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Publick Occurrences 2.0

January 27, 2012

Michael Hattem, “Instructions vs. Pledges”

Filed under: Common-Place,Constitutional history,Guest posts,Revolution — Jeffrey L. Pasley @ 6:13 pm

While recently reading about the proliferation of right-wing interest group pledges, I was reminded of an article by Ray Raphael from the October 2008 edition of Common-Place entitled, “Instructions.” In that piece, he described how pre-revolutionary Massachusetts townships gave specific instructions to the delegates they sent to the Assembly, General Court, and later revolutionary Conventions. Though I generally am not very sympathetic to “neo-progressive” interpretations of early America, I nevertheless found myself agreeing with Raphael’s characterization of colonial instructions as a strong example of “popular government.” At the same time, I was increasingly frustrated by the Congressional obstruction perpetuated by the right-wing pledges.

I began to wonder: “Are those right-wing pledge requests fundamentally the same as the townships’ instructions?” That is, are the pledges a similarly popular, democratic exercise? If indeed they were, it seemed my agreement with Raphael was effectively forcing me into a position from which I could not criticize the right-wing use of pledges without being a blatant hypocrite. After all, if there really was no fundamental difference between the instructions and the pledges, I could hardly think the former praiseworthy and the latter deserving of condemnation without being intellectually disingenuous.

Following the rise of the Tea Party in 2009, right-wing interest groups have increasingly sought to bind candidates to their agenda through the signing of pledges. The most well known pledge is Grover Norquist and Americans for Tax Reform’s, “Taxpayer Protection Pledge,” in which candidates and politicians promise not to vote for “any” tax increase.  Other interest groups saw how successful the tactic has been for Norquist and his lobby and over the last twelve months have begun doing the same thing. There is the “Marriage Vow” from an Iowa group called The Family Leader. Its pledge begins, “Faithful monogamy is at the very heart of a designed and purposeful order—as conveyed by Jewish and Christian Scripture, by Classical Philosophers, by Natural Law, and by the American Founders….” There is also the Cut, Cap, and Balance Coalition and The Susan B. Anthony List’s 2012 Pro-life Presidential Leadership Pledge, which “asks declared presidential candidates to commit to key pro-life goals if elected to the presidency in 2012.”

Both left-leaning and mainstream media outlets have voiced criticisms of these pledges. Alex Altman, in Time Magazine, called them “gimmicks.” He argued that the effect of signing a pledge is “the equivalent of voluntarily slipping on a straitjacket” because “it denies politicians the flexibility needed to meet unforeseen challenges.” Similarly, an editorial in The New York Times, entitled, “Signing Away the Right to Govern,” declared “each pledge [Republicans] sign undermines the basic principle of democratic government built on compromise and negotiation.” Indeed, even some Republicans have begun to quietly show some reservations.

A subsequent reading complicated matters further by suggesting a possible eighteenth-century parallel. In Eric Nelson’s recent William and Mary Quarterly article, “Patriot Royalism: The Stuart Monarchy in American Political Thought, 1769-1775,” the author argues that the patriots’ assertion that the colonies fell under the jurisdiction of the Crown rather than the Parliament was actually a shift to a far-right Tory position concurrent with the previously hated Stuarts’ colonial policy of the previous century. He asserts that the circumstances and the failures of their own previous ideological argument forced Americans into adopting a position completely alien to their own longstanding political culture. In the process, he creates a strange, new ideological arc for colonists during the imperial crisis from Whig to radical Tory to republican.

With that article in mind, I re-read a quote in Raphael’s piece from Thomas Hutchinson, the deeply despised royal governor of Massachusetts and arch-loyalist, who, in response to the townships’ practice of instructing delegates, said:

“To hold each representative to vote according to the opinion of his town . . . contradicts the very idea of a parliament the members whereof are supposed to debate and argue in order to convince and be convinced.”
When I compared that quote to the criticisms above and thought about the ideological dynamic of Nelson’s article, I began to wonder whether a similar dynamic was occurring regarding criticism of the pledges. Was my desire to criticize the pledges forcing me into temporarily adopting a far-right position far like the colonists’ critique of the sovereignty of parliament?

On a purely tactical level, there seem to be parallelisms between the colonial instructions and republican pledges. Yet, their historical contexts vary so greatly that any sort of “fundamental” comparison is highly problematic. Following the upheavals of earlier imperial encroachments, the Coercive Acts of 1774, in part, ended popular election of the Executive Council and limited local town meetings to one per year. In such a revolutionary context, instructions became a mode of reasserting the local political role colonists had exercised for generations and translating it to the larger arenas of provincial and imperial politics. Despite the persecution complex and conspiratorial mode of thought that has come to define the far-right of the early twenty-first century, they do not find themselves in anything remotely like a revolutionary context. Despite the Tea Party rhetoric, their traditional role in government is not under any threat, though their influence may be.

In addition to the historical contexts, the motives of colonists and contemporary right-wing lobbies are equally different. Rather than defending their inherited political culture, right-wing interest groups, along with their strong anti-government message, are attempting to paralyze the legislative process in the hopes of undermining government working for others.

