"Houdini and the ghost of Abraham Lincoln," ca. 1920, Library of Congress

Halloween – despite its solemn Celtic roots – has become a safe way for Americans to transgress social norms and toy with the idea of ghosts in a family-friendly fashion. But for some, spirits from another plane have always been a very real part of life on this plane.

On this Halloween special, the History Guys explore Americans’ relationship with ghosts, spirits, and witches throughout our nation’s history. Why were colonists so fearful of New England “witches”? How is it that progressive social reformers found a home in the Spiritualist movement of the 19th century? Why do new media technologies always conjure talk of the undead? Can social upheaval help explain our history with the ineffable?

Guests Include:

• Ann Braude — Director of the Women’s Studies in Religion Program at Harvard Divinity School and author of Radical Spirits: Spritualism and Women’s Rights in Nineteenth-century America
• Cara Seekings — Spirit medium and resident at the Lily Dale Assembly
• Nate DiMeo — listen to more of his stories about the forgotten corners of American history at thememorypalace.us.

Web Exclusives

• Listen to an extended version of Ed’s interview with spirit medium Cara Seekings.
• Call of the Week: Dawn from Charlottesville asks about the history of Halloween mischief

Further Reading

• A list of recommended readings from BackStory staff
• Want to dig deeper into the history of the Supernatural? Check out this list of resources put together by the History Guys to learn more.

• Listing of the music heard in “American Spirit”
• Full transcript of the show

• 19th Century Guy Ed Ayers speaks with Cara Seekings, a spirit medium living in the Spiritualist community Lily Dale, in upstate New York.

]]> http://backstoryradio.org/american-spirit-web-exclusives/feed/ 2 http://backstoryradio.org/american-spirit-music-listing/?utm_source=rss&utm_medium=rss&utm_campaign=american-spirit-music-listing http://backstoryradio.org/american-spirit-music-listing/#comments Tue, 19 Oct 2010 15:24:50 +0000 cm6ay http://backstory.vfhblogs.org/?p=1917

This is a listing of the music used in the BackStory episode, “American Spirit: A History of the Supernatural,” broadcast in October of 2010. You can listen to the entire episode here.

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Requiem Mass in D Flat: Introit and Kyrie
The Choir of All Saints
Gaudeamus: Music for the Feasts of All Saints and All Souls

In California
Joanna Newsom
Have One On Me

Some Trust All
Moondog
Moondog 1 & 2

Song for Jesse
Nick Cave & Warren Ellis
Music from The Assassination of Jesse James

The Tartu Piano
Max Richter
24 Postcards in Full Colour

Ondule
Mathieu Bodgaerts
Super 2

Stereo Music for Farfisa Compact Duo Deluxe
Keith Fullerton Whitman
Multiples: Stereo Music for Acoustic Electric and Electronic Instruments

Cuban Lullaby
Mario Bauza
Tanga

Triangle Walks
Fever Ray
Fever Ray

Simple X
Andrew Bird
Armchair Apocrypha

An Animated Description of Mr. Maps
The Books
Lost and Safe

Here Before
Vashti Bunyan
Lookaftering

They Convene
Derek de Koff

Acera or the Witches’ Dance
Yo La Tengo
The Sounds of the Sounds of Science

—–.  A Republic of Mind & Spirit: A Cultural History of American Metaphysical Religion. New Haven: Yale University Press, 2007.

Andersson, Rani-Henrik. The Lakota Ghost Dance of 1890. Lincoln, NE: University of Nebraska Press, 2008.

Bender, Courtney: The New Metaphysicals: Spirituality and the American Religious Imagination. Chicago: University of Chicago Press, 2010.

Boyer, Paul & Stephen Nissenbaum. Salem Possessed: The Social Origins of Witchcraft. Cambridge, MA: Harvard University Press, 1974.

Butler, John. Awash in a Sea of Faith: Christianizing the American People. Cambridge, MA: Harvard University Press, 1990.

Cheroux, Clement, et al., eds. The Perfect Medium: Photography and the Occult. New Haven: Yale University Press, 2004.

Cook, James. The Arts of Deception: Playing with Fraud in the Age of Barnum. Cambridge, MA: Harvard University Press, 2001.

Demos, John. Entertaining Satan: Witchcraft and the Culture of Early New England. New York: Oxford University Press, 1992.  

Godbeer, Richard. The Devil’s Dominion: Magic and Religion in Early New England. New York: Cambridge University Press, 1992.

—–. Escaping Salem: The Other Witch Hunt of 1692. New York: Oxford University Press, 2005.

