Attendees at the 1952 Republican National Convention, Chicago, IL (LOC)

Republicans and Democrats are gearing up to nominate their presidential candidates. We can be almost certain that there won’t be many surprises.

American political conventions haven’t always been so predictable. Before they became scripted for TV, conventions were where some of the most critical policy questions were resolved, and where political careers were made or ruined. This week, we venture into the back rooms, chaotic halls, and streets where these dramas unfolded. We consider the radical roots of the convention ritual itself, and explore the ways that ritual was mainstreamed. Over the course of the hour, the History Guys hear the voices of anti-corruption crusaders in the 1820s, women’s rights activists at Seneca Falls, and civil rights workers in 1964, all of whom turned to conventions as venues for change. Through it all, we ask how well American political conventions have lived up to their promise of representing constituents back home.

Guests Include:

• Lloyd Snook, lawyer and former Virginia delegate to the Democratic National Convention

• Michael Holt, Professor Emeritus of History at the University of Virginia

• Congresswoman Eleanor Holmes Norton, Washington, D.C., delegate to the U.S. Congress

• Dr. Leslie McLemore, civil rights activist

• Nancy Hewitt, Professor of History and Women’s Studies at Rutgers University

• Richard Bensel, Professor of Political Science at Cornell University

Further Exploration

• Resources galore! Peruse a list of outside sources compiled by the BackStory team to offer a more complete picture of the unconventional history of conventions in the United States, and consult the bibliography of sources used in the making of the making of this episode.

• Listen to individual show segments.
• See the photograph of “sleepy delegate” Lloyd Snook.

Even Further

• See the listener discussion that helped shape this show.

• See a listing of the music used in this episode.

Political scientist Jacob Hacker, author of the “public plan,” uses history to explain how we wound up with a system so different from the European model, and why lobbyists hold so much sway over health policy.

Excerpted from: Body Politics: A History of Health Care

The Memory Palace‘s Nate DiMeo tells the story of how inoculation first came to the New World.

Excerpted from: Body Politics: A History of Health Care

P. Onuf: This is “BackStory,” with us, the American History Guys. I’m Peter Onuf, 18th century guy.

E. Ayers: I’m Ed Ayers, 19th century guy.

B. Balogh: And I’m Brian Balogh, 20th century history guy. [music]

Tape: “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.” [gavel]

P. Onuf: For more than two centuries, that’s pretty much how it sounded each time the United States Supreme Court is called into session. Normally, the gavel gets hung up for the summer but this year, the beginning of summer signaled the kick-off of another Supreme Court-related tradition. This one doesn’t come around every year but when it does, it can get a bit ugly. I refer, of course, to the strange spectacle that is the Senate confirmation hearing.

Tape (Robert Bork): “I think Senator I not only wrote that. I still think I was right and I’ll discuss it with you. For one, we might start off by observing that the Senate of the United States would be an unconstitutional body if that rationale of one-man/one-vote were applied here.”

Tape (Sen. Ed Kennedy): “Well, that’s entirely different as you’re too good a—”

E. Ayers: That was erstwhile Supreme Court nominee Robert Bork in 1987 in the confirmation hearing that set the stage for all confirmation hearings to follow. His nomination went down in defeat, making it clear to all future nominees that when answering these senators’ questions, less is more. Deference is the name of the game. Of course, there had been exceptions.

Tape (Clarence Thomas): “This is a circus. It’s a national disgrace. It’s a high-tech lynching for uppity blacks who in any way deign to think for themselves.”

P. Onuf: Remember that one? Justice Clarence Thomas in 1991 responding to allegations about his relationship with Anita Hill. As I said, these hearings can get ugly. Here’s Senator John Cornyn last summer grilling then-nominee Sonia Sotomayor about her infamous speech to law students from years earlier.

Tape (John Cornyn): “You said a wise Latino woman would reach a better conclusion than a male counterpart. What I’m confused about, are you standing by that statement or are you saying that it was a bad idea and you—”

E. Ayers: Now, as predictable as all this partisan grandstanding has become, it can be easy to forget that this whole tradition, as Peter called it, is a relatively recent invention.

Tape (Henry Abraham): We never had a nominee appear before a Senate committee until 1925 when the Court was one hundred and fifty years old or close to it.

B. Balogh: That’s Henry Abraham, a Professor of Government Emeritus at the University of Virginia. Back in 1974, seven years before the hearings started being televised, Abraham published a book that detailed every Supreme Court nomination that there’s even been, successful or otherwise.

Tape (Henry Abraham): We’ve had a 150 specific full-blown nominations. Of those, 30 were rejected or not acted upon. That’s, my math isn’t very good but, that’s considerable.

B. Balogh: Okay. I know what you guys are thinking. You’re probably going to point the finger at my century and blame something like TV for making the nominations so contentious.

E. Ayers: That makes sense to me.

B. Balogh: Yeah. Well, before you do that, Ed, let me just point out that only 5 of those 30 failed nominations took place in my century, the 20th century, meaning that you, Mr. 19th Century Guy, are on the hook for this one.

E. Ayers: Well you know, when you are the center of American history, you’re on the hook for a lot of things, but that is an interesting question I have to admit, Brian, that we would think, judging from today’s headlines, that things are more acrimonious now than they’ve ever been but, in fact, you’re telling me that that’s not the case, so that’s what we’re going to be doing today. We’re going to be looking at the range of acrimoniousness. [laugher] What we’re also going to be doing is trying to figure how the criteria for Supreme Court Justices have changed over the years and on the more cosmic level, is the whole process democratic enough?

B. Balogh: Later on, we’re going to hear from a few other scholars of the Court and take some listener calls but, first, we’re going to return to Henry Abraham. He told me that in the 21st century those senators really have come to dominate the process.

Tape (Henry Abraham): They wanted to see the candidates. Now, they wanted to see Brandeis. That was 1916, first Jew to be nominated.

B. Balogh: Is that why they wanted to see him?

Tape (Henry Abraham): That was part of it, but not only that. There was also he was a very successful lawyer and often was a lawyer for the underprivileged but also often for certain trusts and corporations. They wanted to see him and he said, no. Brandeis told Wilson, “I am honored by your nomination but I cannot— I will not defend or advance myself.” And Wilson accepted that. After Brandeis, they waited until Stone, 1925. That was nine years later. He appeared and he sailed through. Then there was a hiatus. Well, in 1939, Douglas who still holds the longevity championship, 36½ years, Douglas wanted to be interviewed and he parked himself in front of the door. [laughter]

B. Balogh: He asked to be interviewed?

Tape (Henry Abraham): Yes, but they didn’t want to hear him. They didn’t want to see him. It was not until John Marshall Harlan, II, that they formally institutionalized the absolute required presence of nominees in front of the Senate Judiciary Committee.

B. Balogh: That’s Henry Abraham, author of Justices, Presidents, and Senators: A History of U.S. Supreme Court Appointments from Washington to Bush II. You can listen to more excerpts from my conversations with him at backstoryradio.org.

E. Ayers: So, Brian, Henry Abraham says that the confirmation of John Marshall Harlan, II, was really the beginning of the modern confirmation process. Now, that was in the ‘50s?

B. Balogh: Yes, that’s 1955, immediately in the wake of Brown v. Board of Education where the Supreme Court unanimously ruled that Jim Crow segregation in the South was unconstitutional. This rang alarm bells for the Senate Judiciary Committee, especially those southern Democrats on that Committee and it had very little to do with Marshall specifically.

E. Ayers: Right, right.

B. Balogh: They were just making a statement—we are going to vet everybody very carefully and while I don’t think they use the term “litmus test” the way we do today, in fact, they were trying to figure out how is this person going to come down on intervening in things like states’ rights.

E. Ayers: That’s very interesting, Brian. We see that people don’t really care if John Marshall Harlan, II, had this kind of personality or that. I wondered, did people care back at the very beginning, Peter, who these people really were. Did their personalities matter?

P. Onuf: Well, not personalities, Ed, but who was appointed to the Court was incredibly important. You know, at the beginning, the real question was would the Union survive and the big struggle over the ratification of the Constitution hinged on whether or not the new regime could establish its own independent court system and what kind of conflict would there be with state courts and would the federal government be able to hold its own on the ground of the respective states. That was the big issue, so you needed justices who had political standing in their states. They didn’t have to be great lawyers. They didn’t have to pass muster with a bar association that didn’t exist yet. What they did have to do was have that profile of being a locally recognized statesman, somebody who had a reputation.

B. Balogh: So, you’re saying the Court had so little authority that it needed to be filled out with men who brought authority to the Court.

P. Onuf: Yeah, absolutely. And one of the reasons why is what we call circuit riding. Circuit riding was the product of the Judiciary Act of 1789 which established the Supreme Court and set the number of justices at six. That Act also established three circuit courts and set the number of judges for them at exactly zero. [laughter] The idea was that circuit courts would be manned by two Supreme Court justices.

B. Balogh: Kind of double-dipping.

P. Onuf: Yeah, right. And a district court judge. These districts were enormous. There were three of them in the entire country at first; there were more later on, but that meant that justices were on the road all the time, really logging the miles and killing the horses and most of them, understandably, hated circuit court riding which is entirely understandable as Supreme Court historian Maeva Marcus explained to me. She told me that when justices were on the road, they weren’t even allowed to stay with their friends. They were required to stay in public accommodations.

Tape (Maeva Marcus): Now, when we say public accommodations—

P. Onuf: Yes, this is not 4-star hotels.

Tape (Marva Marcus): No, it was not a 4-star hotel. They were mostly horrible. They slept in beds with multiple people. One other thing the Judiciary Act had that the Justices had to decide their cases according to the law of the states. It means you have to know the law of 13 states and it was very very difficult. It was a lot of work.

P. Onuf: So, they worked really hard. They stayed in miserable accommodations.

Tape (Marva Marcus): They did.

P. Onuf: Why would anybody want to be on the Supreme Court?

Tape (Marva Marcus): That is a very good question and the reason people wanted to be on the Supreme Court was because next to the President and the Vice President, the Justices were the highest paid federal employees.

P. Onuf: It was money? [laughter]

Tape (Marva Marcus): Money and also prestige. There’s no question, but also the Justices had to pay all of their expenses from their salaries. There was no expense account.

P. Onuf: So, they lived as cheaply as they could.

Tape (Marva Marcus): Well, they ended up, frankly, with almost no money when they were finished with these circuits.

P. Onuf: So, what you’re saying is that the first Justices of the Court had poor judgment. [laughs]

Tape (Marva Marcus): Well, they didn’t know. No one knew.

