that this has added $3,000 to the cost of every new home built in this country! So, in a foolish attempt to support a particular industry which apparently cannot compete on the world market, every single American consumer of housing is punished! A more wrongheaded economic policy is hard to imagine.

4.  Did they have a good "moral compass"?  History contains many examples in which presidents make bad decisions, even though they know they are bad, or at least should have known.  A great example is that of Herbert Hoover and his approval of the awful Smoot-Hawley Tariff, which raised tariffs to near-record levels.  Hoover knew good and well this was a horrible idea, and yet he approved it. 1,028 economists signed a petition pleading with Hoover to veto the bill.  Henry Ford visited the White House and pleaded with Hoover to veto the bill, which he called "an economic stupidity". But in the end, Hoover caved in to pressure from the right wing of his party and approved the bill, even though he himself had called it "vicious, extortionate, and obnoxious". He simply lost his moral compass.

Similarly, Lyndon Johnson woke up every morning during his last years in the White House, knowing that the Vietnam War was a huge mistake, but refusing to do anything about it, due to his vain desire not to be "the first president to lose a war". No moral compass whatsoever.

A president who had a great moral compass was Harry Truman. Truman went forward with his Marshall Plan to rebuild Europe after WW2, even though a survey showed that the idea was supported by only 14% of the U.S. populace!  What a wonderful contrast this is to politicians today, with their pandering to special interest groups, and their obsession with checking the polls before taking any action.

5.  Were they a "people person"?  It is axiomatic that one cannot be a good president without being a good politician, and one cannot be a good politician without genuinely enjoying being around other people. Benjamin Harrison had a particular problem in this regard, and might have been at least an average president had he possessed better people skills.

Hillary Clinton gave herself the kiss of death in the 2016 election when she announced that "I am not a natural politician like my husband or Barack Obama". She might as well have been telling people not to vote for her!

Hillary's problem was that she was just not a people person, at least that is how she came across. Rather, she was stiff, stilted, dull, boring, robotic, unspontaneous, uninspiring, lacking in passion, uncomfortable in her own skin, and unable to think on her feet. A worse candidate is hard to imagine. Here is a plea to the Democratic Party: give us a decent candidate in 2020, and we will work hard to get him (e.g., Cory Booker) or her (e.g., Elizabeth Warren) elected.

A good example of a people person is the politician CBS journalist Bob Schieffer describes in an anecdote in his memoir, "This Just In". He says that he and his wife were at a Washington party, and his wife came up to him and described meeting this guy. She said, "He's got it. When he shook my hand, he held it just an instant longer than a person normally would, and he held eye contact just a second longer than someone you meet usually does--not enough to consider it flirting, but just long enough to make you feel that at that moment, you're the most important person in the room." Schieffer then realized that when he'd met the guy, it had been much the same. And this amazing politician? It was Bill Clinton, who was at a party thrown by Washington socialite Pamela Harrington to introduce the Clintons to Washington, shortly before Clinton's 1993 inauguration as president.

6.  Were they a good leader?  The constitution provides for three separate but equal branches of government. However, it is obvious that only the president can speak for the country and provide true leadership for the country. Presidents who have failed to provide this leadership cannot be highly ranked.

While it is true that the power and influence of the presidency vis-a-vis Congress has increased over the years, as so ably documented in Schlesinger's "The Imperial Presidency, our Founders envisioned a strong and active president. The single executive was preferred to a three-person executive by seven states to three (see William Peters, A More Perfect Union: The Making of the United States Constitution, page 53). And in Federalist Paper 70, Hamilton writes that "energy in the executive is a leading character in the definition of good government". Indeed, the whole of Federalist Paper 70 is a powerful argument in favor of a strong executive. So, in ranking the presidents we will be looking at whether they displayed energy, or whether they sat back passively and let events unfold.

And let us not overlook the importance of the adjective "good". Leadership can be provided, but if that leadership takes the country in the wrong direction, then it is a flaw in the presidency, not an asset.

7.  Short and recent presidencies are not ranked.  Presidencies lasting less than two years due to the death of the president are not ranked, these being WH Harrison, Taylor, and Garfield. Also, the Trump presidency is too new to be ranked, and more time needs to pass to adequately assess the Obama presidency. Since Cleveland is counted twice (as 22nd and 24th), this means that only 39 presidencies get ranked, even though Trump is known as the 45th.

8.  Artificial categories are eliminated.  It is customary to put presidencies into five arbitrary categories, starting with "great" and ending with "failures". I have concluded that this is pointless, and I simply rank them from one to thirty-nine.

An example of the problem with the categorization is that it is impossible to put James Monroe into the "great" category, because he had no great crisis to face. I have no doubt he would have been equal to the task had he faced a crisis, and I don't feel he should be downgraded just because he didn't.

9.  The flawed C-SPAN methodology is explicitly rejected.  C-SPAN has three times ranked the presidents by asking historians to give a rating of from 1 to 10 on each of ten different leadership categories, and then simply adding up the results. The problem with this is that the final result is completely meaningless. You could be a convicted serial killer, and still score well on this mindless ranking, because the only category directly affected by your criminal past would be the "moral leadership" one.

By contrast, the Wall Street Journal and The Federalist Society have done a ranking using a much more sensible methodology. The used not only historians, but also political scientists and law professors. And they were careful to include a balanced mix of liberals and conservatives. The results, published in a book entitled "Presidential Leadership", are well worth studying.

10.  I refuse to be intimidated by the erroneous rankings of other historians. There are a number of rankings typically made by historians which I consider huge mistakes. I will explain my views as these presidents pop up in the following discussion.

11.  Did they understand that politics is a team sport?  To be any good at all a president must be able to work with others toward achieving common goals. One indication of this is how well a president worked with Congress. Any dummkopf can pick up a pen and sign a veto of a bill, but it takes real skill, effort, and perseverance to work with Congress to put together legislation that both sides can live with. Early presidents who wielded the veto pen instead of showing real leadership are Andrew Jackson, John Tyler, and Andrew Johnson.

In his book "The Imperial Presidency", historian Arthur M. Schlesinger, Jr. chronicles the increase in power of the presidency vis-a-vis Congress over the years. In particular, the presidencies of Lincoln, LBJ and Nixon saw the president going to war without Congressional authorization, clearly violating the constitution which says that only Congress can declare war. I will be discussing these three presidential transgressors in the sections on their respective presidencies.

                               *****                             *****

           The Rankings, 1-39 (Major revision completed 8/30/17)

1. George Washington (1789-1797). This one is a complete no-brainer.

2. Thomas Jefferson (1801-1809). Washington was above party politics, but his successor, John Adams, took the country deep into party politics to very dangerous levels. To John Adams and the Federalists, anybody who disagreed with them was a traitor and needed to be prosecuted as such under the Sedition Act. This led to many opposition newspapermen being jailed under the odious Sedition Act during the Adams administration.

Jefferson, to his great and everlasting credit, recognized the evil of this, and respected and understood the Constitution enough to understand that this was contrary to what America was all about. He freed all the imprisoned newspapermen, the Federalist party died out, and Jefferson's concept of our government prevailed. We owe him more thanks than we can ever give him. Just think what kind of country we might have ended up with had Adams beat Jefferson in 1800 and the Federalists remained in power. One shudders at the thought.

3. Teddy Roosevelt (1901-1909).  When Teddy Roosevelt asked his Attorney General whether congressional approval was necessary to legitimate the revolution he fomented in Panama to acquire land to build the Panama Canal, his AG, Philander Knox, replied, "Oh, Mr. President. Do not let so great an achievement suffer from any taint of legality."

And herein lies the problem with evaluating the presidency of TR.  He had many great accomplishments, but he tended to be overly aggressive in achieving those accomplishments. If you feel he didn't step over the line, then his #3 ranking is appropriate. If you feel he did step over the line, then he should drop down to #9, behind the 8 presidents who had no significant negatives.

TR broke up monopolies (called "trusts" then) which he felt were contrary to the public welfare. By so doing, he saved capitalism by using government to restrain capitalism's excesses.

He pushed through the Hepburn Act, giving the Interstate Commerce Commission greater powers to regulate the railroads.

The Meat Inspection Act and the Pure Food and Drug Act were needed laws giving the government needed authority to protect consumers from contaminated foods and drugs.

He vigorously pursued a conservationist agenda, protecting millions of acres of federal land from commercial exploitation.

When faced with a serious labor dispute, a strike by the United Mine Workers in 1902, TR, though not a union supporter, was astounded by the callous attitude of the mine owners, calling their attitude a "condition of wooden-headed obstinancy and stupidity...utterly unable to see the black storm impending." TR brokered a settlement between the two sides, which, while it did not give the union much of what the union wanted, did establish the principle that the union was at least entitled to a seat at the table.

Afterward, TR declared that it was "essential that organized capital and organized labor labor should thoroughly understand that the third party, the great public, had vital interests and overshadowing rights in such a crisis." He added, "I wish that capitalists would see that what I am advocating is really in the interest of property, for it will save it from the danger of revolution." TR's approach to the UMW strike seems tame by today's standards, but it was groundbreaking compared to the 19th-century presidents who typically used federal forces to break up labor disputes.

TR was also successful in mediating international disputes, these being the Russo-Japanese War in 1905, and the France/Germany dispute over Morocco in 1906.

4. James Monroe (1817-1825). Historians seem unable to rank any President as "great"unless there was some great crisis that he had to confront during his Presidency. Hence, they rank Monroe only 14th. However, a closer examination of his Presidency shows he was a great President. He tried hard to be President of all the country, appointing Cabinet members from each sector, and visiting each sector while in office. His Secretary of State, John Quincy Adams, served for the entire 8 years, and is widely regarded as the best Secretary of State ever. Similarly, his Vice-President, Daniel D. Tompkins, gets less recognition but as governor of New York was widely recognized as making important progressive reforms in such things as humane treatment of prisoners, and humane treatment of native Americans. In short, Monroe has no negatives and huge positives, and deserves a place among the great ones.

5. Rutherford B. Hayes (1877-1881). Hayes' guiding principle was that "He serves his party best who serves his country best", and he followed that principle throughout his presidency.  He promised upfront that he would only serve one term, because he felt that a sitting president shouldn't have to be worried about re-election.  And he fought the machine politicians and the spoils system, making significant progress toward civil service reform. His presidency was a welcome change from the scandal-ridden Grant administration.  And he helped unify the country by withdrawing the federal armed forces from the South. He was a highly respected elder statesman in retirement, which he used to work toward education reform and prison reform.  All in all, he was one of our very best presidents.