Kaplan, Louis. The Strange Case of William Mumler, Spirit Photographer. St. Paul: University of Minnesota Press, 2008.

Karlsen, Carol F. The Devil in the Shape of a Woman: Witchcraft in Colonial New England. New York: W. W. Norton & Co., 1987.

Kripal, Jeff. Authors of the Impossible: The Paranormal and the Sacred. Chicago: University of Chicago Press, 2010.

Leja, Michael. Looking Askance: Skepticism and American Art from Eakins to Duchamp. Berkeley: University of California Press, 2004.

Moore, R. Laurence. In Search of White Crows: Spiritualism, Parapsychology, and American Culture. New York: Oxford University Press, 1977.

Rogers, Nicholas. Halloween: From Pagan Ritual to Party Night. New York: Oxford University Press, 2002.

Santino, Jack, ed. Halloween and Other Festivals of Death and Life. Knoxville: University of Tennessee Press, 1994.

Sconce, Jeffrey. Haunted Media: Electronic Presence from Telegraphy to Television. Durham, NC: Duke University Press, 2000.

Underhill, Leah. The Missing Link in Modern Spiritualism. New York: Arno Press, 1976. (also available online)

Weisberg, Barbara. Talking to the Dead: Kate and Maggie Fox and the Rise of Spiritualism. New York: Harper Collins, 2004.

_______________________________________________________________________

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

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

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

P. Onuf: Hundreds of years before any of our centuries, peasants and laborers in the British Isles spent the last night of October wandering from house to house with lanterns made from hollowed-out turnips.  The flames represented souls trapped in purgatory and at each house, the exchange would follow something like this:  “you give me one of these bread loaves you’ve baked special for this occasion and in exchange, I’ll pray for your dead relatives to be released into Heaven.”  [music]

B. Balogh: Sound familiar?  Well, this proto-trick or treat ritual was known as Souling.  The occasion was known as Hallowtide and it coincided with the Catholic Holy Days of All Souls and All Saints.  The Protestant Reformation of the 16^th century officially put an end to All Souls Day but at least in the more Catholic corners of the kingdom, Souling persisted.

E. Ayers: And so did other Hallowtide traditions like cross-dressing and practical joke playing and all-round mischief making.  Now, it’s true that the more carnivalesque elements of Hallowtide have always been difficult to eradicate, even when they came to America where they ran up against Victorian impulses that tamed other kinds of once wild celebrations, but the holiday also has much more solemn roots in a time when spirits from another plane were taken very seriously indeed.

P. Onuf: And so on today’s episode of “BackStory,” we’re going to put aside the mischief and candy and devote the hour instead to Halloween’s more shadowy figures because not only do ghosts, spirits and witches have a history, they have an American history and it’s not just limited to Halloween.  For believers, the supernatural is a year-long phenomenon.

E. Ayers: That was certainly the case in my century, the 19^th century, when belief in an active spirit plane blossomed into a full-fledged American religion.  It was known as spiritualism and while there’s been plenty of debate about what to make of it, most people agree on when and where it started—1848 in a tiny town in upstate New York.  We’re going to hand things over now to Nate DiMeo here to tell the story of the Fox sisters.

Tape (Nate DiMeo): People said the house was haunted and that was even before the two girls started talking to the dead.  Kate Fox was 11, her sister Margaret was 14 when they moved into a little house in a nothing village 40 miles east of Rochester, New York, the little house that all their neighbors knew as the one where the traveling salesman had been invited in years before and was never heard from again.  Never heard from, that is, until one night in March of 1848, when their parents first heard the sounds.  Some nights it would sound like knocking.  Other nights like furniture moving and it always seemed to come from the girls’ bedroom but they’d open the door and their daughters would be fast asleep.  They never suspected that their daughters could be tricking them.  They were just young girls, but they were tricking them.  What started with a little tap tapping on the wall and tip-toeing back into bed with giggles muffled by pillows got more sophisticated as the nights went on and on the night of March 31^st, the Fox sisters revealed the latest in their growing repertoire of ghost-simulating techniques, the one that would place the two girls at the center of a cultural and religious revolution.  [music]

They called their mother into the room.  Margaret snapped her fingers once—snap–and they heard a tap in response.  She snapped twice—snap snap—and then tapped twice—knock knock.  The next night all of their neighbor squeezed into the girls’ candlelit room.  They explained that one tap meant yes, two taps meant no and then they started asking questions and in the morning, the audience left convinced that they had spent the night in the presence of a dead man and two girls with incredible powers.