I’m interested to know how the readers of this blog would address these two questions. Are colonial instructions and right-wing pledges fundamentally similar democratic processes? In forming that judgment, should one give priority to the tactic itself or to the motivations behind the tactic? Finally, if there are fundamental similarities, are those who criticize it adopting a traditionally far-right position in order to do so? If so, is that just crass opportunism or is it refreshing, in our current political culture, to see commitment to larger goals outweigh commitment to a narrow ideology?

Michael Hattem is currently a graduate student at Yale University. He received his BA in History from the City University of New York. Hattem focuses on eighteenth-century American political culture, intellectual history, and print culture, and he is also interested in the history of the book and the Enlightenment in America. 

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The Edge of the Woods

Filed under: Common-Place,Jeff Pasley's Writings — Jeffrey L. Pasley @ 4:46 pm

Thanks so much to Joe Adelman for increasing the activity level around this place while the proprietor works out a few of his issues. I can’t say enough about what a great job Joe has done. From Joe, I have learned the value of Twitter and also that it actually IS possible to get a conversation going here that does not involve robots trying to spam Tea Partiers. (I dare not link to the post from 2009 that the spambots love so much.) I also hope everyone saw that the Atlantic website picked up one of Joe’s posts. Congratulations, Joe, and Common-Place.

In other news, my long-awaited (by the publisher) manuscript on the election of 1796 – a.k.a. The Epic Showdown That Created America! – is finally out of my hands for a while, though there are probably a few trees to go before I find the exit to the woods. Currently I am wandering the Forest of College Financial Aid, which is entered through the Valley of Early Taxation. However, we have big plans for the  future here, so keep reading. John Fea, your plea has been heard, and appreciated!

One of my plans, and hopes, is continue bringing in guest posters and permanent guest posters to push Publick Occurrences toward being the sort of group blog that was always intended. (The old guest posters are welcome back any time as well.) Next up, look for a guest post from Yale graduate student Michael Hattem.

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January 25, 2012

Should we remember the War of 1812?

Filed under: Early Republic,Historic sites,Joe Adelman's Posts — Joseph M. Adelman @ 3:05 pm

I had an interesting discussion on Twitter this morning about the War of 1812. It started when I linked to an article in The Wall Street Journal on the difficulties faced by those supporting bicentennial celebrations. Rather than restate everything that was said, I created a Storify that recounts the conversation:

View the story “What Deserves Commemoration?” on Storify

I’m probably not the best equipped to make the case in favor of defending the War of 1812, but I’ll take a stab at a few points that make it worth commemoration.

  • It established that Canada would remain British. At least from the early 1770s, when the Boston Committee of Correspondence tried to entice merchants in Quebec and Montreal to join their network of dissidents, Americans had their eye on including Canada in the Union. A failed invasion in the winter of 1775-1776 put an end to that dream during the Revolution, but the question remained open into the Early Republic. The stalemate in the war pushed that possibility out of the realm of reality and forced instead treaty negotiations to determine the exact nature of the border. Alan Taylor in The Civil War of 1812 makes a similar argument that the key to the was is in the battles between Americans and Canadians across the border.
  • It established the United States’ right to exist. Perhaps it is a hackneyed or outdated view of American history, but it seems to me that even in stalemate the United States blunted a threat to its national sovereignty in defending itself against naval harassment by the British.
  • The War of 1812 was an event of important significance in several locales. Baltimore’s Fort McHenry, site of the immortalized bombardment in September 1814, still guards the harbor and is a point of local pride. Upstate New York  and Michigan were shaped by the war and home to many battles. And, as both the Journal and Taylor point out, the war was of great significance for Canadians. Whether or not a national commemoration takes place, surely these places will remember the war in their own ways. Maryland made the war the centerpiece of its default license plates in 2010 (to run through 2015).

On the other hand, I’m not a War of 1812 expert, and I wouldn’t be surprised if I have some of this wrong. So my open question is, should we be funding bicentennial celebrations of the War of 1812? And beyond that, what should be the standard for selecting what to commemorate on a national level?

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January 19, 2012

“By securing the copies”

I’ve been going in circles about copyright, intellectual property, and the role of history in debating them. I started a post yesterday about the protests against SOPA and PIPA, in which major Internet sites (including Wikipedia, Google, and Wired.com, among others) and countless personal sites have shut down or curtailed their operations to protest the two bills currently being considered by Congress. Each would grant new powers to the federal government to monitor and control information posted online, including the power to block domain names based on copyright infringement claims.

But before I could get very far on that post, I read of the Supreme Court’s 6-2 decision in Golan v. Holder that allows the federal government to take works that had moved into the public domain and place them back under copyright protection (Justice Kagan recused herself, presumably because the case was working its way through the courts while she was Solicitor General).  The logic of the majority, by the way, is to require the federal government to meet obligations it made to hew to international copyright treaties to which the United States is a signatory, but of course the decision’s impact goes far beyond foreign works.