 6.  Martin Van Buren (1837-1841).  Van Buren was one of the ablest presidents in our history. He fought valiantly against the horrible depression, known as the Panic of 1837, which was caused by the disastrous economic policies of his predecessor, the awful Andrew Jackson. Despite all the turmoil caused by the economic crisis, Van Buren was still so popular that he was nominated without opposition by the Democratic Party in 1840. He lost the 1840 general election after a flukish campaign featuring the "log cabin myth" perpetrated by the lightweight Whig candidate, William Henry Harrison.

And then in 1844 he had a majority of the delegates to the Democratic National Convention pledged to him, but failed to secure the nomination only because the convention had adopted an absurd "two-thirds rule", requiring that the nominee get 2/3 of the votes. This ridiculous rule remained in place until FDR abolished it in 1936.

Van Buren would have had the 1844 nomination had he pandered to the Southern wing of the party by endorsing the annexation of Texas.  He refused to support annexation, because he knew that adding another slave state would only exacerbate the growing sectional tensions.  And so, the Van Buren report card consists of all "A's":  good moral compass, good people person, and an able administrator.

7. Bill Clinton (1993-2001). Another president who is likely to rise in the eyes of historians as time goes on. He took a deficit which had ballooned under the disastrous 12 years of Reagan and the first Bush, and turned it into a surplus by the time he left office. And he cut unemployment almost in half, lowering it by 46.6%.  He was a master politician, something essential in dealing with Congress and with the American people. Nobody did it better, except maybe for Martin Van Buren or James Monroe.

8.  Millard Fillmore (1850-1853).  Fillmore was the best of the pre-Civil War presidents. When he took over from Zachary Taylor, he inherited a country seething with sectional discord. Foremost was a boundary dispute between Texas and New Mexico, involving threats by Taylor to send in the army, and counter-threats by the Texas governor to call out his state militia. Working with his Secretary of State, the able Daniel Webster, and with the equally able Kentucky Senator Henry Clay, Fillmore expertly diffused the touchy situation without the use of troops.

Similarly, Fillmore worked hard with Clay to pass the Compromise of 1850, which settled (at least temporarily) the sectional tensions. Fillmore proceeded to enforce the act in an even-handed way, favoring neither north nor south. To Fillmore's credit is  the fact that he did not veto a single Congressional bill during his time in office.

Despite his executive ability, Fillmore was narrowly defeated in his bid for the Whig presidential nomination in 1852. He led on the first seven ballots over General Winfield Scott, but Daniel Webster had enough delegates to prevent either from getting the required majority. With Webster refusing to throw his support to Fillmore, Scott was finally nominated on the 53rd ballot.

Scott lost the 1852 election in a landslide, making Fillmore the last Whig president. As Eugene Roseboom explains in his wonderful book, "A History of Presidential Elections":  "Clay's compromise had saved the Union but had wrecked the party whose foundation he had laid 20 years before. It might have passed away in any case.  The growing moral sentiment against slavery, nurtured in Protestant churches, was stirring the middle classes, the backbone of Whiggery. The party was splitting apart in the North. In New England, there were Cotton and conscience Whigs; in New York, Woolly Heads and Silver Gays; in other places, "higher law" and "lower law" Whigs....Whiggery had gone to seed."

9.  Chester Alan Arthur (1881-1885).  Arthur's presidency was not a particularly distinguished one, but it has been said that he "has done well...by not doing anything bad".  The 1883 Pendleton Civil Service Act was a major piece of legislation which had been much needed for many years.  Arthur not only signed the Pendleton Act, but he vigorously implemented its provisions.

Arthur vetoed an anti-immigration act which would have outlawed immigration from China for 20 years, and he worked with Congress to fashion a less draconian act.  In addition, he modernized the navy which when he took office consisted of mostly obsolete ships from the Civil War era.

Because of his positive accomplishments, coupled with no blunders, Arthur's presidency gets the high ranking given it here.

10. Dwight Eisenhower (1953-1961).  Ike's stock has risen since he left office. I recall an analysis at that time that predicted that future historians would paint him negatively as a hands-off President who preferred to spend his time on the golf course rather than dealing with the affairs of state.

However, we now know that Ike was a firm and steady advocate for peace. He ended the Korean War. In 1955 he single-handedly prevented war in the Middle East, by pressuring British PM Anthony Eden to back away from military intervention over the Suez Canal dispute. It is well-known that when he left office he famously warned against the "military-industrial complex"; less well-known are other similar warnings he gave throughout his tenure as President.

In Bob Considine's memoirs, "It's All News to Me", he recalls a reporter asking Ike in 1951 whether he believed in "socialized medicine". Ike's response was that he didn't like that term, but he felt that "everyone should have free medical care". This reflects Ike's true sensibilities. What is striking is how far Republicanism today has strayed from Republicanism of the 1950's. Today the party has degenerated into "the party of no", and it is common for measures to have the support of, at best, a small handful of liberal Republicans and that's it.

But in the past it was not so, as demonstrated by an analysis of past votes on innovative social programs. In an article in a recent "Christian Science Monitor", Robert S. McElvaine gives the following analysis of Senate Republican votes (House numbers are similar): Social Security Act of 1935--76% for; Civil Rights Act of 1964, 80% for; Voting rights Act of 1967, a whopping 97% for!; Medicare in 1965, 43% for. Then we fast-forward to 1993, and find a grand total of zero Republicans voting for Clinton's budget, because it included a modest increase in the top marginal tax rate. Republicans predicted the tax increase would cause the economy to collapse. What resulted, instead, was the longest stretch of economic growth in US history, and eventually a budget surplus by the time Clinton left office. And of course we know none voted for Obama's health care reform bill. It has been said that Obama's positions are quite similar to those of Republicans in the '50's, and I think this is a fairly accurate appraisal.

Ike's administration is clouded by the CIA-sponsored coups in Iran in 1953, and in Guatemala in 1954.  These operations were just the tip of the iceberg. In his book on the history of the CIA, Tim Weiner counts 170 major covert operations undertaken by the CIA during Ike's 8 years in office. This, mind you, by an agency which was supposed to be gathering and analyzing intelligence, i.e., gathering and analyzing information. Thus, an era of meddling in the internal affairs of other sovereign countries was ushered in, an unfortunate practice which continues to this day.

11.  Grover Cleveland (1885-1889 and 1893-1897). Cleveland gets high marks for his honesty, courage, firmness and common sense. He was on the right side of the tariff issue; indeed, he devoted his entire 1887 State of the Union address to the tariff issue.

The main black mark against Cleveland lies in his brutal suppression of the Pullman Strike of 1894. He used federal troops to fight the strike, despite pleas from the Illinois governor, John Peter Altgeld, that his state militia could handle the problem.

Cleveland was a very conservative president, in an era when conservatism was the rule. However, the pro-business, anti-labor attitude of the day surely could have been softened in the face of such horrible labor conditions as existed then.  One wishes that 19th-century politicians would have had the moral sensibilities to strike a fairer balance between business and labor, but that movement didn't germinate until the 20th century. Despite this caveat, Cleveland must surely rank as one of our better presidents.

12.  William McKinley (1897-1901).  McKinley is a hard president to rank. He basically was a good president, but his acquisition of the Philippines is troubling, as it made the U.S. an imperialist country.

13.  Gerald Ford (1974-1977). Gerald Ford was "the calm after the storm", providing the steady leadership which the nation needed after the turbulence of the Nixon Watergate years. His pardon of Nixon was absolutely the right thing to do; the alternative would have been for the nation to wallow in the aftermath of Watergate for many years to come.

Unfortunately, the electorate didn't see it that way, and denied Ford election in his own right in 1976. This was a failure not of Ford, but of the electorate, which stupidly elected Nixon in a landslide in 1972, and then turned around less than two years later and decided Nixon was a crook who needed to be criminally prosecuted. This failure by the ignorant American electorate gave us four years of the inept Jimmy Carter, which in turn gave us eight years of Ronald Reagan.

14. John Quincy Adams (1825-1829).  Adams was one of the greatest public servants in our history, serving  in one capacity or another during ten different presidential administrations. His voluminous diary gives us great insights into public affairs during his long life. He is, in, fact my personal favorite among all the presidents.

And yet, Adams' presidency cannot be deemed a success.  The reasons for this are aptly summarized by Eugene Roseboom:  "For John Quincy Adams, the presidency brought only burdens and disappointments, bitterness and sleepless nights. His title was tarnished by charges of corruption, and he was acutely conscious of a lack of public confidence, which his morbid, suspicious, sensitive nature exaggerated because he had not been chosen by the electoral college...in Congress, every administration measure had to face a battery of political criticism."

Had Adams been more of a people person, he perhaps could have reached out to Congress and the public, and overcome the scurrilous "corrupt bargain" allegations thrown at him by Andrew Jackson. And he perhaps could have sold his program of internal improvements (what we would call "infrastructure" today). He had good ideas, but he was simply unable to sell them to a dubious Congress, and he made no attempt to go directly to the public.

15. Harry Truman (1945-1953). Truman left office with a horrendously low approval rating. However, the more we learn about him since then, the better he looks. David McCullough, in his fine biography of Truman, relates how Truman made a point to learn the first name of every member of the White House staff. He would regularly greet them by name and ask about their families. One guy said, with tears in his eyes, that he had worked at the White House for 40 years and no previous President had ever bothered to ask him for his name.

The Marshall Plan is instructive. Polls at the time showed that only 18% of the American people favored massive aid to rebuild Europe. Yet, Truman forged ahead, knowing it was the right thing to do. And history has proved him right in this. This is a welcome contrast to current approaches of taking actions based on the latest poll. (And it's not just politicians that are among the guilty; journalists, to their eternal discredit, play into this by constantly citing polls and asking politicians about the polls.)

Truman would rank even higher except that his Cold War policies do not stand up under the scrutiny of history. Jim Juhnke and Carol Hunter, in their book "The Missing Peace", document how the Soviets viewed the race as a political and economic one, but the Truman Administration mistakenly saw it as a military conflict and thus we had the Cold War. George Kennan, architect of the post-WW2 policy of containment, later disavowed the way the policy had been carried out. Kennan's view was that "a post-war political struggle between the U.S. and the Soviet Union was inevitable. The runaway arms race and global militarization were not." Juhnke and Hunter state that official documents released since the breakup of the Soviet Union confirm the accuracy of Kennan's view.