Mr. and Mrs. Fox wanted to protect their daughters and they sent them to live with their responsible older sister, Leah, but they soon found that the ghosts followed the girls and Leah found an opportunity.  Soon, she had booked her little sisters in a 400-seat theater in Rochester.  By 1850, they were the toast of New York City.  People would wait in lines for hours to ask the sisters for words of their dead loved ones on the other side.

William Cullen Bryant caught their act.  James Fenimore Cooper.  George Ripley, though we don’t know whether he believed it or not.  The newspaperman, Horace Greeley, introduced them to New York nightlife and in the pages of his paper, introduced them to the world.  Soon people were holding séances like we hold dinner parties but even as spiritualism was sweeping the nation, it was leaving the sisters who started it behind.  [music]

On October 21^st, 1888, a 54-year-old Margaret Fox sat on the stage at the New York Academy of Music in front of two thousand paying customers and showed them all how she spoke to the dead.  She told them about how 40 years before back in that little house in the nothing town after a few nights of knocking and tip-toeing back to bed, she and her little sister realized that they could both crack their toes and no one could see them doing it and that when they did, people actually believed they were hearing from dead people, because sounds are hard to place in space and because you’ll believe pretty much anything if you really want to believe it.  She revealed all of that but not everything.

She didn’t tell them about how she and her little sister started to unravel not long after Horace Greeley introduced them to the world and to worldly things like power and wealth and wine.  She didn’t tell them about how her sister began to believe that maybe there was something to it all, even as they both struggled under the growing weight of their shared secret and she certainly didn’t tell them about the night she tested her own believed after scurvy had taken the life of a Polar explorer who had taken her heart and how she broke down and tried to contact him, tried to do for real what she had spent the last nine years pretending to do.  She didn’t say how she called out to him and how he didn’t call back and how she sat in the dark knowing that he never would.

Kate and Margaret Fox weren’t forgotten, but at the times of their deaths, they weren’t remembered fondly.  Each died poor, neither living to see 60.  The people who still clung to spiritualism were glad to see them go and people who never believed, they were, too.

Now, there is a postscript here that really can’t be resisted and you can do with what you will.  They tore that little house down in 1904.  Inside one of the walls near the girls’ room they found the skeleton of a man believed to be a traveling salesman who appeared to have been murdered a few years before the Fox family moved in.  It’s true.  [music]

P. Onuf: That’s Nate DiMeo.  You can listen to a longer version of this story as well as dozens more of Nate’s American history vignettes at the memorypalace.us.

E. Ayers: You know, guys, there’s actually a post-postscript to this story as well.  A year after Margaret Fox’s big confession, she sat down with a newspaper reporter and said, you know, it was actually the confession that was a hoax, that she really just did the confession for the money and in fact, you know, those spirit rappings had been real all along.  As it turned out, her recanting didn’t really change many minds one way or another.  Her credibility was pretty much shot by then, but what it did do is provide just enough fodder on both sides for people to continue debating this issue for generations, all the way up to the present day.

Tape (Cara Seekings): Yes, they did it.  No, they didn’t do it.  Yes, they did it.  No, they didn’t do it.  Back and forth.  Back and forth over many many years.

E. Ayers: That’s Cara Seekings.  When it comes to the question of whether the Fox sisters were faking it, she’s very much in the no-they-didn’t camp.  Now, she acknowledges that the world of spirit mediums has always had its share of frauds, but she says that when you strip away the showmanship, communication with another plane really isn’t all that out of the ordinary.

Tape (Cara Seekings): You know, we all grew up with that woman in our neighborhood who knew things before anybody else knew them.  She knew who on the block was pregnant and who on the block didn’t have enough food on their table and she just knew things and no matter what culture, I mean, the Italians call her strega, for example.  The Irish call her a wise woman or a seer, so there’ve always been those people, but I think the Fox sisters made it appear more organized.

E. Ayers: Now, the way she tells it, Cara Seekings herself has always been one of those people. When she was 3, the spirit of her long-dead grandfather arrived and told her things she’d have no way of knowing otherwise.  Ever since, she’s been carrying messages to people from the other side.  Seekings lives in a community of other spirit mediums in upstate New York just a couple of hundred miles from where the Fox sisters grew up.  It’s called Lily Dale and it dates all the way back to 1879 when American spiritualism was in full bloom, but from the vantage point of people living there today, spiritualism is very much alive and well.  This past summer, Seekings says, some 28,000 visitors came to take part in workshops and spirit readings and sessions of mediumship.  In fact, attendance was at an all-time record.