P. Onuf: Right.

Tape (Marva Marcus): There had never been a continental court in the United States. This was a novel institution, but it also was the only institution where normal people, regular folk, could actually have contact with a federal official. You would occasionally see your congressman. There was not, as you know, the kind of campaigns we have now, but the courts came to the states. The towns vied with each other to be the site of the meeting of the Court and the Justices were used to talk about the new government.

P. Onuf: Maeva Marcus is the Director of the Institute for Constitutional History. She edited the 8-volume Documentary History of the United States Supreme Court, 1789-1800. We’ll post the full version of my interview with her on our website, backstoryradio.org.

B. Balogh: You know, Peter, I think you have a news flash there for the “Style” section of the Post and the headline is something—politicians have been sleeping with multiple people for centuries. So with all this circuit riding, all this jockeying around, [laughter] how did that come to an end. Was it the arrival of the carriage trade? Better roads? Or did something else change this?

P. Onuf: Well, actually, they weren’t riding horses anymore, Ed, because, believe it or not, it was in Brian’s century that the practice finally ended. That’s in 1911.

E. Ayers: So, let me get this right. Just at the very moment when they could’ve driven, they stopped doing it.

P. Onuf: Yeah. [laughter] And I want to assure you that these guys had rooms of their own by 1911. [music]

E. Ayers: And who says there’s such a thing as progress?

B. Balogh: It’s time for a quick break. When we get back, we’ll field a few questions from listeners on the phone.

P. Onuf: More “BackStory” coming up in a minute. [music]

[music]

P. Onuf: This is “BackStory.” I’m Peter Onuf, historian of the 18th century.

E. Ayers: I’m Ed Ayers, historian of the 19th century.

B. Balogh: And I’m Brian Balogh, historian of the 20th century. We’re talking today about how the Supreme Court nomination process has changed over the course of all three of our centuries. For the past few weeks, we’ve been soliciting your comments on Facebook and backstoryradio.org, and our producers have invited a few of the people who weighed in there to join us on the phone.

P. Onuf: First up today, we have Nicole calling in from Shreveport, Louisiana. Nicole, welcome to “BackStory.”

Caller (Nicole): Thank you.

P. Onuf: What’s on your mind today?

Caller (Nicole): Well, I’m wondering, in light of President Obama’s successful nomination of Justice Sotomayor to be the first Hispanic justice, I’m wondering how much attention has been paid over the years toward using the nomination process to do something historic as opposed to just focusing on the balance of the Court.

P. Onuf: Great question. What would you say about that, Brian?

B. Balogh: Well, before I take over, I am curious to know. Nicole, I’m the 20th century guy and, yes, certainly starting in the 1960s with the appointment of Thurgood Marshall, the first African American on the Court, we have measured the historicity—that’s not really a word—

P. Onuf: No, it is.

B. Balogh: Is it?

Ed Ayers: But it sounds almost like one.

B. Balogh: [laughs] Almost like one. We’ve measured historic moments in terms of race and ethnicity, but I am curious, what made for historic appointment in the 18th century? Well, the first Supreme Court, that must’ve been historic, Peter.

P. Onuf: Yeah, just to get one. The big thing in the early period, Brian, is sectional balance, to achieve sectional balance and I think it says a lot about the nature of the United States that in the early years, the great concern was binding the Union together and when the Constitution was ratified, there was a big concern that if it weren’t ratified, that the Union would split up into two or three parts, so there was a even a proposal for a plural executive with each section of the country represented by a president, if you can imagine that. So, I’d say that the short answer on the historic changes is that we’ve moved from a genuinely federal system when we worried about sectional balance representing different parts of the country to a much more demographic racial representativeness which is now the model.

E. Ayers: But, wait, you left out my century.

B. Balogh: It actually did split up during your century, Ed.

P. Onuf: Did something happen in the 19th century, Ed?

E. Ayers: Well, you know, every once in a while, but the thing here is that the sectional balance remained of central importance, which I’m guessing remained the case for the first half of the 20th century, too, Brian, right?

B. Balogh: I think that’s right.

P. Onuf: Yeah.

E. Ayers: Yeah? But then overlaid over that was partisan and so before we had ethnicity and race and gender, we had Democrats and Republicans and Whigs.

B. Balogh: Well, I want to pick up on something that both of you said actually, so Nicole Peters said that in the early days of the Union, that Union couldn’t be taken for granted, so we really had a focus on appointments that would help bind the Union together and Ed talked about the political parties and I think today because we do take the Union for granted, we don’t have to worry about holding together the nation and because the parties don’t do the kinds of the jobs of bringing together these odd coalitions—

P. Onuf: Yeah, good point.

B. Balogh: Of southern Democrats and northern Irish people, presidents kind of need to do that on a retail basis. They need to pick out candidates who symbolically will help represent groups that they feel perhaps are under-represented and that’s one of the things that leads to the kind of ethnic and religious nominations that you’re talking about today. But the point I want to make is that we can do that because we assume that the nation’s going to be held together.

P. Onuf: So, the real question is what’s being represented on the Court throughout American history and it’s a fascinating barometer of how we think of ourselves as a people.

E. Ayers: Well, you know, Nicole began with a question about historic appointments. It strikes me that we may be at the beginning of a historic moment to put historians on the Supreme Court.

P. Onuf: You know, Ed, I was thinking I didn’t want to be the first to say it. [laughter]

Caller (Nicole): That’s great.

E. Ayers: If you just put three of us on at one time—

P. Onuf: And get rid of everybody else—

E. Ayers: We could address most of the problems—

B. Balogh: You want to know original intent. We’ll tell you what original intent was.

P. Onuf: We have the lower courts making phone calls to “BackStory.”

Caller (Nicole): There you go.

P. Onuf: Okay. [laughter] Thanks for calling.

Caller (Nicole): Thank you so much. Bye bye.

P. Onuf: We have another phone call and it’s from Catherine in Baltimore, Maryland. Catherine, welcome to “BackStory.”

Caller (Catherine): Thanks so much.

P. Onuf: What’s on your mind today?

Caller (Catherine): So, I’d heard a piece on “Morning Edition” discussing the importance of the religious background of the next Supreme Court nominee and I was wondering how much that actually matters.

E. Ayers: Catherine, are you asking how much does it matter politically in the nomination process itself or how much does it matter substantively once these folks are on the Court?

Caller (Catherine): I think substantively once they are on the Court is the more important question, but the question that’s going to drive everything is how much it matters politically, right?

P. Onuf: Right.

B. Balogh: Yeah. Well, I certainly think that it matters tremendously or it has mattered when it’s a first, right? So, you know, when we’re talking about Justice Brandeis, for instance, and he’s Jewish, this is something that is a—

P. Onuf: It’s a big deal.

B. Balogh: It is a big deal. It’s very contested. I’m not sure who the first Catholic on the Court is. Do you know, Catherine?

Caller (Catherine): I don’t.

B. Balogh: We get most of our information from our callers.

Caller (Catherine): [laughter]

P. Onuf: Wasn’t it Roger Taney? I mean, I believe he was a Catholic.

E. Ayers: That’s right, Peter. Roger Taney was in fact the first Catholic Supreme Court Justice, 1836, and what’s interesting about that is that it really wasn’t controversial so much because of his religious background but rather because that he was seen as sort of a political crony of Andrew Jackson. He’d been rejected for a Cabinet position before. Jackson was kind of sneaking him in at the end and people talked about how stooped and sallow he was and so ironically, even though it was the first and even though anti-Catholicism would soon rage throughout the country, in 1836, it wasn’t quite the matter it would be later because immigration from Ireland, in particular, had not really peaked at that point, so it’s kind of under the radar, if they’d had radar in the 19th century.

B. Balogh: That’s so interesting, Ed, because today we think, well, you know, if you get enough Hispanics in the country, then you need a Hispanic justice to represent them, but you’re saying that being Catholic wasn’t that big a deal for Taney because there weren’t all that many Catholics.

P. Onuf: And they were Americanized, too. They were very conscious about the environment they were living in and working in and they had to overcome a knee-jerk prejudice from the Protestant majority that they were taking their cues from the Pope and that is a fundamentally anti-Republican, anti-Democratic idea that this foreign potentate was calling the shots in America. That’s when religion really had a political aspect. I don’t think people worry about the Pope much anymore, but that used to be a major thing.

B. Balogh: Yeah, although Peter, I will say given the huge significance of Roe v. Wade and given the church’s position on abortion, each appointment who is Catholic is certainly viewed with more scrutiny on the question of abortion.

P. Onuf: No, I agree with that, but I would say, Brian, that the real question of faith, to put it in these terms, is does the nominee really believe in the Constitution. In a way, you have to get your cues from the constitutional text and it’s not going to be that you read the Constitution in the light of your personal values.

B. Balogh: Yeah.

Caller (Catherine): Fascinating.

B. Balogh: Thank you very much for calling, Catherine.

Caller (Catherine): Thank you so much.

Ed Ayers: Bye bye.

Caller (Catherine): Bye.

[music]

P. Onuf: The question of the religion of the nominee really raises the larger question of character and character has become the currency of the realm in American politics. Generally, in some ways nominees to the Court are interchangeable with political candidates and we want to know who they really are and in a way, there’s a big tension, I think between the mystery that’s supposed to surround the Court, the majesty of the law. We look up to the law. This is the truth, at least within our system, and the idea of knowing what makes the justices tick.

E. Ayers: You know, all this discussion reminds me that what counts as character has changed over time. It’s not merely your religious faith. Sometimes, it was really how good a party man you were. I mean, if you were too independent-minded, you must not really be all that reliable and that brings to mind the case of one particularly interesting justice from the end of my century, John Marshall Harlan, appointed to the Court in 1877 by Republican President Rutherford B. Hayes, is best remembered for his lone dissent in Plessey v. Ferguson, the 1896 case that upheld southern segregation laws and in that dissent, Harlan declares that “the Constitution is color blind.”

Now, that’s surprising considering that Harlan grew up in a Kentucky slaveholding family, ran for office in the 1850s on a pro-slavery platform and was not known as a particular advocate of black rights. It was this fundamental contradiction that inspired historian Linda Przybyszewski to write a book about Harlan. It turns out, his life was full of contradictions. Listen to what she told me, for instance, about his party affiliations. Harlan begins his career as a Whig, a sort of strongly Unionist character, but that presents problems for him.

Tape (Linda Przybyszewski): The Whig Party falls apart in the 1850s. For a little while, he was a Know Nothing. For a little while, he was part of a very short-lived party called the Opposition Party and then by 1860, the election where Lincoln is going to become president, he was a member of the Constitutional Union Party which was for the Constitution as it was, with slavery but for preserving the Union at the same time.