The misinterpretation of Kennan's containment policy was so severe that twenty years later when he published "Memoirs: 1925-1950". he still found it necessary to devote much attention to this issue. He relates how when his "X-article", containing his theories, was first published, esteemed commentator Walter Lippmann wrote a series of twelve columns in response, later published in book form. Kennan actually agreed with Lippmann, even though Lippmann was ostensibly criticizing the X-article. Kennan writes, on page 361 of his memoirs, that he "went to great lengths to disclaim the view, imputed to me by implication in Lippmann's columns, that containment was a matter of stationing military forces around the Soviet borders and preventing any outbreak of Soviet military aggressiveness. I protested, as I was to do on so many other occasions over the course of the next eighteen years, against the implication that the Russians were aspiring to invade other areas and that the task of American policy was to prevent them from doing so. The Russians don't want, I insisted, to invade anyone. It is not in their tradition."

My sixth-grade teacher told us that we would all perish from nuclear annihilation before we reached adulthood. And then while in high school we had the whole fallout shelter hubbub.  The controversy that would get endlessly debated was whether, if your family was holed up in your shelter and neighbors knocked on the door wanting in, would you let them in?  The reasons for denying them entry were that 1) they should have had the foresight to build their own shelter, and 2) your supplies would not hold out long enough if others were allowed in.

And then there were the civil defense drills, in which all students would crouch under their desks.  I don't remember personally experiencing this, but I know that many in my generation did.  So, this was the sort of cloud that my generation grew up under, and it is directly traceable to Truman's misguided policies, which were based on a misinterpretation of George Kennan's X-article.

16. John F. Kennedy (1961-1963).  JFK brought an unprecedented level of wit, style and grace to the White House. He made us all feel better about our country, and better about ourselves.

The problem with JFK is that he was an inveterate Cold War warrior, taking Truman's misguided policies to extremely dangerous levels. In "The Crisis Years: Kennedy and Khrushchev 1960-1963", historian Michael Beschloss says that 1960-1963 "were the only years in all of our experience when Americans felt an imminent danger of dying in a nuclear war".

Historians credit Kennedy for getting through the 1962 Cuban missile crisis without going to war, but Beschloss explains that the Soviet missiles were in Cuba in the first place only as a response to the many attempts of the Kennedy administration to overthrow Castro, whether by assassination or otherwise.

Indeed, the CIA was so involved with assassination plots of foreign leaders under Kennedy that when Robert Kennedy got word of his brother's assassination, the first thing he did was go into the CIA Director's office and ask, "Did your people do this?" Indeed, the JFK administration took Ike's (mis)use of the CIA to new levels of mischief. While Ike had 170 covert operations in 8 years, Kennedy had 163 in less than 3.

JFK's inaugural address is the only one in history which dealt solely with foreign affairs. That was Kennedy's passion, developed over the course of his entire life. His famous statement in the inaugural address that "we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty" articulated an attitude which led to the debacle of the Vietnam War.

17.  Harding (1921-1923).   Historians who rank the presidents typically know a lot about the few they have researched and written about, and not much about the others. This is the only explanation for the low rating Harding gets from historians.

Harding was actually a very popular president, and surely would have been re-elected easily had he lived. He got along well with others, as shown by his low number of vetoes (only six, the lowest number of any president serving 2+ years since Millard Fillmore).
 
Harding deserves credit for commuting the sentence of Eugene Debs so that Debs could be released from prison, and then inviting him to the White House. This was a humanitarian gesture which his predecessor, Woodrow Wilson, had repeatedly refused to do, despite the repeated recommendations of his Attorney General that Debs be pardoned.

Harding's scandals, involving two of his political appointees who turned out to be corrupt, didn't come to light until after his death. Harding personally had no involvement.

H.L. Mencken's mean-spirited diatribe about Harding's use of the language has had more influence than it should.  Mencken wrote that Harding "writes the worst English that I have ever encountered. It reminds me of a string of wet sponges; it reminds me of tattered washing on the line; it reminds me of stale bean soup, of college yells, of dogs barking idiotically through endless nights. It is so bad that a sort of grandeur creeps into it. It drags itself out of the dark abysm of pish, and crawls insanely up the topmost pinnacle of posh. It is rumble and bumble. It is flap and doodle. It is balder and dash."

18. Franklin D. Roosevelt (1933-1945). The more I learn about FDR, the less I like him. I suppose his high esteem among historians could be attributable to three general reasons: 1) His oratorical skills and his personal charm; 2) His New Deal policies; and 3) Turning a blind eye to his many negatives. His oratorical skills and charm are obvious, but surely it takes more than that to be great. I will examine the other two factors.

The New Deal was a valiant effort, but the evidence discloses that it did not pull us out of the great depression, so in that sense it can be regarded as a failure. David M. Kennedy, in his great book "Freedom from Fear", sums it up like this: "It might be well to begin by recognizing what the New Deal did not do, in addition to its conspicuous failure to produce economic recovery. Much mythology and New Deal rhetoric notwithstanding, it did not substantially redistribute the national income. America's income profile in 1940 closely resembled that of 1930, and for that matter 1920....Nor, with essentially minor exceptions like the TVA's electric-power business, did the New Deal challenge the fundamental tenet of capitalism: private ownership of the means of production. In contrast with the pattern in virtually all other industrial societies, whether Communist, socialist, or capitalist, no significant state-owned enterprises emerged in New Deal America."

Under FDR unemployment peaked at 24.9% in 1933, and by 1938 it had fallen only to 19.0%. Surely this is not a significant improvement after five years of strenuous efforts, so one must conclude that the New Deal did not deliver. What got us out of the depression was an armaments buildup starting in 1939, which in two years increased U.S. manufacturing output by 50%! During the period of 1933-1938, unemployment fell by only 23.7% under FDR, compared to 46.6% under Clinton and 35.6% under Obama.

Now we come to all the negatives. If FDR was interested in real change, he would have supported Upton Sinclair for governor of California in 1934. Sinclair traveled to Washington to meet with FDR and left thinking he had his endorsement, but it turned out FDR had no intention of endorsing him (but wasn't man enough to tell him this to his face). The reason is that Sinclair was an advocate of real change, not the phony change FDR was pushing.

Another advocate of real change became FDR's implacable foe. This guy was Huey Long of Louisiana. FDR was so afraid of a challenge from Long in 1936 that he sent 50 FBI agents to Louisiana to try to dig up dirt on him! This represents a shocking abuse of power, but is revealing in the way FDR was more worried about perpetuating his own power than he was about doing the right thing. It was a precursor to the abuses of power another president, Richard Nixon, later inflicted on the nation.

A few years later we have the boatload of 937 Jews fleeing the Holocaust on the St. Louis, and FDR  refused to let any of them into the country. The shocking insensitivity of this is mind-boggling. The Jews were returned to Europe where many perished in the Holocaust. What shows the total indifference of FDR to the plight of the Jews is his failure to ever bomb the railroad tracks transporting Jews to their death at Auschwitz, even while he was committing war crimes by bombing the civilian population of the German city of Dresden.

When he ran for re-election in 1940, FDR pledged that he would "not send American boys into any foreign wars."This while he was actively preparing for war, and doing everything he could to get the U.S. into the war! Shame.

And then there are the concentration camps for Japanese-Americans during World War Two. Completely unjustified and contrary to our principles as a country. Similarly, FDR refused to desegregate the armed forces, which he could have easily done, and in fact Truman did do a few years later. If Truman could do it, why didn't FDR?

FDR's running again in 1944 was his final insult to the American people. Jim Bishop, in his book "FDR's Last Year", relates how during his entire last year FDR would get a complete physical exam every morning and every evening. The doctors would constantly be telling him to get more rest, even though he was already spending most of every day in bed. Bishop says that the doctors never told him how sick he was, and FDR never asked. But he had to have known it, anybody would have known it under these circumstances.

Despite this, in a shocking display of hubris, FDR ran again in 1944. According to Bishop, his constant comment was that he was not going to desert the troops serving under him as Commander of Chief during a war, any more than he would expect any other soldier to desert his post. This analogy is bogus, it just does not hold water. FDR was dead less than three months after his fourth inauguration, and he died without telling his new Vice-President, Harry Truman, about the atomic bomb. The fact that he did not bring Truman into the information loop, especially given the likelihood of his dying, is inexcusable. Again, unforgivable hubris.

19.  John Adams (1797-1801). Adams deserves much credit for avoiding war with France, a war which seemed imminent during his entire administration, and came to be called the "Quasi-War".

However, Adams' use of the Sedition Act to imprison newspaper editors who disagreed with his policies is a huge black mark against his presidency. The Sedition Act sounds so un-American in retrospect that it is hard to believe that this was once standard policy. And it might have continued to be standard policy had Adams and the Federalists remained in power. Thank God for Jefferson, whose victory over Adams in the 1800 election got the country back onto the right track.

In "Crisis in Freedom: The Alien and Sedition Acts", John Chester Miller describes how the use of the Sedition Act by Adams and his Federalist party boomeranged: "If the purpose of the Sedition Act had been to multiply Republican newspapers and to increase vastly their circulation, it could be counted an unqualified success. In 1798, there were less than a score of Republican newspapers out of a total of 200; by 1800 there were at least 50 newspapers supporting Jefferson....By imprisoning editors, the Federalists seemed merely to have afforded them more leisure for writing and to have added venom to their pens. All the most influential Republican newspapers were flourishing and their circulation had increased under persecution."

After Adams narrowly lost the 1800 election to Jefferson, the Federalists never again held the presidency. Miller sums up the situation: "And so the Federalist party went down, not in the fullness of honor and with its ideals held high, but in obloquy and contempt. It had gambled everything on laws designed to perpetuate its control of the government of the United States; when those laws failed to achieve their purpose, the party was bankrupt. Much of the Federalists' social and political philosophy was outmoded in 1800; but it was the immorality of their public conduct and their disregard of the basic freedoms of Americans that completed their ruin and cost them the confidence and respect of the people."

20.  George H.W. Bush (1989-1993). George H.W. Bush's main problem was that he was a man without a constituency. Texans never embraced him as one of their own, even though he had lived his adult life there. True conservatives never embraced him either; their hero was Bush's predecessor, Ronald Reagan, and Bush simply did not possess the rhetorical gifts to inspire conservatives that Reagan did.

Bush himself was never able to articulate a conservative message, or, really, a message of any kind. Bush's cavalier way of shrugging off this defect by referring to it as "the vision thing" was off-putting to many.

George Will was positively Menckenesque in criticizing Bush for this, when he wrote:  "Tracing a thought back from its manifestation in speech to its origin in his thinking is like seeking the source of the Blue Nile. The problem with Bush sentences that reel drunkenly around a topic is not just aesthetic. Neither is the problem only that syntactic chaos is a sign of a chaotic mind. The basic and alarming problem is that Bush's chaotic mind seems to be a consequence of his lack of public purpose."