If you haven’t yet read the Supreme Court’s decision in Golan v. Holder (available here in PDF), take a look. The majority opinion, authored by Justice Ginsburg, is, as Yoni Appelbaum (@Yappelbaum) noted on Twitter, a “narrowly legalistic opinion for the Court.” It used historical evidence, to be sure, going back to the original 1886 Berne international copyright convention. But it delved no further, and did not explore the deep background of copyright law in the United States. The Breyer dissent (concurred by Alito), by contrast, digs all the way back in Anglo-American jurisprudence to the earliest copyright statutes in Great Britain (in 1710). Breyer has a very good account of the development of copyright in the eighteenth century, both in Britain and America. Here’s a representative paragraph:

Yet, as the Founders recognized, monopoly is a two­ edged sword. On the one hand, it can encourage produc­tion of new works.  In the absence of copyright protection, anyone might freely copy the products of an author’s creative labor, appropriating the benefits without incur­ring the nonrepeatable costs of creation, thereby deterring authors from exerting themselves in the first place.  On the other hand, copyright tends to restrict the dissemina­tion (and use) of works once produced either because the absence of competition translates directly into higher consumer prices or because the need to secure copying permission sometimes imposes administrative costs that make it difficult for potential users of a copyrighted work to find its owner and strike a bargain.  See W. Landes & R. Posner, The Economic Structure of Intellectual Proper­ty Law 68–70, 213–214 (2003).  Consequently, the original British copyright statute, the Constitution’s Framers, and our case law all have recognized copyright’s resulting and necessary call for balance.

Copyright has always been meant to protect the rights of producers — though crucially in the eighteenth century, copyright usually resided with publishers rather than authors. The Statute of Anne, in fact, was part of a regime that protected the monopoly of the Stationers’ Company of London. As Sarah Arndt points out, the monopoly was limited to England; Ireland (and Dublin in particular) became the publishing piracy capital of the British Atlantic. The colonies also lacked firm copyright law, but almost no printers (which is to say, Benjamin Franklin and nobody else) had the capacity to publish books; they imported from Britain and Ireland (see Richard Sher’s Enlightenment and the Book and volume 1 of A History of the Book in America, The Colonial Book in the Atlantic World for full details).

As it happens, the eighteenth century history of copyright and censorship provides two good case studies for efforts to protect artistic productions and government limitations of publications.

First, there are unintended consequences even to well-meaning legislation in the realm of publications. For a moment, take the British view of the Stamp Act, what would have been the largest effective restriction on print publication ever in British colonial America. Coming out of the Seven Years’ War, Britain was saddled with unprecedented debt, a new and very young king, and an unstable domestic political environment. To pay down the debt, Parliamentary ministers explored all sorts of options; asking colonists to pay a little more in taxes seemed unproblematic to them (for obvious reasons). England’s printing trade had operated with a Stamp Act since 1712, and several of the colonies (notably New York and Massachusetts) had passed temporary stamp taxes to fund the war effort in the 1750s. What could possibly go wrong?

Well, printers (as I argue in my research) saw it as a massive threat to their businesses and many colonists saw it as a threat to free and open political communication. Printers turned their publications into forums for protest, publishing essays against the Act, following protests, and organizing to lobby for its repeal and nullification. When November 1, the planned effective date of the Act, rolled around, presses across the colonies went silent in protest. Some printers, like William Bradford, publisher of the Pennsylvania Journal, melodramatically eulogized their newspapers. Merchants organized boycotts of British goods. And in thirteen of Britain’s colonies, the law was nullified (it took effect in Canada and the West Indies). By spring, Parliament repealed the law (with an assertion of its power to boot). I’m not predicting that there will be a second American Revolution, of course, but if Congress passes a tax on china, glass, and painters’ colors in a few years, all bets are off.

The second lesson is that copyright law in the United States originated in an environment that envisioned a free market for foreign works. Congress passed a copyright law in 1790 to cover new works in the United States—and as Breyer and Alito note, it did not cover foreign works. Noah Webster pushed hard for the law because of the massive success of his speller. He had spent years  traveling through the states trying to sew up copyright in each to protect his publication from piracy. For foreign works, the standard remained that whoever got there first stood to make a profit. For the most popular author of the early republic, Walter Scott, Mathew Carey made a deal with Scott’s London publisher to get access to the text first. Was there a better solution to solving the question of works copyrighted abroad? Almost certainly.

Putting modern debates into context is important. Laws restricting the circulation of information and publications have not been warmly received. Copyright has been an instrument to limit that circulation. And lastly, it was never intended to be permanent or retroactive. (Though, like many others, I doubt I will live to see the day when Mickey Mouse (first copyrighted in 1928) enters the public domain.) Understanding the background of copyright law and censorship helps us to understand both the law and the protests against it.

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January 12, 2012

I Missed Alexander Hamilton’s Birthday

Filed under: Conservatives,Founders,Religion — Jeffrey L. Pasley @ 5:27 am

This makes sad, given how he is the Founder of American Conservatism and all, with his boy Mitt Romney doing so well. Anyway, here is Hamilton explaining to fellow Federalists how they could better take advantage of Christianity to give their party a popular appeal and an emotional charge that it sorely lacked:

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