E. Ayers: So then he ends up fighting for the Union, right?

Tape (Linda Przybyszewski): Right, because the Union as it was, as it is, the Union with slavery, but what happened in early 1863 is he resigns his commission and some people have argued that he resigned because he was, in effect, protesting the Emancipation Proclamation which had gone into effect at the beginning of 1863 and it’s true, he was opposed to the Emancipation Proclamation but the real reason was his father had died, his father ran the law office which was the family firm, and he needed to get back home and to start making some money in order to support his family. He immediately got back into Kentucky politics. He was elected the State Attorney General in 1863 and then he supported the Democratic candidate, George McClellan, in 1864.

E. Ayers: Okay. Let me get this straight. So, in the short period of time, we’ve heard him be a Whig, an Opposition, a Constitutional Unionist, a Democrat—

Tape (Linda Przybyszewski): I know. And then, in 1868, he becomes a Republican. [laughter]

E. Ayers: Well, he’s a man of principle, I can tell.

Tape (Linda Przybyszewski): There were people at the time when he was nominated in 1877 who said, look at this guy’s record, he’s all over the place, is really a Republican? But in the late 1860s in Kentucky in particular, it was a very trying decision because it was either the Democrats which historically, right?, are the enemies of the Whig Party, his father’s party, or it’s the Republicans who embraced what was a revolutionary change in the Constitution and Harlan had to decide between them and I think he decided for the Republicans because he was so appalled at the violence that Kentucky saw in the mid 1860s and late 1860s when former Confederates came back and a lot of Confederate sympathizers were still in Kentucky and they organized gangs who went around burning down schoolhouses for black children, terrorizing black men and women and beating people up and attacking the Union supporters as well and I think you had to make the choice between a party that he thought represented violence and chaos and a party which represented order, in his mind, the Republicans, even if it was a new order and I think he told himself that whatever his father had been as a slaveholder, he had never been—this is what he tells himself, I don’t know that this is true—but he’d never been a violent man. He’d never been a man who abused the power that slavery had handed to him.

E. Ayers: So, we’re going to pause the tape here for a minute. So in the very time that Harlan has decided to become a Republican and join the Supreme Court, help bring stability, the Democrats across the South are putting in place segregation on railroad cars and in all kinds of matters of public accommodation, but it turns out that there’s a lot of African Americans who resist this and they say “if I’m paying a first-class ticket, I deserve a first-class accommodation.” And the railroads don’t like all this because they’re constantly facing lawsuits and conductors are having to decide one time after another—do I throw somebody off the train, who’s black, who’s white, and so the Supreme Court is faced with a challenge of this in 1896 and Plessey v. Ferguson is the case that creates the legal doctrine of separate but equal, a doctrine that’s going to stay in place for the next six decades until it’s overturned by Brown v. Board of Education. But there’d been another Supreme Court case more than a decade earlier in the early 1880s that also upheld the constitutionality of these segregation laws and Harlan then also issued the only dissent. These were known as the civil rights cases. Here’s Linda Przybyszewski again.

Tape (Linda Przybyszewski): You, see, the civil rights cases are the big case in the 1883. That’s the case everyone around the country heard about. By Plessey in 1896, all the white people have figured, this is all decided. We decided this in 1883. We don’t have to talk about this anymore, so it’s only the black press that really notices Plessey v. Ferguson, so Harlan was remembered until 1954, with Brown v. Board of Education, for— He was remembered for his economic cases. The income tax dissents, his dissents in support of the Sherman Anti-Trust Act and then it’s only once the legal community starts to take civil rights seriously again in the 1950s that Harlan gets people’s attention as a civil rights defender and that becomes the thing he’s remembered for to this day.

E. Ayers: That’s fascinating and you’ve laid out this so wonderfully. I hate to reduce it to current events, but I can’t help but wonder what lessons we might draw from Justice Harlan’s life and reputation as we think about appointing a new Supreme Court Justice.

Tape (Linda Przybyszewski): Well, when it comes to his reputation, I think we need to realize that at any given point in time, we are worried about the particular issue in front of us and we can’t necessarily foretell what in 10 years, 15 years, 20 years, and, of course, these judges have life tenure so they could be on there that long, we can’t actually foretell what will be the big decisions that will be made in the future.

E. Ayers: So does that mean we should just chill and not worry too much about who these people are, that it all is unpredictable and it’ll work out one way or another?

LP: Well, I mean, it is to some degree unpredictable, but I can hardly blame people for asking the questions they ask trying to look at someone’s writings and to ask who they are, who are they, really. What’s going on here? Someone even wrote an article about Justice Antonin Scalia saying that if you looked at his Jesuit boyhood, his education in Jesuit schools, you could somehow find the key to all of his decisions, but I think that’s a little oversimplified.

E. Ayers: Really, one of the very interesting things in your book, Linda, you talk in the beginning about our mania for greatness and determining who is a great Supreme Court justice and the story you just told about Scalia and people thinking if we just look back and find the key in their education or some event in their childhood, do you think we make a sort of fetish out of the personality and backgrounds of these justices rather than thinking about the work that they do?

Tape (Linda Przybyszewski): Well, I think we need to think about both their lives and their work. Oliver Wendell Holmes once said that the life of the law has been experience, not logic, and he wanted to change that. He wanted to turn it into logic, but I actually think the way you learn from Harlan is that experience creates logic, that he learned a constitutional nationalism from his father, the Whig Party member, and then he experienced a Civil War where he had to figure out what does this Constitution look like now and what does this Union look like and what can I do with it and still remain an honorable man and then he went on to act as a judge who was committed to defending that Constitution and defending that Union in its new form, so that I don’t think you can break apart experience and logic. I think that people end up making their logic out of what they have experienced because they’re trying to make sense out of their lives.

E. Ayers: Linda Przybyszewski, Associate Professor of History at the University of Notre Dame, she’s author of The Republic According to John Marshall Harlan, published in 1999 and still with messages for us today. [music]

B. Balogh: Well, my experience and logic tell me that it’s time for another break. While we’re gone, jot down this web address, backstoryradio.org. That’s where you’ll find an extended version of Ed’s interview with Linda Przybyszewski as well as further reading on today’s topic and comments from other “BackStory” listeners.

P. Onuf: When we get back, more on the history of Supreme Court nominations. Don’t go away.

[music]

P. Onuf: We’re back with “BackStory.” I’m Peter Onuf, your guide to the 18th century.

E. Ayers: And I’m Ed Ayers, your guide to the 19th century.

B. Balogh: And I’m Brian Balogh, guiding you through the long and winding 20th century. Today’s topic, “The History of Supreme Court Nominations.” So far, we’ve focused on the process itself and how that’s changed, but we should probably take a moment to address a basic question and that question is this: the Constitution doesn’t say anything about how many justices there should be on the Court, so, guys, how did we end up with the number nine?

P. Onuf: Well, guess what, Brian, it’s the decision of Congress in a series of acts—The Judiciary Act of 1789 and subsequent legislation which moves us from six to seven and then up to nine and ten and back to nine. [laughter] All those dizzy changes in your century, Ed.

E. Ayers: Well, they are, and it’s okay that you went ahead and described it in my century, Peter, but what’s amazing is clear how it little sense of the sanctity of that number that there was and one of them, they had right after the Civil War. Well, we said it was ten, but, you know, when three guys retire, maybe it’ll seven. Well, nope. We changed our mind. That’s okay. Maybe nine, so it kind of crystallized in the 1860s and ’70s around nine.

B. Balogh: So, were people upset about that, you know, when the numbers changed?

E. Ayers: No. You’ve got to think—what this is tied to is the geographic growth of the country. We will remember Peter telling us about how circuit riding and all this and so the courts are tied to actually covering parts of the country and it’s not surprising that as you have more and more country, you need more and more courts.

B. Balogh: And it does. That’s a great reminder, though, of how important those sections and those states were, that this was a Union, this was not a powerful national government.

E. Ayers: Well, I should just remind you much more interesting the 19th century was than today [laughter] because now, you know, the playing field is defined, but that was like a game when they kept drawing the boundaries over and over again.

B. Balogh: Yeah. It’s just remarkable to me when you think about the uproar that Roosevelt’s court packing caused in 1937. Now, what was that court packing? Well, Roosevelt was very frustrated that the Supreme Court had become so comfortable and so respected that it was overturning some of the key New Deal legislation, over-reaching, what we could call “judicial activism” today. And so he had a pretty simple plan and listening to you guys, it was basically historically accurate. There’s no fixed number in the Constitution, the number of justices, so he reached back to a 19th century maneuver to say, well, you know, for every justice over the age of 70, and there were six of them at the time, we can increase the size of the Supreme Court if they don’t retire.

E. Ayers: It’s interesting, because it wasn’t about sectional growth. It was really about the growth of the workload. [laughter]

P. Onuf: Exactly.

E. Ayers: “And so these older guys are going to need some help…”

B. Balogh: Or so he said.

B. Balogh: So he said. At any rate, the country, even Democrats, drew the line at that. Even moderate Democrats looked around and said, well, wait a second, if we break down this line of division between the Executive and Supreme Court, if we can just have a president appoint as many people as possible, is he going to be the next Hitler, is he going to be the next Mussolini and that fear of totalitarian government.

E. Ayers: Which people were playing on anyway.

P. Onuf: That’s genuine.

E. Ayers: To attack FDR. Absolutely. So, in some ways, it was trumped up, but in many ways, in my opinion, it was a legitimate concern. Tampering with the very Constitution that Americans, by this time, thought is the thing that distinguishes us.

P. Onuf: Right.

E. Ayers: That’s interesting, but he wasn’t really trampling with the Constitution.

B. Balogh: Not at all.

E. Ayers: He was just trampling with conventional—

B. Balogh: With tradition.

P. Onuf: Right.

E. Ayers: And, apparently, I learned from you guys a pretty short-lived tradition.

P. Onuf: Yeah, but I think it should be said that the way American lawyers and courts respect the Constitution is a way of saying this is still the same country. We have the same fundamental law and that same spirit or principle applies in what we might call settled issues, so that’s a kind of originalism that is if something has been this way, time out of mind, which in this case would be 70 years or so. [laughter]

E. Ayers: That’s a long time in American history.

P. Onuf: That’s as if it were in the original Constitution.

E. Ayers: So, it’s interesting. It’s almost like in the common law tradition what is must be wise.

P. Onuf: Right.

E. Ayers: And if Roosevelt’s going to start fooling with that, what’s his motivation?

Tape (Franklin D. Roosevelt): “By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all federal justice from the bottom to the top, speedier and therefore less costly. Secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our National Constitution from hardening of the judicial arteries.”