Will goes on to say:  "Some people seek office to be something, others seek office to do something. Bush is one of the former, In this, the contrast with Ronald Reagan is complete."

Bush's pick of Dan Quayle for Vice-President is surely one of the worst in history. Quayle was a nonentity who Bush trusted with no significant responsibilities whatsoever, either in the campaigns or in his administration.

Bush's strong point is that he, more than any president in history, went about war in the right way. He put together an alliance of many countries, including an impressive number of Arab countries. He gave Iraq ample time to withdraw from Kuwait, in order to avoid war. And he negotiated an unprecedented agreement with Saudi Arabia to use their soil from which to wage the war.

21.  James K. Polk (1845-1849).  A superficial analysis of Polk's presidency would rank him high due to his "accomplishment" of almost doubling the size of the country. However, a closer look at the methods he used to do this does not paint a pretty picture. The University of Virginia's Michael F. Holt concludes his analysis with the statement that "Polk's dealings with Mexico constitute one of the shabbiest episodes in American diplomatic history".

Polk had many personality shortcomings. He was a vain, suspicious, introverted, ill-humored  person who did not get along with others. Polk biographer Robert Merry emphasizes how sanctimonious Polk was. Merry told C-SPAN's Brian Lamb that sanctimonious people have never made good presidents. He lists Polk, John Quincy Adams, Woodrow Wilson, Jimmy Carter, and George W. Bush as sanctimonious men who were all failures as presidents.

22.  James Madison (1809-1817).  Madison deserves great credit for his work on the Constitution, but he was decidedly mediocre as a president. Roseboom says that "Monroe was the only first-rate man in the Cabinet", Monroe being the Secretary of State under Madison.

Unlike the three presidents before him, Madison was unable to avoid war. He took us into the War of 1812, which was a completely misguided venture which accomplished absolutely nothing. The Congressional vote to go to war against Britain was only about 60%, way too low to be the basis for a national war effort. (This shows a serious flaw in Madison's constitution; i.e., if a peace treaty must have a 2/3 vote, why in the world wouldn't a vote to go to war require at least that great of a majority?) So great was the opposition to the war that it provoked a serious secession movement in the New England states.

Madison's handling of the war was completely inept. The burning of the capital is certainly a prominent black mark on his war effort, but an examination of the entire war reveals that it was mismanaged throughout.

 For a detailed discussion of the war I recommend Donald R. Hickey's "The War of 1812: The Forgotten War". Hickey concludes that "A combination of Federalist opposition, Republican factionalism, and general public apathy undermined the entire war effort....A strong president might have overcome some of these problems, but Madison was one of the weakest war leaders in the nation's history...Cautious, shy, and circumspect, Madison was unable to supply the bold and vigorous leadership that was needed."

23.  James Buchanan (1857-1861).  Buchanan is criticized by historians because he failed to prevent the Civil War. This criticism is completely bogus on at least two counts. First, the Civil War is on Lincoln's shoulders, not Buchanan. There was no Civil War under Buchanan. And second, the historians never say exactly what they think Buchanan should have done to heal the growing sectional tensions.

No, Buchanan ranks low, but it is because he was simply on the wrong side of history regarding slavery. His Southern sympathies were on display early on when he appointed to his Cabinet four southerners and three northern doughfaces (southern sympathizers).

His handling of the Kansas situation was especially inept.  He tried everything in his power, including patronage and outright bribery, to get the Lecompton constitution approved by Congress, even though it had been promulgated by pro-slavery forces at a convention that was boycotted by anti-slavery forces. Despite Buchanan's (misguided) efforts, the House defeated the Lecompton constitution, and leaders in Congress, providing the leadership sorely lacking in Buchanan, fashioned a decent compromise which allowed Kansans to have a fair vote. Kansas then soundly rejected the Lecompton constitution, and entered the union as a free state near the end of Buchanan's term in office.

Buchanan's lack of leadership not only marked his presidency as a failure, but it also wrecked his Democratic party. It would not be until 1885, 24 years later, that there would be another Democratic president.

24.  Herbert Hoover (1929-1933). Hoover did not cause the depression, but he can be faulted for his inadequate response to it.  Hoover's problem was that he came from a long line of Republican presidents who had a limited view of the scope of federal power.

Hoover's approval of the onerous Smoot-Hawley tariff was one of the most misguided decisions a president has ever made.  Anybody with any sense could see it would only make things worse, which is what it did. It is especially inexplicable given that it came in an age when the income tax was in force, meaning that the government was no longer as reliant on the tariff for revenue.

Hoover's savage eviction of the Bonus Marchers from government land in 1932 was a real black mark on his administration. It is likely that General Douglas MacArthur exceeded his orders in the brutal way in which he handled the eviction; however, that does not excuse Hoover who was ultimately responsible for the human devastation it caused.

25. Woodrow Wilson (1913-1921).  Wilson would rank much higher if only his first term was considered.  His first term was filled with great accomplishments in the areas of tariff reduction, workers' rights, the Federal Reserve Act, the Clayton Antitrust Act, and the Federal Trade Commission Act.

But then came the second term, and the Wilson administration self-destructed. He barely won re-election to a second term in 1916, using the slogan "He kept us out of war". A 4,000-vote swing in California would have given the election to Hughes.

Wilson then took us into war, on the ridiculous notion that the war would "make the world safe for democracy". In support of his war effort, he signed the Espionage Act of 1917, under which Eugene Debs and many others were imprisoned simply for speaking out against the war. This horrible law is still used today to punish political dissidents; in recent times, Barack Obama used it repeatedly to prosecute government whistleblowers, and ended his administration with  more such prosecutions than all other presidents combined.

Wilson's treatment of Debs leaves a horrible black mark on his presidency. He initially refused to pardon him because the peace treaty ending the war had not been signed. Then, once the treaty was signed, his excuse was that his Attorney General did not approve of the pardon. The AG finally concluded that pardoning Debs was the right and humane thing to do, but Wilson still refused!  All this is documented in detail in the book "Democracy's Prisoner", by Ernest Freeberg.

Wilson was at his most inept at the Versailles Peace Conference which followed the 11/11/18 armistice.  As ably documented in "The End of Order", by Charles L. Mee, Jr., Wilson gave in to the wishes of Lloyd George and Clemenceau, the British and French leaders, on almost every major point. The result was a pathetic document, which was presented to Germany on a take-it-or-leave-it basis, the "leave it" consequence being that the allies would re-start the war by invading Germany. The ridiculous Versailles Peace Treaty which resulted violated most of Wilson's fourteen points, even though Germany had agreed to the armistice based upon these fourteen points.

Wilson's ineptness at the peace conference was evident throughout. John Maynard Keynes observed:  "The president's slowness amongst the Europeans was noteworthy. He could not all in a minute, take in what the rest were saying, size up the situation with a glance, frame a reply, and meet the case by a slight change of ground; and he was liable, therefore to defeat by the mere swiftness, apprehension, and agility of a Lloyd George. There can seldom have been a statesman of the first rank more incompetent than the president in the agilities of the council chamber."

Wilson's incompetence further manifested itself back home when he began pushing for approval of the treaty under which the U.S. would join the League of Nations, his pet project. Instead of meeting with the Republicans who opposed it, and fashioning a document both sides could accept, he presented it on a "take it or leave it" basis, and it was then rejected by the Senate. The main issue troubling Republicans was a provision that the League could send U.S. forces into battle without the consent of Congress. Wilson refused to budge on this, and his "go it alone" approach, which included his failure to take any Republican Senators with him to Versailles to work on the peace arrangements, meant disaster for Wilson and, ultimately, for his doomed presidency.

26.  John Tyler (1841-1845).  John Tyler was one of those presidents who did not understand that politics is a team sport. He took over in 1841 upon the death of William Henry Harrison, and before the year was out he was a man without a party, having alienated the Whigs so badly over the National Bank issue that they kicked him out of the party. Following that event, five of his six Cabinet members resigned, leaving only Secretary of State Daniel Webster as the sole holdover.

The Tyler administration did have some accomplishments.  For example, Webster negotiated a treaty with the Brits which settled a boundary dispute between Maine and New Brunswick.

Following this Webster-Ashburton Treaty, Webster also resigned, and set about repairing his damaged relations with his Whig party.  Tyler appointed a Southern sympathizer as Webster's successor, and this guy pushed for the annexation of Texas, which would have added another slave state to the union (or possibly as many as five, as under one proposal Texas could have been subdivided into several states).  Thus, Tyler's term ended with Tyler having no constituency, and the sectional tensions in flames over the Texas issue.

27.  Franklin Pierce (1853-1857). Pierce was simply not enough of a leader to confront the  problems facing the country in the difficult pre-Civil era in which he served. Roseboom says that Pierce's approval of the repeal of the Missouri Compromise of 1820 was "one of the costliest blunders in White House history".

Once this was done, and slavery was to be determined by popular sovereignty in the Nebraska Territory, Pierce proceeded to appoint a series of incompetent governors to rule it, leading to the infamous "bleeding Kansas" part of our history.

28. Ronald Reagan (1981-1989). Reagan made one of the most despicable comments ever when he said that "Government is not the solution to the problem, it is the problem." This attitude led to greed becoming fashionable, and regulation unfashionable, which in turn led directly to the financial meltdown of the 2000's. Reagan saddled us with a huge debt due to his fiscally irresponsible budgets, and he spent many billions in unnecessary defense expenditures.

It is common in some circles to credit Reagan with the demise of the Soviet Union. However, this thesis does not stand up to analysis. In their book "The Missing Peace", Juhnke and Hunter summarize the situation like this: "The 'Reagan victory' thesis will continue to be popular among right wing militarists, but it suffers from its limiting assumption that great world events must have their primary origin in the United States. It also ignores the Soviet historical inclination to respond to external military pressure with new repression and military escalation. The end of the Cold War was triggered not by an American military buildup, but by the economic failings of the Soviet Union, by the reforms of Mikhail Gorbachev, and by the timely witness of international scientists who wanted to protect the world from nuclear holocaust."

In his memoir "Deadline", veteran journalist James Reston offers candid assessments of each of the many presidents he covered in his long career. He writes about Reagan: "Most people liked his carefree style. He announced when he arrived that it was morning in America, but he didn't like to get out of bed. Unfortunately, when he wasn't looking, which was not unusual, some of his own officials assumed that they had a license to steal or break the law. It wasn't only that he was absent from Washington more than most presidents but that he was often so absentminded when he was in the capital that he had the most expensive banking and housing scandals on record and didn't even notice them."