P. Onuf: We have another caller on the line. It’s Pam in McHenry, Illinois. Pam, welcome to “BackStory.”

Tape (Pam): Thank you very much.

P. Onuf: And we’re talking about the courts today and you have a question.

Tape (Pam): Yes. Locally, our local judges, can be elected and I was wondering why the Supreme Court has to be chosen by the president and voted on, of course, by the Congress, why was there such a crossing between the Executive Branch and the Judicial Branch?

P. Onuf: Right.

Tape (Pam): Doesn’t that cause conflict of interest or undue influence?

P. Onuf: Yeah. Well, you’re talking about separation of powers, one of our cherished constitutional principles—

Tape (Pam): Yes.

P. Onuf: Brian and Ed are going to talk about the real problems that have emerged, but I’ll talk a little bit about the backstory and that is simply that the Judiciary historically grew out of the Executive. It’s an aspect of the Executive. The courts in Colonial America were the King’s Courts and writs ran in the name of the king. So the idea of the separation of the Judiciary from the Executive, that’s a work in the progress and the U.S. Constitution begins the work but it’s not complete, you might say, so the idea that the judiciary’s elected, for instance, where you live, well, that emerged later in American history, that is, the notion that democracy demands that the elective principle apply to all branches to give them that kind of independence—

B. Balogh: Oh, come on, Peter. Just say what you really think. Your people didn’t want democracy. They wanted a republic.

P. Onuf: Well, I don’t know. Pam, are you ready for this? [laughter] That the Founders—

B. Balogh: Hold onto your populist britches, Pam.

P. Onuf: No. The Founders had a deep distrust for democracy. In a way, it was a dirty word.

Tape (Pam): Well, of course, they did.

P. Onuf: Yeah.

Tape (Pam): They were a bunch of rich guys. [laughter]

P. Onuf: Okay. All right. Now, we got it going. Let me put it this way. I’m not going to make a judgment on this, but the demos or the people or the plebeians, the lower sort, were understood not to be the whole people, that is, all of us and we’re all created equal, of course. They were thought to be a particular order or class that had its own interests and because they were ignorant and poor, they would use their power to take property away from everybody else. That was the general idea or feeling, so there was a pejorative connotation to democracy that has been washed away in the years because, of course, we celebrate ourselves as being a great democracy and that’s a wonderful irony because the Supreme Court is right at the center of our self-conception of living under the rule of law in a great democracy but the Supreme Court is, of course, fundamentally anti-democratic.

B. Balogh: Yeah. Fortunately, we have the 19th century, Pam, and that was a century that loved democracy, right, Ed?

E. Ayers: You know, we really did, Brian, and as a matter of fact, it was up to us, really, to kind of put a lot of flesh on the bones of these institutions of democracy and the person who really took advantage of this was Andrew Jackson who comes into power feeling that he has a great mandate from the American people and he comes up with this idea that we may remember from our textbooks about the spoils system, to the victors going the spoils. And he goes, boy, some of the better spoils are these Supreme Court positions that we can put on there, right? [laughter] So, he puts six men on the Supreme Court and he makes no bones about who they are. They’re people who supported him.

B. Balogh: Yeah, they’re buddies.

E. Ayers: Yeah, they are, and he thinks, great, this will help smooth relationships between the branches and the person who ends up playing the largest role in American history that Andrew Jackson nominates is Roger B. Taney and it looks like Taney just in case you’re listening out there and the high school kids and want to impress your friends by pointing out that, no, it’s actually pronounced Taney for some reason I don’t understand.

B. Balogh: There’s a free party trick from “BackStory.”

E. Ayers: Exactly, you know, so that kind of establishes the pattern of the Supreme Court becoming an ally in partisanship and even the much-beloved Abraham Lincoln, sees nothing wrong with making the head of his campaign David B. Davis, the nominee for the Supreme Court, so across the 19th century, it’s well established precedent to use the Supreme Court as a place to put your best friends. You assume that they are men of intelligence and accomplishment, but they’re also men of helpfulness.

B. Balogh: And the rationale is we do this because the president represents the people.

P. Onuf: Right.

B. Balogh: Who’s democratically elected and those people want to be represented in that second branch of government.

E. Ayers: Exactly. How else would we know who was worthy of the public trust without the process of democracy, so that’s the rationale. There’s no great deep ambivalence or embarrassment about this. It’s just the way that things—

B. Balogh: The way things work. Yeah, and the one thing I’d say, Pam, is during Ed’s period, during the 19th century, democracy was reflected through the political parties and partisanship and by the time, by the end of Ed’s century and the beginning of the 20th century, the progressives came along and said, you know, these parties are actually distorting the will of the people—why shouldn’t we let people vote directly for what they really want so we can break this stranglehold of these parties, so they came up with the initiative, they came up with the referendum and when Teddy Roosevelt ran on the Bull Moose Party in 1912—this was after he had been president, he wanted to be president again, he lost—but one of his Party platforms was electing judges so that they could take that middle person out of the formula, take those political parties out and go right to the people.

Tape (Pam): Well, another reason I like Teddy. [laughter]

B. Balogh: Yeah, he’s definitely your kind of guy and that’s where you got— It’s the progressive era where you got a lot of those elected judges and you got something else. You’ve got the recall where you could actually get rid of judges if people didn’t like them. We’re very fortunate here on BackStory that we don’t have a recall.

P. Onuf: We’re not elected, are we?

B. Balogh: No, we’re not.

P. Onuf: But, you know, Pam, one of the things is and I think this is what Ed was talking about, is as the presidency has been more and more conceived of in democratic terms that the president has a mandate, then the appointment powers of the president do supposedly, in theory, reflect the will of the people.

Tape (Pam): That’s in theory but not reality.

P. Onuf: Yeah.

E. Ayers: Well, Pam, isn’t it possible that there’ve been some good appointed judges? You really think that electing judges would work out well? Have you followed some of the California referenda lately?

P. Onuf: Have you checked out on Congress? How do we feel about the elective principle there?

Tape (Pam): My problem with it is that they’re more concerned with conservative or liberal instead of those that follow the letter of the law.

P. Onuf: Well, Pam, you have opened up the proverbial hornet’s nest and Pandora’s box all in one and that is what is the letter of the law. Do you mean a higher law, a law that maybe has some elements of law of nature, natural law? Do we mean it’s something that people shouldn’t mess with? Or is law what our lawmakers do when they make law, so I think that it’s that fundamental ambiguity about the nature of law that gives the Supreme Court its room to play in and to assert a major role for itself, but I would like to conclude with a point and that is, when we are skeptical about the motivations of our politicians in our democracy, then we don’t trust anybody, so it’s not so much that the Supreme Court is not responsive to us. In a way, too many of the people who serve in government are responsive to us and sometimes when we look into the mirror and we don’t like what we see, but the government are us, as they say in the toy world. [laughter] So, anyway, on that really inspirational note, thanks so much for calling.

Tape (Pam): [laughter] Okay.

B. Balogh: Thank you very much.

Tape (Pam): All right. Bye bye.

[music]

B. Balogh: So, guys, could we agree that the Court has become increasingly open to democratic influence since Peter’s period?

E. Ayers: I guess what I would say, Brian, is that it’s been open in different ways to democratic influence. In the 19th century, it is open to the hurly-burly of American politics—

B. Balogh: And party politics.

E. Ayers: Exactly. You know, today, it’s open in the sense that everybody’s watching, right? But, in some ways, it’s been narrowed to talk about issues of ideological consistency and of a certain kind of character. Somebody better’d have never really messed up in their lives before, right? But it’s not really democratic in the sense that if we assume that the party that won in the last election, that elected the president—

B. Balogh: It’s not Cabinet government.

E. Ayers: Yeah, exactly. So I’d say that it’s what we consider democracy or openness has shifted.

B. Balogh: Well, you know what, to really come back to today’s topic, what has become democratic or at least allowed for democratic input, is the nominating process. This is where everyone gets their say but what that has to do with the nature of the Court itself once those people are approved is completely unclear to me. It’s almost as though we have a kind of therapeutic democratic bloodletting so that we can pretend this is a democratic institution and then the Court goes on with its business.

P. Onuf: Yeah. I think the real challenge here is to understand that democracy means much more than elections. There’re many ways in which we participate in this government and we recognize, Americans recognize, that majorities can endanger their interest. Consider the number of people who are in the minority at any given moment who might find the choice of the majority at that moment to endanger their liberties and rights.

E. Ayers: Yeah. We’ve created a great country where everybody feels in the minority all the time.

P. Onuf: Isn’t that amazing? The one question they don’t ask in polls is what do you think about the wisdom of the people and do you trust the people? It’s something that you can’t say. This is taboo, but if you honestly answered this question, most people much of the time, particularly when pet issues come up and fundamental values come up, people say no, actually I don’t.

B. Balogh: If you’re right, Peter, then don’t we in fact need a more insulated branch of government or, Ed, don’t we have to have a Supreme Court that is willing to step in when perhaps the people act in ways that are not terribly wise?

E. Ayers: Yeah, I think, you know, despite the grumbling about the Ivy League bias of all this. You don’t really see people who say, you know, let’s just choose more stupid people on the Supreme Court but what people are saying is we want people who remember what real democracy looks like, what it’s like to be somebody who didn’t have a chance to go to the Ivy League, somebody who is really committed to listening to all the American people, so to answer your opening question, Brian, yes, we’re more open and democratic than we used to be, but with every generation, what that means is changing and we’re no exception.

B. Balogh: That’s all the time we have for our show today, but as always, the conversation continues online. Drop in at backstoryradio.org and tell us whether “The History of Supreme Court Nominations” makes you feel better or worse about the way things work today.

P. Onuf: You can find us on Facebook and at backstoryradio.org. All of our past episodes are there as is a link to our free Podcast. Don’t be a stranger.

E. Ayers: Today’s episode of “BackStory” was produced by Tony Field with help from Catherine Moore and Eric Verkerke. Jamal Milner mastered the show and Gaby Alter wrote our theme. Special thanks today to the website oyez.org for use of their archival audio. Backstory’s executive producer is Andrew Wyndham.

B. Balogh: Major production support for “BackStory” is provided by The Joseph and Robert Cornell Memorial Foundation and by the Colonial Williamsburg Foundation, committed to the idea that the future may learn from the past.

P. Onuf: Support also comes from the David A. Harrison Fund for the President’s Initiatives at the University of Virginia, UVA’s Miller Center of Public Affairs, The National Endowment for Humanities, Cary Brown-Epstein and the W. L. Lyons Brown, Jr. Charitable Foundation, James Madison’s Montpelier, Marcus and Carole Weinstein, Trish and David Crowe, Jay M. Weinberg, Austin Ligon, and an anonymous donor.

Voiceover: Peter Onuf is the Thomas Jefferson Memorial Foundation Professor of History at the University of Virginia. Brian Balogh is a Professor of History at the University of Virginia and UVA’s Miller Center of Public Affairs. Ed Ayers is President and Professor of History at the University of Richmond. “BackStory” was created by Andrew Wyndham for VFH Radio at the Virginia Foundation for the Humanities. [music]

• 18th Century Guy Peter Onuf talks to historian Maeva Marcus about “circuit riding” by Supreme Court justices in the first half of the nation’s history. She explains that while the practice may have helped bind the young nation together, its benefits came at the expense of Supreme Court justices’ health & well-being.

• 19th Century Guy Ed Ayers talks to historian Linda Przybyszewski about the life and times of Justice John Marshall Harlan, who issued the lone dissent in the infamous 1896 case, Plessy v. Ferguson.

• Henry J. Abraham, the judiciary scholar who has chronicled every single Supreme Court appointment in U.S. history, tells 20th Century Guy Brian Balogh about a few of the highlights — and lowlights — of relations between the judicial and executive branches.
  • Excerpt 1: Justice John Marshall, Justice Samuel Chase
  • Excerpt 2: Justice Benjamin Cardozo
  • Excerpt 3: Justice Wiley Blount Rutledge
  • Excerpt 4: Justice Arthur Goldberg

Another summer, another Supreme Court vacancy!

Just in time for the Kagan confirmation hearings, BackStory is delving into the long history of appointments to the Supreme Court. What qualities did presidents and lawmakers look for in Supreme Court justices 200 years ago, and how have those expectations changed? How much have nominees’ personalities and backgrounds mattered in the past? Was the confirmation process always as “politicized” as it seems today? Was it more so? How has media coverage affected the process? Join the History Guys as they explore the highlights – and lowlights – of Supreme Court nominations past.

Full transcript

Guests Include:

• Maeva Marcus, Director of the Institute for Constitutional History and editor of The Documentary History of the Supreme Court: 1789-1800
• Henry J. Abraham, James Hart Professor of Government Emeritus at the University of Virginia and author of Justices, Senators, and Presidents: A History of U.S. Supreme Court Appointments from Washington to Clinton
• Linda Przybyszewski, Associate Professor of History at the University of Notre Dame and author of The Republic According to John Marshall Harlan

Web Exclusives

• Listen to “Justice on Horseback,” the story of early America’s wandering justices.
• Listen to more excerpts of Brian’s interview with Henry J. Abraham.
• Listen to the full version of Peter’s interview with Maeva Marcus.
• Listen to the full version of Ed’s interview with Linda Przybyszewski.

Further Reading

Want to dig deeper into the history of Supreme Court Nominations? Check out this list of resources compiled by the History Guys to learn more.

Ed:  I’m Ed Ayers, 19th century guy.

Brian:  And I’m Brian Balogh, 20th century history guy.

[Recording of Harry Truman] “In a nation as rich as ours, it is a shocking fact that tens of millions lack adequate medical care.”

Brian:  That’s Harry Truman in his State of the Union Address to Congress in 1949.  He had just been re-elected.  Maybe that’s why he decided to drag out this old agenda item which so far had gone absolutely nowhere.

[Recording of Harry Truman] “Moreover, we need and we must have without further delay a system of prepaid medical insurance, which will enable every American to afford good medical care.”

Ed:  And needless to say, we did have further delay – 60 years of it in fact, and still counting, and it’s not for lack of trying.  Truman may have been the first President with a concrete proposal for universal health insurance, but there have been plenty more since then:  Lyndon Johnson, Richard Nixon, and most recently, Bill Clinton.  So can President Obama accomplish now what so many other presidents have failed to do.

Peter:  On each episode of BackStory, we pluck a topic from the headlines and spend an hour exploring its history.  Today, that topic is health care.  How has the debate played out since Truman, and what did it look like before him?  Was access to health care such an issue before the age of modern medicine.

Brian:  When we started fielding health care questions on our web site a few weeks ago, it quickly became apparent that there was one question that was on everybody’s minds:  It was summed up nicely on this voice mail from a listener in Ohio.

Caller Bruce: “Hi, this is Bruce Weingard, I’m calling from Columbus, Ohio.  I have a question regarding how is it that the American approach to health care differs so from the European model.  Where did we go in a different route.”

Ed:  So I guess the question is, when did American and European systems of health care diverge.  Did it happen back in ye olden times, Peter?

Peter:  Well, Ed, I think using the word “system” is overdoing it a little bit for the Colonial period, and basically, as you know, there were no public institutions to speak of.  It’s only in Colonial cities that you  have poor houses and jails and eventually, a hospital in Philadelphia in 1751.  But that’s unusual, most Colonial Americans deal with the issue of life and death within the family.

Ed:  Would that have been very different back in Europe?

Peter:  No, honestly, the big difference is a question of scale. When you have a large number of people in a big city, they’re often not connected with each other, so the family form simply doesn’t exist, and there are institutions that make up for the failure of families, but that’s not health care.  It’s more getting dead bodies out of the way, burying them. . . that’s pretty brutal.

Ed:  Well, 19th century think that maybe there were great advances in technology.

Peter:  Yeah, which ones would those be?

Ed:  . . . but there weren’t.  Not until the very end of the 19th century, which comes perilously close to edging into Brian’s territory.

Peter:  So should we just give the whole show up to Brian?  What do you say.

Ed:  Well, you know, I was trying to kill as much time as possible by talking about things that didn’t happen in our centuries.

Brian:  You mean, I actually get to answer a question?  This could be a first on BackStory.

Ed:  Too bad you wasted part of your time talking about how you finally get to answer one.

Brian:  And now I’ve got to waste more of it because, in fact, I want to turn to this other guy, who’s going to answer part of that question first.

Jacob Hacker: My name is Jacob Hacker, I’m a Professor of Political Science at Yale University.

Brian:  I should tell you right now that Jacob Hacker, he’s not just any political scientist.  This is the guy who, as a grad student 10 years ago, basically created the blueprint of this public option that we’ve been hearing so much about.  So it’s clear where he stands in the legislative debate, but still, I thought it would be interesting to get his take on some of the history.  So I put our caller’s question to him.

Jacob Hacker: Well, there’s a couple of answer to that question.  The political scientist in me will say this is a reflection of our fragmented political institutions, and our anti-government political culture, that’s sort of one class of explanation.

Brian:  Hold up, time out, Mr. Political Scientist.  What do you mean by fragmented institutions.  In radio talk, what is that?

Jacob Hacker: Well, in radio talk, it’s the checks and balances that our Constitution creates that make it so hard to pass integrated comprehensive programs.

Brian:  So different branches of government.

Jacob Hacker: Different branches of government, federalism with the states and the federal government with overlapping responsibilities.  There’s been scores of Europeans who have come over to the United States and sniffed at the American state, and said it doesn’t really constitute a state at all because it is so messy, and it is generally very hard to pass big legislative initiatives.

Brian:  So that’s the political science view on all of this.  It wasn’t simply doctors or drug companies who are opposed to reform.  And it wasn’t just the big, bad insurance companies either.  Hacker says that all those business interests would not have had the impact they had if it weren’t for our decentralized model of government.

Jacob Hacker: But I think it’s really important to understand that every time we’ve failed in the past to enact reform, a new set of vested interests has emerged, and just as important, we’ve seen the development of a massive system of private health insurance that covers the vast majority of working Americans.  So to me that’s the big story, that the choices we made in the past have sent us down a path that’s very hard to get off of.

Brian:  Health reform, on the national level, first went down for defeat in the Progressive Era, back in 1912.  That was the year that Teddy Roosevelt ran unsuccessfully for a third term on a populist platform, that included compulsory sickness insurance, that would cover people’s wages while they were sick and out of work.  The fight then moved to the state level, and reformers came close to winning in both New York and California.  But this was just about the time that doctors were really beginning to feel their oats and organize, and medical care was getting more expensive.  It didn’t take those doctors long to figure out that health care reform might directly affect their livelihoods.  And then, there were these brand new insurance companies.  Here’s Hacker again.

Jacob Hacker: Perhaps what’s an interesting story from this period is the story of Frederick Hoffman who worked for Prudential, who was an actuary.  Actuaries are definitely a rabble-rousing bunch.  In any case, he turned out to be one; he probably was the leading propagandist against any of these efforts.  He said that there would be rationing of care; that government would come between patients and their doctors; he said that this was imported from Germany; that it was a Socialist plot.  He said that it would be allowing immigrants to receive care; that it would be helping the less well-bred stock of the nation, and hurting the genetically pure.  It was a panoply of fabrications and incendiary lies that bears, I’m sorry to say, a more than a passing resemblance to the some of the invective that has been hurled against health care reform this time around.  I think it’s worth remembering:  Every time we’ve had a debate over this issue, it has become a very emotional debate very quickly.

Brian:  That highly charged history probably goes a long way towards explaining why Franklin Roosevelt decided to drop national health insurance from his New Deal legislation in the mid-30s.  He had plenty on his plate already with social security and unemployment insurance, but still, it’s a decision that pains Jacob Hacker even today.

Jacob Hacker: He had a remarkable political position.  He comes into office during the worst economic downturn in the Nation’s history; he has a mandate to act; he has huge democratic majorities.  My read of the history, and a lot of other people’s read of the history, is that had Roosevelt had insisted on some kind of health insurance provision in the Social Security Act, it probably would have passed.  And he didn’t for two reasons:  one of which is the doctors were completely opposed . . .

Brian:  . . . and we should just pause and say that these were pretty big men around town, they were pretty influential in local communities, congressional districts.

Jacob Hacker:. . . yes, they had all these state chapters and local chapters, and plus, whenever you went to your doctor, they would tell you whether or not it was a good or bad thing to have this happen.

Brian:  And you know what else, we actually believed in experts in those days.  We thought they were they were the good guys.

Jacob Hacker: You’re right.  Why else would the tobacco companies have had the doctors touting Camel cigarettes, because if you’re doctor smokes, they must be good for you.  In any case, the second thing is that Roosevelt believed that he could just come back and do this a few years later.  And that was the first and the last in a sense time that putting it off was final.

Brian:  Why was FDR our last chance, as you see it, up till now?