Reston continues, "He thought that government was 'too big' but presided over the biggest government in the nation's history. He recommended religion, but seldom went to church. He was divorced and not close to his children, but preached family values. If it hadn't been for his indolence, his ignorance would have been intolerable."

29.  William Howard Taft (1909-1913).  Taft often wrote to family and friends that "politics makes me sick". This distaste for politics goes far to explain his failure as a president. He possessed great intelligence and integrity, but he was unsuited for the intense give-and-take of the presidency. Taft was later in his element in the 1920s when he was appointed Chief Justice of the Supreme Court, a position at which he excelled.

30.  Andrew Johnson (1865-1869).  Johnson rates this low not because he was impeached and almost removed from office. His impeachment was totally bogus, based as it was on an alleged violation of the Tenure in Office Act, later to be declared unconstitutional by the Supreme Court as an improper attempt by Congress to infringe on presidential prerogatives. (For an informative and entertaining account of the Johnson impeachment, as well as of the law and theory of impeachment in general, I highly recommend William Rhenquist's "Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson".)

Nor can Johnson be ranked this low simply because he disagreed with Congress over how to handle Reconstruction, to the extent these differences resulted from an honest difference of opinion rather than from nefarious motives.

Johnson's problem resulted from his aloof nature and his refusal to work with Congress on solving the problems of Reconstruction. Columbia University's Eric Froner writes that Johnson was "a lonely, self-absorbed man, who, as Gideon Welles, later his secretary of the navy, remarked, 'has no confidants and seeks none.' His major decisions, Welles added, seemed to have been made without consultation with anyone whatever."

Johnson repeatedly vetoed bills passed by Congress. During his term he vetoed 29 bills, more than twice as many as any president before him. 15 of his vetoes were overridden by Congress, more than any other president before or since. True leadership would have meant working with Congress to craft bills acceptable to both sides, but Johnson simply didn't have it in him to do this.

Johnson's racism, often masked in the language of state's rights, reared its ugly head on any number of occasions. Froner says that "Johnson had somehow convinced himself that clothing blacks with the privileges of citizenship discriminated against white people".  Johnson explained one veto by saying that "the people of the South, poor, quiet, unoffending, harmless, are to be trodden under foot to protect niggers."

For his lack of leadership at a time when leadership was needed the most, Johnson deserves a place in the Presidential Hall of Shame.

31.  Benjamin Harrison (1889-1993).  Sandwiched between Grover Cleveland's two terms, Harrison's victory was likely stolen by his supporters. He was unsuited for the presidency, as he was so aloof that he was known as "the human iceberg". The McKinley Tariff of 1890 was passed on his watch, raising tariffs to an average level of almost 50%. This outrageous and misguided policy typified Republican thinking of this era, as the tariff issue became an issue of clear differences between the two parties.

32.  Calvin Coolidge (1923-1929).  Coolidge burst into the national consciousness in 1919 when, as governor of Massachusetts, he responded to a Boston police strike by saying that "There is no right to strike against the public safety, anywhere, anytime." Unfortunately, Coolidge never showed such strong leadership as president. His approach was always to sit back and let events unfold.

Kansas newspaperman William Allen White  famously wrote about Coolidge, saying "he had no small talk, and quacked his casual sentences in staccato...He exhibited absolutely no initiative...He is negation incarnate. As president he bestraddled progress face backward...He had no qualities of leadership...He was always an undramatic and unimaginative man."

Coolidge's laissez-faire approach to the economy led directly to the stock market crash of 1929, and the great depression which followed. There is a modern movement to rehabilitate Coolidge's image somewhat, and White himself later softened his appraisal of Coolidge. However, I hold that White's original view is correct, and that Coolidge deserves his low ranking being given here.

33. Abraham Lincoln (1861-1865). It is customary to place Lincoln at or near the top, but how can that be justified when he has the blood of 620,000 dead Americans on his hands? Historians seem to accept without questioning that the Civil War was a good thing for the country, when careful scrutiny reveals just the opposite!

The Civil War was by far the deadliest war in our history. The total of dead is the highest of any war, and the 2.4% of the population who perished is by far the highest of any war. By contrast, World War II, usually considered the worst war, saw "only" .3% of the population lose their lives.

Lincoln was just plain wrong on so many levels, it is hard to know where to begin. Let us start on a basic issue--the legality of secession. First, let us note that the Constitution says nothing about secession, either pro or con. Thus, we need to read the document as a whole and infer what the founders intended.

When we do this we see that the founders intended that the federal government would have only those powers specifically delegated to it by the Constitution, and the states (or the people) would have all remaining powers. Any fair reading of the Constitution as a whole thus leads to the conclusion that secession is not illegal, and Lincoln was therefore wrong in assuming as such.

Buffalo lawyer James Ostrowski has undertaken a detailed scholarly analysis of this issue, and his conclusion is: "In 1861, the Constitution did not authorize the federal government to use military force to prevent a state from seceding from the Union. The Constitution established a federal government of limited powers delegated to it by the people, acting through their respective states. There is no express grant to the federal government of a power to use armed force to prevent a secession and there is no clause which does so by implication. To the contrary, the notion of the use of armed force against the states and the subsequent military occupation and rule of the states by the federal government does violence to the overall structure and purpose of the Constitution by turning the servant of the states into their master. Any doubts about whether the federal government had such a power must be resolved in favor of the states since the Ninth and Tenth Amendments explicitly reserve the vast residue of powers and rights to the states and to the people of those states."

Lincoln in his July 4, 1861, message to Congress seeking support for his war effort, complains bitterly about the South's use of the term "secession". Lincoln insisted throughout the conflict that "rebellion" was a more appropriate term. He accused the South of "an insidious debauching of the public mind". The irony here is that it was Lincoln himself doing the debauchery, for the term "rebellion" does not at all describe the peaceful act of seceding, which was what the south was trying to do. The word "rebellion" refers to an armed conflict. It is derived from the Latin "rebellio", meaning as such. By casting it in terms of what the Constitution defines as treason, Lincoln deliberately inflamed this issue and pushed the North into a war, while engaging in the sort of abuse of language that tyrants the world over have done throughout history. The old saying which comes to mind is, "If you tell a lie often enough, people will start believing it." Well, Lincoln told this lie repeatedly.

On page 58 of Schlesinger's "The Imperial Presidency", the author describes how Lincoln repeatedly acted without Congressional authorization:  "Lincoln delayed the convocation of Congress from April 12, 1861, when Fort Sumter was fired upon, until July 4 lest rigid constitutionalists on the Hill try to stop him from doing what he deemed necessary to save the life of the nation. In his 12 weeks of executive grace, Lincoln ignored one law and constitutional provision after another. He assembled the militia, enlarged the army and navy beyond their authorized strength, called out volunteers for 3 years service, spent public money without congressional appropriation, suspended habeas corpus, arrested people 'represented' as involved in 'disloyal' practices and instituted a naval blockade of the Confederacy."

Schlesinger goes on to say that "Throughout the war, even with Congress in session, Lincoln continued to exercise wide powers independently of Congress. He asserted the right to proclaim martial law behind the lines, to arrest people without warrant, to seize property, to suppress newspapers, to prevent the use of the post office for 'treasonable' correspondence, to emancipate slaves, to lay out a plan of reconstruction. His proclamations, executive orders and military regulations invaded fields previously the domain of legislative action. All this took place without a declaration of war by Congress."

The issue of reprovisioning Fort Sumter arose immediately after Lincoln's inauguration. When he asked his Cabinet for their written advice, only one thought that reprovisioniong Fort Sumter was a good idea. Secretary of State Seward wrote that "I do not think it wise to provoke a civil war beginning at Charleston, and in rescue of an untenable position. Therefore, I advise against the expedition in every view". Secretary of the Interior Smith wrote, "Believing that Fort Sumter cannot be successfully defended, I regard its evacuation as a necessity, and I advise that Major Anderson's command shall be unconditionally withdrawn." Lincoln chose to ignore his advisers, thereby provoking the Civil War. Some misguided folks view Lincoln's go-it-alone approach as leadership; I see it as tyranny.

When Lincoln finally got around to involving Congress in his treachery, in his message of July 4, 1961 requesting funds to pursue his war, he never once mentioned slavery. This puts the lie to the oft-expressed idea that the Civil War was about slavery. Lincoln's war against the Confederacy had nothing to do with slavery, as his July 4th message makes clear; rather, it was about preserving the union.

One look at how hopelessly divided the country is now between red and blue states, and it would seem that we would be much better off had Lincoln simply allowed the southern states to go in peace as they were trying to do. Bear in mind that only the seven deep South states initially seceded.  It was only after Lincoln decided to wage war on the South that they were joined by Virginia, North Carolina, Arkansas and Tennessee.  Had Lincoln allowed the seven to go in peace, we would likely still have the other four as part of the country.

Our country was started by an act of secession, wherein the colonies split from their mother country. There are numerous examples in recent world history where acts of secession have taken place, without any question being raised as to their propriety. Rather than belaboring this, I will end with a plea that folks think for themselves about this issue, without being brainwashed by the fake news in the slanted history books.

34. Jimmy Carter (1977-1981). Jimmy Carter was the most inept president in our history not named George W. Bush. It is fine to campaign as an outsider, but once you achieve power you have to know how to use it. This Carter never figured out how to do. And what's worse, he never showed any interest in even trying to learn how to get things done in Washington.

He started out on the wrong foot when House Speaker Tip O'Neill received seats in the last two rows of the orchestra at Carter's inaugural gala.  When he protested, Hamilton Jordan responded in a rude and disrespectful way, essentially telling O'Neill where he could stick it.

After four years of bungling, Carter ended on an equally sour note when, on election night, he conceded to Reagan more than an hour before the polls closed on the West coast. O'Neill asked, "What in God's name is wrong with you people?" When told that Carter didn't give a damn about the Western Democrats whose election was put in jeopardy by his premature surrender, O'Neill exploded, "You guys came in like a bunch of jerks, and I see you're going out the same way."  Two California Democratic Congressmen blamed Carter's early concession for their narrow re-election defeats.

Carter never did learn how to get along with Congress, and his communication skills were so poor that he was equally inept when he tried to go over the heads of Congress to the public. The Democratic whip, John Brademas, got a huge, unforgivable snub when Carter came to his home state of Indiana and gave a speech without recognizing or thanking either him or Senator Birch Bayh, both of whom were sitting right behind him on the platform. Brademas complained that, "I was on Nixon's enemies list, but he never treated me that way." Brademas lost his seat in 1980, after winning eleven straight before that, and blamed Carter for the defeat.