Jacob Hacker: I think FDR was our last chance because of the fact that when reform went down to defeat in 1935, or never even got a chance to be considered, that was really a turning point in the development of private insurance.  It’s hard to remember today when people are losing coverage right and left, just how quickly health insurance expanded during and after WWII.  Blue Cross plans, hospital plans, emerged in the midst of the Depression; and by the end of WWII, we’re talking about coverage that’s probably reaching about half of the American population, and so the typical blue-collar worker before WWII, didn’t have health insurance coverage; the typical blue-collar worker after WWII had pretty generous private health insurance.  For that worker, suddenly the prospect of tax-funded national health insurance program is just a lot less attractive.  So what I think is important to understand, is that it wasn’t just private insurance companies or drug companies or businesses that benefited from relying on private health insurance, at least initially, but also lots of Americans saw private health insurance as a good solution for them.

Brian:  That’s Jacob Hacker, Political Science Professor at Yale University, and the original author of the so-called, Public Option Plan for Government Sponsored Health Insurance.

Ed:  So, the train of health care reform doesn’t stop in the Progressive era; doesn’t stop in the New Deal; barely pauses in post-WWII; slows down long enough to pick up the very poorest of Medicare and Medicaid in the 1962; but what happens in the 70s and 80s, does the idea just go underground, or are people fighting for it or what?

Brian:  No, it doesn’t go underground, and just to, I love your metaphor of the train of health care reform, but running on a separate track, and ultimately, heading for a collision after it gains enough momentum, is another train and that’s the train of health care provision.  It is stopping at every local stop, picking up those employer-based health care folks, picking up a huge number of passengers through the Veterans Administration, picking up folks through Blue Cross/Blue Shield, who are self-employed . . .

Peter:  . . . and so, Brian, would you say then that the actual tipping point that led to the current debate was that the train is beginning to empty out and a lot of people aren’t getting on.

Brian:  Yes, absolutely.  I’d say the train is derailed, Peter.  We don’t have to look at this incrementally.  Every time we run into a recession, we shed jobs, and with those jobs, goes health care.  But what’s more, starting with Nixon, this country started shedding manufacturing jobs, jobs started going overseas, and what did employers do to become more competitive and cut costs.  They started cutting their health care benefits.  So, more and more jobs don’t come with health care benefits, and that is the train wreck for the existing system.

Ed:  Well, on that chipper note, it’s time for a short break.  When we get back, we’ll talk more about the history of health care in America.  And when I say history, I mean history.  Enough of this 20th century business.

Peter:  We’d love to hear what you think the past has to teach us about the state of health care today.   Leave us a comment at BackStoryRadio.org.  We’ll be back in a minute.

[music]

Peter:  We’re back with BackStory, the links to the past with the America of today.   I’m Peter Onuf, your guide to the 18th century.

Ed:  I’m Ed Ayers, you’re guide to the 19th century.

Brian:  And I’m Brian Balogh, guide to the 20th century.  We’re talking today about the history of health care in America.  In the first part of the show, we focused on my century, some of the background of the debate taking place now in Washington, but now it’s time for some deep history.  And when I say deep, I’m not talking about the 19th century, Ed.  I’m not even talking about the 18th century.  No, we are going all the way back to the 17th century.  I didn’t know I could count that low.

Peter:  When we think of hospitals today, we think of sick people, but back in Medieval Europe, that’s even before the 17th century, hospitals took in pilgrims, travelers, and strangers, anybody in need with no place else to go.  It’s no coincidence that hospital sounds a lot like hospitality, both share the Latin root “host space”; host for guests or strangers; and so for hundreds of years, the word hospital was used interchangeably with guest house.  Such was the case in the early 1600s when English Colonists established North America’s first hospital, right here in Virginia.  BackStory producer, Catherine Moore, has the story.

Catherine Moore:  So you’ve heard of Jamestown, but you might not have heard of Henricus, the second English settlement in the New World.  By 1611, it’s turning out that swampy, mosquito-infested Jamestown isn’t the healthiest place to make a new world, so the Virginia Company’s Deputy Governor, a military man named Sir Thomas Dale, sets his sites on a more secure spot, with fresher air.  Across the river from the new town, he builds a string of forts, one of which also serves as a place for sick people.

John Pagano: “We are in the recreation of Mt. Molado, the first English hospital or guest house built here in the New World” . . .

Catherine Moore:  I’m standing inside a large wattle and daub-style building.  As my eyes adjust to the darkness, I see a few dozen beds and tables covered with ominous looking medical instruments, herbs and suspicious powders.  My tour guide is John Pagano, an interpreter at Henricus Historical Park, who dresses as one of Sir Thomas Dale’s soldiers.  It was these soldiers who provided most of the care for the guests at Mt. Malado.

John Pagano: As part of your agreement, your indenture with the Virginia Company of London that they’ll care for you when you’re ill; they’ll provide food, clothing, shelter, all of it.

Catherine Moore:  The Virginia Company, of course, had an interest in keeping its workers healthy, and  the indentured folks back home that the New World was worth the trip.  But John tells me there was also a larger vision network.

John Pagano: Sir Thomas Dale’s going to name this area the Commonwealth, because Dale believed that everyone, whether you’re wealthy or whether you’re here as an indenture and you’re from a poor family, that everybody here pitches in to everyone’s else’s work, and everyone will prosper.  He probably, if you were to continue that thought into all areas of settlement, he might have called the medical practices here in the hospitals the common health, because no matter what class you were, you got the same treatment as everyone else.

Catherine Moore:  Sounds pretty nice.  Well, yeah, until you consider the kind of medical treatment that was liberally dispensed across class lines.

John Pagano: There is a surgeon or two in the Colony, but they’re essentially traveling surgeons, for what they called back then ‘barber surgeons’, they can cut your hair and treat your illness all at the same time.  But they don’t really have a lot to go on, so they’ll just go in, and they’ll cut around things, pull things out and look at them, and in this time period, there was no anesthesia, so this isn’t a time period where you want them to go internally into you.

Catherine Moore:  Especially when the barber surgeon is stuck down river, and all you get is the soldier with a bone saw.  You can understand why people might have been a bit hesitant to check into this guest house, after all, where the sick were cared for by women, at home.

John Pagano: The common people back then were just touching on this idea of going some place and letting someone else care for my mother or my son.  If you think about people today, would anyone go into a strange house and have someone who has no medical training work on them.

Catherine Moore:  So how would they have gone about trying to convince people that this was safe or the best way to get the care that they needed.

John Pagano: It’s such a loaded answer, because we’re going to tell you what to do and you’re going to learn to like it, because we’re the ones in charge, and although you don’t understand the wisdom of why the Virginia Company of London has this, I do.

Catherine Moore:  So before you get all misty eyed about common health and Commonwealth, remember that back then, health care was enforced at the end of a stick, so it’s little surprise that as business in the New World starts to pick up and marshall law is relaxed, Mt. Malado becomes a thing of the past.  By 1622, Thomas Dale is gone; he succumbed to the bloody flux in India, and the building has been bought by an ironmonger, who probably used it to house his workers, and we don’t see another public hospital in American for over 100 years.  In the meantime, there were a few alms houses for the poor, pest houses for serious epidemics, and itinerant doctors for the very wealthy.  But most importantly, there were more families.  Early Americans looked after their own.  Only strangers to a New World needed other strangers to take care of them.

Ed:  That’s BackStory producer, Catharine Moore.  You can see pictures of the Henricus Hospital at our website, BackStoryRadio.org.

Brian:  So now we’re going to jump ahead in time a hundred years and travel up the East Coast to Boston.  In April of 1721, some sailors stepped off a ship from the West Indies there with a disease no one had seen in the area for 20 years, small pox.  One of the sailors was quarantined instantly, but a couple of others went into town and behaved, well, like sailors behave when their on leave.  The disease spread like wild fire, and soon the people of Boston began dying.  Reporter Nate DiMeo is going to pick up the story from here.

Nate DiMeo: It felt like the flu; you get a fever and chills, you’d feel achy, sometimes you’d throw up, sometimes you wouldn’t, and then the rash would start to appear, and you would know you were probably going to die.  In the Summer of 1721, nearly half of Boston’s 11,000 people came down with small pox.  Every other Bostonian, every other wheelwright and cooper, every other brewer, and clergymen.  And when they got it, they either died or were permanently disfigured; those were your options.  And the people of Boston were terrified, which of their loved ones would be next; which of  their customers or employees would stop showing up; would their father make it through the night; and who could they blame.  This was the Puritan city, so, of course, there was Satan, there was always Satan.  But a lot of Bostonians blame themselves; they had allowed their city to become a den of sin.  They had profited from the booming trade that was flowing in and out of it.  The broadened heathens of run and tobacco, and now this small pox.  This was God’s will.  The city should sit and take its punishment, and let the disease run its course.  Nearly every Bostonian believed it.  Nearly every doctor and clergymen believed it.  But two did not.  No one in the New World deserved more credit or more blame for making people believe it, The Reverend Cotton Mather.  Since graduating from Harvard at 15, he had written theological treatises that had defined the Puritans themselves.  He had written on the wages of sin, on the ways of demons and witches.  He helped infuse the fanatics of Salem with the belief that drove them to persecute and kill their neighbors.  But this man of God was also a man of science.  Mather had heard years before about the practice of inoculation.  A slave had told them about how back in Africa, they would take needles and remove puss from the wounds and sores of infected people, and poke it into the skin of healthy ones.  The healthy people would get sick, but for a brief time, and they wouldn’t die.  Now with smallpox spreading fear and death in his city, Mather wanted to try the heathen science.  His city wasn’t having any of it.  His fellow clergymen condemned him for heresy.  Doctors condemned him too; no doctor would sicken someone intentionally; it was against the whole point of being a doctor.  Mather showed them accounts of the Chinese doing it; of Turks doing it, but he couldn’t convince them.  The procedure was forbidden before it could even be attempted.  But one doctor decided Mather was right.  His name, his delightfully preposterous ye olde New England name was Zabdiel Boylston, and he was just as frightened as anyone else.  He had been helpless watching his patients die; seeing faces he loved become scarred and barely recognizable.  On September 21, he took a needle and scraped puss from the open sores of an infected man, and he took that needed covered in this stuff, that even in this time, long before people understood what germs were, he had to know that stuff was filled with disease;  he took that needle with one hand and with his other hand, he took his 6-year old son, held him tightly, and stabbed the needle into the boy’s arm.  Later that day, he did the same to his slave, and the slave’s own young son.  The city exploded.  Ministers, doctors, and pamphleteers condemned the two men.  They said Zabdiel Boylston was killing his son; that even by simply attempting to fend off the disease, he was defying God.  A firebomb crashed through Mather’s window; Boylston couldn’t even leave his house; even after his son and his slave, and that man’s son became better, even as other people refusing to sit and wait to die, sneaked into the doctor’s home and demanded to be inoculated, even as word spread that the procedure seemed to be working, everyone condemned the doctor and Reverend.  Later that Fall when the smallpox epidemic had finally run its course, people could finally look at the numbers.  Nearly half the city had contracted the disease; of those who had, nearly 1 in 6 had died.  Of the 244 people Boylston inoculated, 6 people died; that’s only 1 in 40.  Still, for years, much of Boston condemned Mather and Boylston, even after the next year with the British Royal Family essentially risked everything and inoculated the young heirs to the thrown.  Even after Boylston himself traveled to London to be inducted into Royal society; and even after he returned to Boston to live, and to outlive just about everyone, dying peacefully at the age of 90.