Journalist David Brinkley thoughtfully summarized Carter's problems with these observations:  1) He had no base in the Democratic party and few friends in the federal government, making it difficult for him to achieve his purposes; 2)  Despite his intelligence, he had a vindictive streak, a mean streak, that surfaced frequently and antagonized people; 3) He became so absorbed in detail that he never was able to articulate a coherent public policy, foreign or domestic.

Historian Arthur Schlesinger Jr. says Carter was a "narcissistic loner" whose 1976 election was a mistake. Schlesinger says that the 1980 election was "the only time in my life that I voted for anyone but a Democrat for president".

But the crowning blunder of Carter's presidency was when he ignored the advice of his intelligence people and let the Shah of Iran into the U.S. His intelligence people had told him that our embassy in Iran would be in jeopardy if he did this, and the embassy did in fact end up getting overrun and the hostages were taken. Carter's excuse for his decision was that the Shah needed medical treatment that he could only get in the U.S. I accepted this explanation at the time, but later it came out that the Shah could have received the same treatment in Mexico City, since the U.S. doctors were willing to go there to treat him. So, the President who promised he would never lie to us, had lied to us. A tragic, though fitting, end to a horrible presidency.

35. Andrew Jackson (1829-1837). Jackson's forcible removal of Native Americans to Oklahoma is one of the sorriest chapters in U.S. history, violating the spirit, if not the letter, of the Supreme Court's decision in Worcester v. Georgia. After that opinion was rendered Jackson is reported to have said, "John Marshall has made his decision; now let him enforce it." Whether Jackson actually said this or not is not the point--the point is that this accurately represented his viewpoint. Quite a conflict between the judicial and the executive branches of government could have ensued had other Presidents been as nasty and full of ill will as Jackson was.

Jackson's misguided economic policies regarding the National Bank totally wrecked the economy, leaving his successor, Martin Van Burn, to clean up the mess Jackson had created.  Jackson, the only president ever to be censured by the Senate, certainly belongs in the National Hall of Shame.

36. Lyndon B. Johnson (1963-1969). Because of his ego, Johnson refused to admit that the Vietnam War was a mistake, and tens of thousands of young Americans died as a result. Many more came back badly damaged, either physically or psychologically, and the country is still dealing with the after-effects of this horrible war which divided the country and was totally unnecessary, based as it was on a false domino premise.

While not on the scale of the Vietnam debacle, Johnson's foray into the Dominican Republic in 1965 was also a clear usurpation of Congressional authority. He sent 22,000 troops to the Dominican Republic on the pretext that he needed to protect American lives. Schlesinger says this number of troops was "about a hundred times more than were necessary for the specified purpose." Johnson soon revealed his real reason for sending the troops, when he said that "we don't propose to sit here in our rocking chair with our hands folded and let the Communists set up any government in the Western Hemisphere." Doing this on his own, without Congressional authorization, clearly exceeded his authority under the Constitution, just as much as his war in Vietnam did.

LBJ simply was unable to connect with the electorate. When I was in jail in 1968 with many black veterans of the civil rights movement, it soon became clear that they idolized Kennedy and despised Johnson. I asked one of them once, "Didn't Johnson do a lot for civil rights?" His response was, "Nah, Johnson hasn't done anything."

Johnson also pushed his much-ballyhood "War on Poverty". When I worked for a Community Action Program that was part of this war on poverty, one of the program directors, in a moment of frustration, said to me once, "We're pimples on the assholes of the poor." Despite my friend's inelegant phrasing, he had a good point. The war on poverty was an abject failure.

So, an appropriate epitaph for Johnson could be, "He fought two wars and lost them both."

37. Ulysses S. Grant (1869-1877). Presidential historian Richard Shenkman, in "Presidential Ambition: How the Presidents Gained Power, Kept Power, and Got Things Done", observes that Grant's is the first administration "filled with people who wanted to use government connections to become rich". The corruption was so pervasive that the final count was 230 indictments and 110 convictions. His chief of staff (in today's vernacular) was put on trial for corruption in St. Louis, based on his involvement in the "whiskey ring", and Grant wanted to take a train there to testify on his behalf. When his cabinet talked him out of that, he gave a deposition in the White House saying that if Babcock is guilty, then he, Grant, is guilty also. When Babcock was acquitted, Grant wanted to hire him back at his old job, and his cabinet again had to talk him out of it, so Grant gave him another job and let him stay on the federal payroll! Incredible.

38. George W. Bush (2001-2009).  Bush was by far the most inept president in our history. Almost everything he did, he did poorly, and often tragically so.

He took the country to war in Iraq, against a country that had not attacked us, had not even threatened to attack us, and did not possess the weapons it would need to attack us. When asked about the failure to find the weapons of mass destruction (WMDs), Iraq's possession of which was the pretext for the war, Bush replied, "He could get them". This is the height of stupidity, surely the dumbest thing a president has ever said. Apparently Bush's principle is that we now go to war against a country not because it has attacked us, not because it has threatened us, but because it might at some point in the future acquire the means it would need to threaten us! It is tremendously depressing to even have to write these words, so profoundly bad was this president.

Bush botched the post-war occupation of Iraq even more than the war itself, if that is possible. Bob Woodward's massive account, "Bush at War, Part III', documents the way this was bungled from the start.

The examples of two good men caught up in the chaotic mess that was the Iraq war demonstrated the "Bush incompetency. Jay Garner was a retired military man who, in January of 2003, was pressured to accept the job of taking charge of post-war Iraq. He was thwarted in his job as every turn by the Washington bureaucracy, and finally quit in disgust in early June. When he quit, he reiterated the three points on which the Bush administration was making serious mistakes in handling post-war Iraq. These were: 1) the extent of the de-Baathification; 2) getting rid of the army; and 3) summarily dumping the Iraqi leadership group.


Disbanding the military meant there were hundreds of thousands of disorganized, unemployed, armed Iraqis running around. The de-Baathification meant there were some 50,000 Bathists who were forced underground. The natural and logical effect of this was twofold: there was nobody left to run the country, and all these people had nothing to do but join an insurgency movement. Rather than changign its straegy, the Busdh administatin totaly ignored Garner's advice, and, as he predicterd, an insurgency didi n fact devellp whcih contineus to thsi day.

Then ther is the David Kay saga. After two and a half months of loking for the WMDs without success, thre adminsdtation tapped Kay to take charge fo he job, Kay being one fohe worl'd foremost experts on nuclear weapons inspecitns. Kay immediatley re-oriented the search from a hysical sesrch o fhte 946 locsations suspected of having WMDs. to an intelligence operation, saying "You simpl cannot find weaons fo mass destructin using a list. You have to trat thsi as an intelligcne opeatin. You go after people. ...You can't dig up the whole country. So you rat it by ging after the expertise, the sdecurity guards that would have been there, the movers, the generals that would have seen it, the Special Republican Guard."

Kay was hired in June of 2003, and quit in disgust the following January. His final report to the administration was caustic, criticizing the poor intelligence which resulted in the original conclusion that Iraq possessed WMDs. For example, much of the so-called "intelligence" came from an alcoholic Iraqi defector code-named Curveball, who the CIA had never even interviewed, relying instead on German intelligence reports.

Many in the Bush White House were as incompetent as Bush himself. Rumsefeld was surely the worst Secretary of Defense in our history, and was universally despised. David Kay called Condaleeza Rice the worst National Security Adviser in our history. She failed to protect the president from the bogus CIA claim regarding WMDs, choosing to accept the CIA conclusion at face value instead of asking penetrating questions about how the conclusion was arrived at. And then there's FEMA Director Michael Brown, who resigned in disgrace ten days after Bush infamously told him, "Brownie, you're doing a heckuva job", on the post-Katrina disaster relief effort.

Bush is the only president in our history who lowered taxes in a time of war. During the Bush years, the Pentagon budget doubled, and the national debt almost doubled, going from $5.7 trillion to 10.6 trillion.  The end result was the worst financial meltdown since the great depression.

Bush had no understanding of how to marshal a country to fight the two wars which he started, wars which were open-ended operations with no strategy for getting out. U.S. military occupation of middle east countries has provided motivation for terrorists, and has given ISIS and other terrorist groups the best recruiting tool they could have ever hoped for.

39.  Richard Nixon (1969-1974).  If it were just for Watergate, Nixon would rank much higher. After all, nobody was killed because of Watergate, nor did anybody get rich because of Watergate.
A close examination reveals Watergate was not as bad as many other abuses of power in our history. Was Watergate worse than John Adams imprisoning dozens of newspaper editors simply because they disagreed with his administration's policies? Was Watergate worse than Andrew Jackson's forced removal of thousands of Native Americans on the infamous Trail of Tears, a journey on which a fourth of them perished? Was Watergate worse than Abraham Lincoln suspending habeas corpus and imprisoning 12,000 U.S. citizens without trial on the flimsy excuse that they were "suspected of being Southern sympathizers"? Was Watergate worse than Woodrow Wilson imprisoning the saintly Eugene Debs for speaking out against WWI, and then repeatedly refusing to pardon him after the war with increasingly flimsy excuses? Was Watergate worse than FDR sending 50 FBI agents to Louisiana with orders to dig up dirt on his political opponent, Huey Long? Was Watergate worse than FDR's imprisoning thousands of Japanese-Americans during WW2?  Was Watergate worse than FDR's refusal to save Jewish lives by bombing the railroad tracks to Auschwitz, even while he was committing war crimes by destroying the German city of Dresden?

No, the Watergate-related issues were minor compared to the real abuses in our history. What makes Nixon the worst president we've ever had is not Watergate; rather, it is the manipulation of the Vietnam War for his own selfish political interests. We now know the full story of this from his tapes, some of which have only become available in recent years.

Ken Hughes, who has spent over a decade studying the Nixon tapes and other historical  materials, has written two books documenting these abuses. In his 2014 book "Chasing Shadows", Hughes documents how Nixon contacted the South Vietnamese government just prior to the 1968 election, telling them not to agree to the ceasefire being proposed by President Johnson, because they could get a better deal from him after the election. This was critical to the election result, because a ceasefire probably would have given the election to Nixon's Democratic opponent, VP Hubert Humphrey. Even conservative icon George Will has denounced this interference by a private citizen with words like "treason" and "traitor".

But then the woeful follow-up to this treason is documented in Hughes' 2015 book "Fatal Politics", in which Hughes documents how Nixon started the infamous Plumbers Unit because he was afraid that his 1968 treachery would leak out (a reasonable fear given the recently-leaked "Pentagon Papers"). Hence, Watergate can be seen as an extension of Nixon's original 1968 crimes.

Hughes then goes on to document how Nixon prolonged the Vietnam War for a year in order to assure his 1972 election. His original plan was to withdraw all U.S. troops by the end of 1971. But Henry Kissinger strongly advised against this, because he was fearful that Saigon would fall between the withdrawal and the 1972 election, thereby requiring that Nixon run as the first president to lose a war.

So, Nixon changed plans and embarked on a long campaign of disinformation and outright lies to the American people, his plan being to prolong the war until after the election. Thus, we had U.S. military personnel fighting and dying for a whole year, simply to fulfill Nixon's desire for re-election. Further, we had our POW's languishing in North Vietnam for another year for the same reason.

Nixon's constant lie to the American people was that his plan was "Vietnamization", meaning turning over the fighting to the South Vietnamese when they became able to fight the war on their own. He would continually talk about how we were getting closer and closer to this; however, at the same time he was spouting this nonsense to the voters, his private conversations with Kissinger, as revealed by the tapes, show that they both knew Vietnamization would never work.

Similarly, Nixon would tell the people that we had to remain in Vietnam because our POW's were still there. His use of the POW's as a political tool is especially reprehensible. Nixon knew that the only way to get the POW's back was to withdraw our forces, and then they would be released. But the POW cause had become so huge in the U.S. by this time, that he was able to use this issue as an excuse for prolonging the war.

Knowing South Vietnam could not survive on its own, Nixon negotiated terms with the North Vietnamese for our withdrawal. The terms were that the North Vietnamese agreed not to take Saigon until a "decent interval" had passed after our withdrawal. If they waited for this decent interval (defined as one-two years), then we would not reintroduce troops into South Vietnam. The withdrawal, of course, did not take place until after the election. And the North Vietnamese kept their end of the bargain, waiting until April of 1975 to take Saigon, more than two years after the election.

Just as LBJ had his illegal foray into the Dominican Republic, so Nixon had his illegal foray into Cambodia. The actual invasion was preceded by a year of bombing, 3600 B-52 raids over a 14-month period, all without Congressional authorization or even knowledge. When the bombing didn't work, Nixon ordered the ground invasion into Cambodia. When announcing the ground invasion, Nixon continued to cover up the fact of the bombing, saying that he had not previously "moved against these enemy sanctuaries because we did not wish to violate the territory of a neutral nation."

                                                        Conclusion (posted 9/27/17)

This project ended on a rather depressing note, as I came to realize how bad most of our presidents have been. However, the encouraging aspect of this is that it demonstrates that our system was designed to hold up under the mismanagement of bad presidents. Our Founders were careful to diffuse power throughout the system, so that there are plenty of checks and balances against an unhealthy usurpation of power by one person or one group.

What we find is that the presidency has gained more and more power as time has gone on. Schlesinger concludes "The Imperial Presidency" by noting that "Nixon's presidency was not an aberration but a culmination. It carried to reckless extremes a compulsion toward presidential power..."  Schlesinger goes on to say that "Watergate was potentially the best thing to have happened to the presidency in a long time", the idea being that it led to Congress asserting itself with new laws designed to curb the president's warmaking powers, and to provide better oversight of CIA activities.

The accumulation of power in the presidency is most clearly demonstrated by the increased use of executive agreements over the years. An executive agreement is an agreement between the president and a foreign power, entered into by the president on his own, without congressional involvement. The difference between an executive agreement and a treaty has never been clear. During WW2 a Senator asked the State Dept. to explain the difference between the two; the answer: "a treaty is something we have to submit to the Senate for ratification; an executive agreement is something we don't have to submit to the Senate".

The executive agreement was used as early as 1817, when President Monroe entered into an agreement with Great Britain limiting naval forces on the Great Lakes. Since then, its use has mushroomed. During our first 50 years, 60 treaties were entered into, and only 27 executive agreements. The next 50 years saw 215 treaties and 238 executive agreements, but treaties were still used for major matters.

But McKinley broke new ground when he used the executive agreement to establish the terms for the conclusion of the Spanish-American War, and Teddy Roosevelt used it many times to accomplish actions he felt needed to be taken. Thus, in the third 50-year period, 1889-1939, there were 917 executive agreements and only 524 treaties. Looking back on his presidency as he was about to leave office, TR said that "The biggest matters, such as the Portsmouth peace, the acquisition of Panama, and sending the fleet around the world, I managed without consultation with anyone; for when a matter is of capital importance, it is well to have it handled by one man only." Using this approach, TR sent American forces into Caribbean countries, and on occasion even installed provisional governments in those countries, all without congressional sanction.

By 1971 presidential power had grown to such an extent that in that year the Nixon Administration entered into 214 executive agreements and only 17 treaties. Congress finally acted, and in 1972 passed the Case Act, requiring the president to notify Congress within 60 days of any executive agreement being made.

The balance of power among the various branches of government is always shifting, depending on current events, and on the personalities, talents, and good will of the people involved. In the end, our strength rests not upon laws, but upon an informed, alert, and involved electorate who will elect leaders of good character who are able to straddle that fine line between being a strong leader and being a good team player.

Wednesday, July 15, 2015

Zivotofsky v. Kerry

This is a Supreme Court case decided on June 8, 2015. The issue involved in the case is a rather unusual one for a Supreme Court case.

In 2002 Congress enacted a law mandating that American citizens born in Jerusalem can request that their place of birth be listed as "Israel" on their passports. Since the official position of the U.S. has always been that it recognizes no country's sovereignty over Jerusalem, the State Dept. records the place of birth in such instances not as "Israel", but rather as "Jerusalem". Plaintiff Zivotofsky filed suit to require that his passport reflect the Congressional mandate.

The majority interpreted this as requiring that the official U.S. policy on recognition of a foreign sovereign be changed. Since the Constitution does not specifically say that diplomatic recognition is solely the province of the executive, the majority ruled by analogy from other powers that the executive does have under the Constitution, such as the power to receive ambassadors from other sovereign countries. The court also looked at the historical record, beginning with Washington's recognition of the new government in France following the revolution there, and doing this without consulting with Congress. Based on both of these analytic threads, the majority concluded that the Congressional mandate in question was invalid, because the power to recognize foreign governments rests solely with the executive branch.

This was a 5-4 decision, with the conservatives dissenting, three of them dissenting completely and Thomas dissenting in part (he felt that it was OK for Congress to make its requirement for consular reports of birth abroad, but not for passports).

Roberts' dissent emphasizes that this is the first time the court "accepted a president's direct defiance of an Act of Congress in the field of foreign affairs". Roberts expressed doubt that the president's power of recognition is exclusive. But he then goes on to say that "even if the president does have exclusive recognition power, he still cannot prevail in this case, because the statute at issue does not implicate recognition".

Scalia filed a separate dissent in which he took apart the majority's position more systematically. Scalia notes that Congress has power over passports, due to the clause in the Constitution giving it power to establish a "uniform Rule of Naturalization". This really decides the issue, other than noting that putting "Israel" as the nation of birth on passports for kids born in Jerusalem does not equate to recognition of Israel's sovereignty over Jerusalem. Scalia's conclusion, then, is that "the court's decision does not rest on text or history or precedent".

Some observations:

Scalia vs. Thomas. Scalia and Thomas really sniped at each other in their respective dissents. They called each other by name over and over, in their attempts to specifically refute the other's arguments.

Kennedy again the swing vote. Kennedy wrote the opinion for the majority. This was one of many cases in which the four-member liberal bloc stuck together in this term, which was a very successful one for the liberal side. Part of this success is due to the four sticking together, and speaking with one voice rather than sniping at each other as the conservatives sometimes did. And they were happy to allow that "one voice" to be another justice, as in Kennedy here, with Roberts occasionally filling this role in other cases.

Breyer's position. Breyer filed a two-sentence concurrence stating that he believes the case presents a political question which the judicial system should stay out of. But he joined the majority because "precedent precludes resolving this case on political question grounds."

Roberts' deference to Congress. It has been noted that Roberts was the only justice to defer to the legislative branch on both the Obamacare and the gay marriage decisions. In this case, he again demonstrates that same deference to the legislative branch, which presumably is speaking the will of the people.

So who's right?  This seems to be one of those hard cases that makes bad law. Jerusalem is such a sensitive issue on the international stage, that the majority felt it crucial that the U.S. speak with one voice on that issue. And the majority obviously agrees with the position of the executive branch here, rather than the legislative branch.

The idea that the relatively innocuous act of listing a kid's place of birth as "Israel" on his passport amounts to recognition of Israel's sovereignty over Jerusalem is silly. And, as Scalia points out, if there was indeed any real confusion about this, the president could easily issue a statement clarifying his administration's position on the matter. So, the dissent is legally correct.

Saturday, July 11, 2015

ACLU Turns Its Back on Sweet Cakes

I'm a liberal but I've never been enthusiastic about the ACLU. News recently that it has come out against the free speech rights of the Sweet Cakes owners has helped me to understand the reasons why.

Organizations the ACLU has represented in the past include the Ku Klux Klan and the Westboro Baptist Church. Individuals include Kareem Abdul-Jabbar, Arthur Bremer, David Duke, Sean Hannity, Ted Kaczynski, G. Gordon Liddy, Rush Limbaugh, Oliver North, Sirhan Sirhan, and George Wallace. Really no reason here for a liberal to support this organization.

The Sweet Cakes owners have recently been victimized by an administrative ruling that they are prohibited from talking about their refusal to bake a cake for a lesbian wedding. This is in addition to the absurd amount of $135,000 they have been ordered to pay for "pain and suffering" of the two lesbians. The "talking" which the labor dept. bureaucrat complained of in his ruling was describing what happened to a reporter, and posting a sign saying in part, "This fight is not over. We will continue to stand strong." The bureaucrat decided this was in violation of an Oregon law prohibiting a business from announcing it's intention to discriminate in the future.

So the ACLU is backing these people, right? No, the legal director, a dunce named "Mat dos Santos", wrote a column in the paper explaining that the ACLU is supportive of the ridiculous decision to punish the Sweet Cakes owners. How disappointing.

Thursday, July 2, 2015

SCOTUS Gay Marriage Decision

The Supreme Court Friday issued its long-awaited gay marriage decision. As expected, Justice Kennedy delivered the majority opinion in favor of a right to same-sex marriage for a sharply-divided 5-4 court. The majority opinion is straightforward, and therefore not very interesting. Justice Kennedy, writing for a unified majority (there were no concurring opinions), reasoned that marriage was a fundamental right, and therefore denying that right to a segment of the population was a violation of the Due Process clause of the Fourteenth Amendment. There was also a halfhearted effort to base the decision on Equal Protection grounds, but there was none of the rigorous, step-by-step analysis that is required of Equal Protection decisions.