Ed:  That’s Nate DiMeo.  You can listen to more of his evocative tales about the dark corners of American history at his website, Thememorypalace.us., and you can find his podcast, along with ours, in the history section of the I-tunes store.

Peter:  Well, Ed, I thought those were a couple of interesting features and they do point to something I think is really important for the larger show that we’re doing today, and that has to do with the way in the early period, and my period of the 17th and 18th century, that leaders of the community had to address public health issues, dangerous to the health of the entire community.  When they were attacked by smallpox, it was something like being attacked by a foreign enemy.  So that idea that we consider the health of the people in the context of the fate of the Commonwealth, politics, economy, and society are all so closely linked, it’s not the kind of focus on the individual, and the health of the individual that’s characteristic today.

Brian:  So is this the beginning of public health in America?

Peter:  I think that’s fair to say.  This collective strategies are necessary, and one of the reasons for this is that the prospects of dying are much greater than they are now.  I think that’s the single fact we have to keep in mind.  Women were prone to dying in childbirth; they called really old people in New England like 70 years old or 60 years old, they were revered almost as angels; they were special people because somehow God intended them to survive.  In other words, the normal expectation is death, and that means that you can’t rely on families alone.  Families have to be knit to other families, and to a broader sense of Commonwealth.

Brian:  Well, as we do with each episode of the show, we’ve been fielding comments on today’s topic at BackStoryRadio.org.  Our producers have invited a few of the folks who’ve left comments there to join us on the phone now.

[telephone music]

Peter:  We got a call.  It’s Kathy from Athol, Massachusetts.  Welcome to the show.  We’re talking about health care, a subject that’s on everybody’s mind, and you’ve got a question.

Caller Kathy:  Hi.  I do.  I’ve been wondering whether when government got into other things that we now think of as public sectors, like public safety or public education, and I know there have been debates about public utilities back and forth, but I’m just wondering whether the health care debate is actually, sort of in a class by itself in terms of the kind of fear and anxiety that it seems to promote in people about the role of the government getting into this sort of intimate realm of life; or whether it’s really part of a long sequence of fights that are essentially over the same thing.

Peter:  Well, my reflex reaction, and that’s about what I’m good for, is to suggest that anti-state-ism and that hostility to the public sector, has become a major idealogical strain in American history, and present, from the founding.  It takes different forms, but the fear of gun control, or fluoridation of the water supply, or whatever it might be, or taxes, just about anything.  Brian, do you think this is the case in the 20th century.

Brian:  I would say that yes, anti-stat-ism has been wish us, and distinguishes us from other countries like Canada that are used to stronger forms of executive government going way, way back.  I think what Americans particularly dislike and fear is any kind of bureaucracy or back in Ed and Peter’s day, functionaries, kind of that administration officials telling them what to do.  Now, why they don’t think insurance company functionaries are bureaucrats who are controlling their medical care, it’s a mystery to me, except in a historian I know that Americans have always distinguished between the two.  Americans spend a ton of money, public money, on health care, but they do it by giving private employers tax breaks.  And in fact, by giving employees tax breaks for the benefits that we get.  We spend hundreds of billions of dollars each year on that, almost as much as Medicare, but there’s no visible government bureaucrat sitting there.

Caller Kathy: I think it’s a really interesting point that you’ve just made, and it’s interesting that people seem so strongly resistant to having someone tell them what to do when profit is not the main motive, but they don’t seem to mind it as much when profit is the motive.  Maybe that’s because it let’s us still feel as though the free market is keeping us free.

Ed:  Yes, I think that’s right.  We’re assuming that the invisible hand is somehow making sure that, I know it seems very expensive to have $80,000 for this toenail removal, but it must be the market, so it must be OK.  Though to go back to your original question, is there something special about health care, and I think there is, and I think there’s two currents that are joining, that are making the current debate so livid:  one, anything that deals with the body, and you raise the issue of intimacy, is very powerful, and Peter had mentioned fluoridation, and it’s hard for us to imagine what a prolonged and fervent debate that was in the 1950s, about the infiltration of our bodies by this chemical that’s being put in the water, and the Communist one is to do that; but also, of course, is the abortion debate.  And you think about what the bumper stickers and things that are about, such as “keep you laws off my body” and both sides of these kinds of things, and health care itself is the entire range of everything touching your body.  So I think there’s something especially alarming to some people about the idea of the government touching your body.  And now, why the government?  Well, my dad used to have a saying when we were out planting a tree or doing some work around the yard, he’s say, “Well, we’re done.  That’s good enough for government work.”  And that would be just a joke, that is was OK, we did it halfway, the way that the government would do it.  We imagine the invocation, and I say this with full respect for anybody involved in motor vehicle registration, DMV and health care is the image that Americans have at all this.  So it’s the inefficiency they imagine of the government, combined with the invasiveness of touching your body that I think just drives people crazy about this.

Peter:  Kathy, thanks for calling.

Brian:  I hope we were good enough for government, Kathy.

Caller Kathy: Thanks.   Bye.

Ed:  It’s time for another short break.  When we get back, we’ll take more of your calls about the history of health care in America.

[music]

Peter:  Remember, if you’d like to join us on a future show, have a look at our website to see the topics we’re working on.  We’re at BackStoryRadio.org.

Ed:  Underwriting support for BackStory comes from the Colonial Williamsburg Foundation, committed to the idea that the future may learn from the past.

Peter:  This is BackStory, the show that looks at the past to explain the America of today.  I’m Peter Onuf, your 18th century history guy.

Ed:  I’m Ed Ayers, 19th century guy.

Brian:  And I’m Brian Balogh, 20th century history guy.  Today, on the show, the history of health care in America.

Peter:  We’re going to take another call now.  It’s from Brenda out in DesMoine, Iowa.  Brenda, welcome to BackStory.

Caller Brenda:  Thank you very much for having me.

Peter:  Well, we’re talking about health care, which is on everybody’s minds now and I’m sure on yours, too, that’s why you called.

Caller Brenda: Yes, it is.  I wanted to get your opinion on what you might call “rising expectations”.  Like I said in one of my entrants on your website, I’m an asthmatic, but it’s not like you can tell by looking at me.  I know that medical technology and research has gotten to the point where there are drugs to treat it now.  That was not always the case.  So I wanted to hear from you about how we expect more, it’s like our  standards have gotten better.

Brian:  That’s a great questions, and I’m curious, Ed, when did actual expectations for health begin to rise.

Ed:  I was going to say that it’s much more in your period than in mind.  Because, in the 19th century, there were really no medical breakthroughs all the way through the era of the Civil War.  It was not until pasteurization and this kind of more public health discoveries in the later 19th century that you started seeing things, and they didn’t even know that mosquito caused illness, they thought it was my asthma, lifting out of the swamps, so my sense is that it was not really until the early 20th century that you would have seen very great breakthroughs in health expectations.

Brian:  I would agree that, though I’d back up a little bit and go back to your point about public health, because public health improving it in the late 19th century, right on the edge of your period and mine, it entailed massive investments in water, in sewar systems, in cleaning up cities, and I have to believe that people weren’t willing to spend that kind of money, those kinds of tax dollars, if they didn’t have great expectations for improving health.  Would you agree?

Ed:  I would say by the last decade of the 19th century, but you’re still having, as late at the 1870s, horrific outbreaks of yellow fever and other diseases that we’ve now mastered, that were complete mysteries to people.  They could the same thing as back in the 18th century of quarantines.  So, you’re right, Brian, they began to clean things up, but it still wasn’t part of a comprehensive understanding of where disease came from.

Caller Brenda: Yeah, if you say that some of it is that we didn’t know about disease or understand it, this happened, life was nasty, brief and short and that’s just the way it was.  Then we started to get better technology and understanding how to do things, and then pretty soon it becomes almost what the Catholics might call a “sin of omission”.  Now that we can do surgery, it’s terrible to let some child with a cleft pallet just go.  If a woman has breast cancer, it’s almost expected to be able to do reconstructive surgery after the mastectomy, and that kind of thing.  The child with the cleft palette is going to have trouble with swallowing and speaking, but the child isn’t going to necessarily starve.  It’s almost like if you have the ability to help somebody, then isn’t it almost wrong not to.

Peter:  Brenda, what I think I hear you saying is that there is an idea of the normal.  The normal is the normative, that is, we have both a focus on the individual, yet we measure ourselves against some kind of universal yard stick, and that is where you get to your rising expectations, because if we keep taking up the yard stick, because we keep saying this is the way we all ought to be, and all public health now is essentially a bully pulpit in which people tell us we should be thinner, we should be eating better, we should be aspiring to a better, healthier life.

Ed:  And even more than that, Peter, this is the century in which plastic surgery is really soaring, and we have not only the expectation of health, but of beauty.  They couldn’t even perform the most basic surgeries without killing people back in the 19th century, and now with all the anesthetics and anesthesia and everything, it seems a routine thing to be slicing people’s faces and all that.

Peter:  Which is why we’re on radio.

Ed:  But, anyway, this is where I think Brenda’s question is actually profound.  I think it’s not merely the expectation of health, but the expectation of everything, and one reason the current health debate is so heated is that the stakes seem so high now, because what we expect from health care seems virtually unlimited.

Peter:  Thanks for calling.

Caller Brenda: Thank you.

Peter:  Hey, guys, we got another call.  It’s from Brent in Cleveland, Ohio.  Brent, welcome to BackStory.  What’s on your mind.