The dissents were much more interesting. Each of the four dissenters wrote a separate opinion.

Roberts dissent. The main dissent was written by Chief Justice Roberts, who painstakingly took apart the majority's argument point-by-point. The problem with the majority analysis is that it was not based on sound legal reasoning, and therefore, it was easy pickings to be demolished by Roberts' cogent dissent. Certainly the majority opinion contains much good reasoning which would argue in favor of a legislator changing the law in regard to gay marriage, but nothing indicating it was proper for a court to do so.


The Roberts dissent starts out be observing that "for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening". It goes on to say that "The majority's decision is an act of will not legal judgment. The right  it announces has no basis in the constitution or this court's precedent."

Roberts then gets to the details, examining the majority's argument that the court 's prior line of cases on marriage expands the definition of marriage, and this decision is therefore  only a logical continuation of that line.  The line of cases the majority relies on includes a case on granting mixed-race couples the right of marriage, granting prison inmates the right, and granting people who owe child support the right. However, Roberts aptly points out that the basic definition of marriage as between a man and a woman was never in question in any of these cases.

Roberts then examines the legal basis of the majority's position, which is substantive due process. This is clearly a contradiction in terms, and always has been, because"due process" refers to procedure, and not substance. This concept has been severely discredited and has practically died out; yet, the majority resurrects it from the legal cemetery in this opinion.

Substantive due process was first used in the infamous Dred Scott case in 1857. It reached its zenith in the case of Lochner v. New York, which Roberts refers to numerous times in his dissent. Lochner was a 1905 case which dealt with a New York law which limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. The court struck down the law on dubious substantive due process grounds. That decision has come to be regarded by legal scholars as one of the worst decisions in Supreme Court history. The whole substantive due process theory is considered today to be totally discredited, and it is surprising that the court could find no better basis on which to base a decision in 2015 than this discredited 158-year-old joke of a legal concept.

The basic problem with substantive due process is that the court is substituting itself for a legislative body. The court is saying that "we have a better idea of how things should be than the people's elected representatives." This obviously is a huge overreach for the court, and totally improper.

When a court does this type of overreach, it risks the possibility that the executive branch will simply ignore its decision. After all, the supreme court has no ability to enforce its decisions; rather, it must rely on the executive branch to do so. This raises the possibility that the executive branch might do as Andrew Jackson did when the Supreme Court issued a decision in favor of Cherokee rights; Jackson replied, "John Marshall has made his decision, now let him enforce it."  Jackson then proceeded to ignore the Supreme Court decision and to remove the Cherokees from their homeland and relocate them to present-day Oklahoma, over the infamous "Trail of Tears".

Concerning the majority's halfhearted Equal Protection argument, Roberts easily demolishes this position. He says that "the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position....In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States' 'legitimate state interest' in 'preserving the traditional institution of marriage'."


Roberts states that "Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept". Roberts is actually making a very interesting point here; his point is that it is always better for people to work out their problems themselves, rather than have a "solution" imposed upon them from a higher authority.

Any good teacher understands this, and will seek to enable students to work out answers for themselves. The same goes for any good parent; rather than "hovering" around and solving every problem for their kids, a good parent will allow kids to grow by letting them work out their problems for themselves. A good family law judge will also recognize this, and require the parties to go to mediation to work something out they both can live with, rather than having a judge arbitrarily decide issues of child custody and visitation.

Scalia dissent. Scalia was his usual vitriolic, snide, sarcastic self in his criticism of the majority opinion. He writes right at the start about "this court's threat to American democracy". He says that "it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me."

As to the idea that marriage expands our freedoms, Scalia correctly points out that just the opposite is the case; marriage limits our freedoms, not expands them. Scalia states that "Freedom of Intimacy is abridged rather than expanded by marriage....Anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say."

Thomas dissent. Thomas also makes some cogent points in his dissent. His basic point is that "liberty has been understood as freedom from government action, not entitlement to government benefits." He goes on to discuss what "liberty" means. It basically means the freedom from restraint. The 14th amendment can only be invoked if a citizen is being deprived of "life, liberty or property" without "due process of law".  Thus, it cannot apply to this case.

It is interesting that Justices Roberts and Alito are the only dissenters not to join in on any of  their fellow dissenters' opinions. In the case of Roberts, I think this is due to the fact that Justice Roberts has a sincere and honest desire to protect the legacy and reputation of the court. To join in an opinion which contains the vitriol and sarcasm that characterize the opinions of the three right-wingers is just not something he is inclined to do, even though he agrees with the points being made.

Alito dissent. In the case of Alito, it appears that Alito wants to emphasize an issue mostly ignored by his colleagues. That issue is the threat the decision poses to the religious beliefs of those opposed to same-sex marriage.

A few observations are in order.

Democracy.  First, there is the idea emphasized by Scalia of "the threat to American democracy" which he thinks this decision represents. People like Scalia often talk about democracy when it suits their purposes, and ignore it at other times. The fact is, we do not have a democracy, we have a republic.

And thank God we do. We have seen instances all over the world in which democracy is used by the majority to persecute the minorities. Just look at Egypt, for example. The Western world rejoiced in 2011 when Mubarak was ousted as Egypt's ruler. However, the imprisonment of dissenters since then has gotten worse, and under the first democratically elected president, Morsi, the Christian minority was brutally persecuted. Many other examples from everywhere in the world could be given.
We had an idiot president take us into war in Iraq, on the misguided notion that toppling Saddam Hussein would take care of all of Iraq's problems. All it did was topple one ethnic group and substitute another for it as the ruling power. So, instead of the Sunnis persecuting the Shias, we now have the Shias persecuting the Sunnis. And civil unrest is at unprecedented levels. Such are the (rotten) fruits of democracy.

In India, we have a situation in which 24 of the 29 Indian states have regulations prohibiting either the slaughter or sale of cows. And to take this to an absurd extreme, the Indian state of Maharashtra now has a law making eating beef illegal, with violators subject to up to five years in prison!  All this despite the fact that India has a constitution which says quite clearly that India is (supposedly) a secular state and recognizes freedom of religion. Thank God the U.S. is more serious about following its constitution than India is.

The U.S. was settled by people who had been persecuted in their countries of origin, either because of their religion, their ethnic group, or their unpopular ideas. Consequently, our constitution was written so as to make it clear that we would not have a tyranny of the majority in this country. Governmental power was diffused in many ways, such as the separation of powers, which spreads power around among the three separate branches. Similarly, power between the federal government and the states is divided, so that everywhere one looks there are checks on governmental power over its citizens.

So, for Scalia and the other dissenters to use the word "democracy" as often as they do shows a clear lack of understanding of what our system is all about.

Makeup of the court.  As to whether the court can function properly as a "super-legislature", Scalia surprisingly goes into some detail about the personal characteristics of the Supreme Court's current makeup. They are as unrepresentative of the public at large as can be imagined. All nine graduated from either Harvard or Yale law schools. All but one are from one coast or the other, with only one coming from "the vast expanse in-between". Not a single evangelical Christian; in fact, and most amazingly, not a single Protestant! There are six Catholics and three Jews.

Some may rejoice at the superficial diversity currently existing on the court. Consider that the first Catholic wasn't appointed until 1836, the first Jew not until 1916, the first woman in 1981, and the first Hispanic in 2009. But look at where all this politically correct nonsense has gotten us. We now have Catholics (25% of the nation) and Jews (less than 2%) representing 100% of the court. Just think, important abortion cases are decided by a court that is 2/3 Catholic, a church which condemns abortion and denies communion to politicians who support abortion rights. Protestants like myself, along with other religious groups, represent 73% of the population, yet we have zero representation on the court!

Now, if the court were to fulfill its proper role making legal decisions instead of political ones, then we would not want it to be representative of any group except the group of top-flight legal scholars. But when the court gets into this sort of political quagmire, the elitist nature of the court's makeup becomes relevant.

The court's reputation.  Roberts moans that "The stuff contained in today's opinion has to diminish this court's reputation for clear thinking and sober analysis." It is ironic that two of the dissenters (Scalia and Thomas) were part of the decision which by far did the most to damage the court's reputation. That decision was the atrocious Bush v. Gore decision in 2000.

What makes Bush v. Gore so atrocious is that the constitution gives the state legislatures the right to choose electors any way they want to. It does not even have to by a vote of  the people (in contrast to the election of Senators, which under the 17th amendment must now be chosen by popular vote).  In light of this, for the federal branch of government to interfere in how Florida was choosing its electors is downright shameful. And the hypocrisy of the right-wingers knows no bounds,. These are people who supposedly are so big on states rights and preserving the federalist nature of our system. And yet, this are the same group which interfered in a function which the constitution grants to the state of Florida to determine its electors for president.

After her retirement, Justice Sandra Day O'Connor acknowledged the damage done to the court's reputation, and admitted that taking the case was a mistake. Alan Dershowitz minced no words when he stated: "The decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath."

The constitution doesn't mention same-sex marriage. This is no doubt the lamest argument of all, made by Alito at the start of his opinion, when he says that "The Constitution says nothing about a right to same-sex marriage." There are two basic reasons why this argument is so lame.

First, the constitution doesn't mention a lot of things. There is no mention in the constitution of automobiles, of trains, of planes, of telephones, of the internet, and one could go on and on. Just because the constitution does not mention these things, doesn't mean that the constitution has no application to them.

But the real problem with this type of analysis is that it presumes that the government is all-powerful. That is, it presumes that "We the people" have no rights or freedoms except those specifically granted by the constitution.

This stands the constitution on its head. Our system, unique in the history of the world, makes the people sovereign, not the governmental rulers. The government only has the power which "We the people" have granted to it. Therefore, the correct inquiry is not "Does the constitution grant a right to same-sex marriage, but rather,  "Does the constitution grant the power to the government to deny same-sex couples the right to marry?".

A reading of the Bill of Rights makes it clear it is not intended to be a complete list of rights and freedoms enjoyed by the people. Thus we have the 9th amendment, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". And the 10th amendment, saying that "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This analysis points the way to what a proper basis for the court's ruling would have been. Marriage is a fundamental right, as even the dissent acknowledges. Nothing in the constitution gives the government the power to deny that right to a certain class of adult citizens. Yes, the power to regulate marriage is given to the individual states, but the states cannot exercise that power in a way that discriminates against a certain class of citizens. Basic freedoms must be allowed to flourish, even if not specifically mentioned in the Bill of rights.  QED