Caller Brent:  As a native Clevelander and someone’s who has lived all over the country and sort of the urban north and the rural south, I’m really interested in how people in those areas of those country are likely to react to the health care debate today; and I wonder if the way they reacted is colored by political and cultural history that are tied to the regions.  I’ll get more specific, I know that in the wake of the Civil War, the Federal government gave penchant to the Union soldiers and their families, but not to Confederate soldiers and their families, and so what I’m wondering, is whether that legacy has shaped the way people in the rural south and in the north view the Federal government and its efforts in health care, and whether there have been disparities at other points along the way health care and penchants and all that in the way they’re shaped by north/south or urban/rural disparities.

Peter:  Brent, you want to know if regional differences explain some of the brouhaha over health care, and whether we can give some historical perspective on this.  What do you think, Ed, you’re a southern boy.

Ed:  I am and that was many interesting questions put together.  You’re exactly right that there was a lot of resentment for a long time that a lot of men with missing limbs and disfigured faces really had no support from the Federal government at the very time in time in the 1890s, in particular, when people were growing old, and the state governments in the south ended up spending a large part of the budgets on artificial limbs and care for the Confederate soldiers.  Here in Richmond, there’s a Confederate Soldier’s Home that private money would go in to do all these things.  So you’re exactly right in that analysis.  And another way you’re exactly right is the enormous health disparity between the north and the south today.  If you look at maps of social well-being and various instances of maladies, the south is so much worse off then the rest of the country, and part of it, is the black belt, as part of the African-American population and there’s neglect there.  Another part of it is Appalachia, where you have really great shortages there.  But here’s the paradox, Brent, the people who are  most opposed to the health care plan do tend to live in the south, and do tend to be people of economic need, but you find that those are the states, ironically, that actually get more from the Federal government; whereas, in the liberal states, which are actually net payers to the Federal government, are in support of health care.

Caller Brent: So what I’m wondering about is whether the lack of Federal expenditures  has maybe even caused some of the more recent Federal expenditures; maybe if Federal government had actually helped out with some of the needy in the 1890s, that maybe the states would not have had to spend so much, and they might have been able to put some dollars into development.

Ed:  Well, I think the Federal government wanted to give money for them, and the southern states actually resisted, and would help the black population, and for well-known reasons, the southern states did not want to open the door to Federal involvement in their affairs because they were flouting the 15th Amendment.  I don’t think it’s the lack of earlier investment, except maybe in the New Deal.  The iron is, we have irony and paradox, is a bonus, of southern history, is that southerners, black and white, pride themselves on not needing doctors as much.  And it’s a part of the cultural tradition that you basically have to be in really bad shape before you’ll go to a doctor and that does, to me, look like a cultural thing.  It looks like an aversion to expertise, or meddling, or that sort of thing.

Peter:  Except if you’re from South Florida.

[laughter]

Peter:  That’s the highest per capita use of medical services in the entire country is in South Florida.  Three times per capita than what it is in Buffalo, New York and Miami.

Ed:  Well, that’s so far south, it’s north.

Peter:  No, it’s not really part of the south.  But I don’t know, Brian, would do you think about this.  Can we trace that tradition back, this kind of willingness to look to government for solutions?  Is that part of the civic culture of the north as opposed to the south?

Brian:  Well, I think that it is.  But, the 20th century, as it tends to do, guys, tends to complicates things a lot.  Brent started out by asking about the implications of war and the military on social and health provisions.  When you run that forward into the 20th century, what you get is what Ed was eluding to, that is increasing expenditures that are going to the south, and that’s in the form of military bases, but that’s also in the form of Americans serving their county.  After WWII, the only Americans, the only large group of Americans that received regular, and pretty good, medical care from the Federal government were veterans.  They received it through these veterans facilities, but this is where the ironies and the paradoxes of the south come into play, because those facilities also discriminated against African-Americans, and African-American veterans.  So even though they were entitled to these medical services, they found it a lot harder to receive them.  But this is when I think the south started benefiting from Federal largess in health care, perhaps, in a disproportionate way.

Peter:  Brian, don’t you think it’s also true that Americans have a genius for feeding at the Federal troth and then denying that they’re dependent on it.

Brian:  Oh, no question about it.

Ed:  I heard a guy the other day say, “I don’t know why these people have to have the government, because back when I was poor, I was on Welfare and Food Stamps, and I never asked the government for anything.”  [laughter]  So what do you think, Brent, did we get anywhere close to answering your question in a persuasive way?

Caller Brent: You sure have revealed the paradox that I was trying to get to.  How was that?

Ed:  That’s a very polite and ironic answer to our question.

Peter:  It’s a sign of being a sophisticated historian.  Welcome to the club, Brent.  Good to talk with you.

[music]

Ed:  So, it seems to me, Brian, that in the current debate, people who are trying to sell the nation on this public health care system, keep talking about efficiency and cost and all those kinds of things.  Rather than much of a morally charged responsibility.  It shifts over to a cost accounting model, rather than a more communitarian model.

Brian:  That’s such a good and important point, Ed.

Ed:  When Truman proposed health care, and when Roosevelt was building up to it in the 30s, they both talked in terms of obligations, the reciprocity of citizenship.  And it was a time when Americans were asked to make huge sacrifices for their country.  And I don’t mean to demean the sacrifices that our fighting men and women are making today in Iraq and Afghanistan, but they are a sliver of the American population.  Truman was addressing a population that had just sacrificed collectively, and that’s how there was broad support for providing good medical care to millions and millions of returning veterans, because they had sacrificed the relationship between the obligations to government and the benefits that one could expect back from government were crystal clear in those days, or at least as clear as they get in a democratic republic.  So let’s imagine what it looks like to the many Americans who oppose anything like this and the energy that they bring to it.  You could argue that because of the history that Brian’s told us about how insurance became linked to employment, it’s not unlike the health care given to returning G.I.’s.  It’s that they had earned it; I have earned this, it’s a part of my benefit fix that I get, and that what you want to do is give away something for nothing.  Even Social Security, right, is a return for services rendered.  So, I think that what we have here is the lack of a mechanism to explain how somebody deserves health care merely for being a part of the community, merely for being an American.

Peter:  So, Ed, you would say at the end of the day that we end up with ideological and even rhetorical problems about how we describe and mis-describe the world we live in.

Ed:  Yeah, because we don’t really have a language, really just as unabashed communitarian, not Communism, not Socialism, just collective responsibility.

Peter:  Well, we have Nationalism, that may be the closest we get, and that’s why war time is so crucial.

Brian:  Yes, but you know guys, we did have that language back in your century, because everybody understood that somebody who had a communicable disease, whether they had a job or not, whether they were a brave soldier or not, could get everybody else sick, and so the steps that needed to be taken were collective.  The language was collective, so we have progressed to the point where we feel safe from other people’s misfortunes, and the illnesses all seem internal.  The ones that we can’t lick – heart disease, cancer, all those things seem like something that well up from within and may be even our fault.  We didn’t eat right; we didn’t exercise; smoking.

Ed:  Look at the way it is today with Swine Flu.  Nobody’s blaming anybody else for getting Swine Flue; they’re just saying it’s an epidemic.  So it’s by the changing nature of the diseases that are killing us, as well as the changing nature of the technology that these diseases are fixed.

Brian:  Because we’ve done so well, in general, at dealing with those communicable diseases, so we’re left with those individual diseases, and that really plays into American’s pre-existing condition, if you will, of seeing things through individualistic terms.

Peter:  Well, Brian, everything you’ve said makes a lot of sense except that it is that the sense of the individual and of the individual’s health, body, this individualistic focus has developed in the 20th century.  It’s not that we can think back into the 18th century and think about Adam Smith and the market and we can blame all of these enlightenment thinkers for this modern solipsism and narcissism and obsession with self, but the idea that Smith and other moral philosophers of the enlightenment had is of human nature to be naturally sociable; that is, that we’re drawn to others, to do well for others, to take care of others, with the family being the model or the paradyn for the society as a whole.  The point market transactions is not the aggrandizement, that’s a by-product of it.  It’s to promote the health of the nation, you might say.

Ed:  You know, Peter, even if I disagreed with you, I couldn’t argue with you because we’ve run out of time again.  But remember, our conversation is always going on at our website.  Please pay us a visit and tell us whether the history of health care in America makes you optimistic or pessimistic about the path ahead of us.

Peter:  Again, that’s BackStoryRadio.org.  Don’t be a stranger.

Brian:  BackStory is produced by Tony Field, Rachel Quimby, and Catherine Moore, with help from Lydia Wilson and Bart Elmore.

Peter:  Jamal Milner mastered the show and Gabby Alter wrote our theme.  BackStory’s executive producer is Andrew Wyndham.

Ed:  Major production support for BackStory with American History Guys is provided by the David A. Harrison Fund for the President’s Initiatives at the University of Virginia, the National Endowment for the Humanities, the University of Richmond, Carrie Brown Epstein and the W.L. Lyon Brown, Jr. Foundation, UVA’s Miller Center of Public Affairs, and an anonymous donor.

Peter:  Support also comes from James Madison’s Montpelier, Marcus and Carol Weinstein, Trish and David Crowe, and J.M. Weinberg.

Peter Onuf is the Thomas Jefferson Memorial Foundation Professor of History at the University of Virginia.

Brian Balogh is an Associate Professor of History at the University of Virginia and UVA’s Miller Center of Public Affairs.

Ed Ayers is the President and Professor of History at the University of Richmond.

BackStory was created by Andrew Wyndham for VFH Radio at the Foundation for the Humanities.

On this episode, the History Guys explore the origins of the health care debate, and try to explain how we wound up with a system so different from the European model. They hear from Jacob Hacker, author of the “public option” plan, about why lobbyists hold so much sway over health policy, and travel back to 1611 to visit colonial America’s first hospital. They also hear the story of how inoculation first came to the New World.

Full Transcript

Guests Include:

• Jacob Hacker, political scientist and editor of Health at Risk: America’s ailing health system and how to heal it
• John Pagano, Historical Interpretation Supervisor at Henricus Historical Park

Show Highlights

• The Health of the Nation — Jacob Hacker explains how we wound up with a health care system so different from the European model.
• Heathen Health — Nate DiMeo tells the story of how inoculation first came to the New World.
• Health Care in the New World — Catherine Moore visits Virginia’s Mt. Malado, the first hospital in the New World.

Cited:

• Photos of the recreated 17th century hospital at Mt. Malado: 1, 2, 3
• “The Memory Palace,” Nate DiMeo’s podcast about American history

Web Exclusive

Call of the Week
Abe from Montreal wants to know more about the military metaphors we use to talk about public heatlh

Further Reading

Want to dig deeper into the history of health care? Check out this list of resources compiled by the History Guys to learn more.