Tape (Cara Seekings): Many people, when they come, for example, for a reading, are seeking.  I mean, they’re searching.  They’re looking for confirmation validation that their loved one is okay.  Sometimes they’re looking for explanation.

E. Ayers: So, is spiritualism basically a religion of comfort?

Tape (Cara Seekings): I believe it is.  People who love us still love us, whether they’re on this plane or in another plane of existence, so my mother who was quite apt to give her opinion when she was on this earth and shall we say intervened without request, nothing’s changed.  She’s still quite apt to intervene without request.  [laughter]  [music]

E. Ayers: That’s Cara Seekings, a spirit medium living in the Lily Dale community of upstate New York.  You can find out more about Lily Dale and listen to more of our conversation at backstoryradio.org.

B. Balogh: Guys, Ms. Seekings referred to this phenomenon across cultures and I was wondering if you could help me just pin this down to the American variant.

P. Onuf: Yeah.  All people throughout time have believed that there’s a world beyond the material world we encounter but Americans in their can-do pragmatic sort of way have from the very beginning sought to engage with that world beyond through individual efforts, not through the mediation, not through the clergy, not through the church.  I think this is really part of the Protestant tradition.

E. Ayers: I’ve just one word for you then that kind of, as they say, problematizes that, Peter.  Think what it is that Cara Seekings is and what is required for connection with the spiritual world.

P. Onuf: Right.

E. Ayers: The medium.

P. Onuf: Yes, that’s a good point.

E. Ayers: So ironically, it’s Protestant in the sense that it doesn’t exist in a church but I think what’s strange about it is they’re saying only a few people actually have the gift.

P. Onuf: But I think the promise really is that this medium is in some senses just the tool or the instrument does not have authority.  The authority comes from that other realm–

E, Ayers: Right.

P. Onuf: And it’s enabling people to hear a language they couldn’t understand otherwise.

E. Ayers: So it’s like a Protestant minister who comes in and says here’s what the Bible says.  I’m going to translate that for you, but I have no real authority because this is between you and God.

P. Onuf: That’s right.  And everything in between fades away.  That is, institutions of hierarchy and control.  Instead, this is the fantasy and it’s an American fantasy that we encounter the cosmos on our own.  [music]

E. Ayers: Peter, I have news for you that’s a lot less cosmic and that’s that it’s time for a quick break.  When we get back, we’ll hear what the movement to abolish slavery had to do with those rap rap rappings in the night.

P. Onuf: More “BackStory” coming up in a minute.  Don’t go away.  [music]  We’re back with “BackStory,” the show that looks to history to explain the world we’re living in today.  I’m Peter Onuf, the 18^th century guy.

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

B. Balogh: And I’m Brian Balogh, 20^th century history guy.  With Halloween in the air, we’re spending the hour looking at how previous generations of Americans have contended with the spirit world.  In the first segment, we heard the story of the Fox sisters, the two girls from upstate New York who may or may not have really channeled the death, but who undoubtedly kicked off the spiritualist movement that flourished in the second half of the 19^th century.

P. Onuf: We also touched briefly on the way spiritualism dovetailed very nicely with the particularly American impulse to go it alone, to live one’s life without the interference of authorities from the church or any other institution.  Well, at the very same time that spiritualism was coming on the scene, another group of Americans was also starting to challenge established systems of authority.

Tape (Ann Braude): The first women’s rights convention in Seneca Falls, New York occurred just down the road from the first spirit rappings right about the same time and a lot of the same people were involved.  A lot of the people who attended the first Seneca Falls convention were also going to séances with the Fox sisters and seeking spirit communication.

P. Onuf: That’s Ann Braude, a historian at the Harvard Divinity School who’s written about the intersection between spiritualism and radical politics and those radical politics weren’t limited to feminism.  In fact, Ann told me it was a small group of very active abolitionists who first took the Fox sisters seriously and helped organize the girls’ first public séances.

Tape (Ann Braude): Now, why would abolitionists and reformers care about spiritualism?  This is the big question.

P. Onuf: One answer, says Ann Braude, is that many of those abolitionists were also Quakers.  Like spiritualists, Quakers didn’t have much use for religious authorities and also like spiritualists, they were very much into the individual soul.  Quakers believed in the inner light, that there was something of God in each person and so the possibility of communicating directly with departed souls was, to Quakers, kind of like, well, talking to God, but then there was also that issue of authority.

Tape (Ann Braude): What the radical abolitionists believed was that slaveholders were usurping the place of God by asserting their authority over one of God’s creation.  Now, once this issue of slavery raised this question about human authority over other human beings, that issue got applied in all kind of other areas and that’s where we start to see the women’s rights movement emerging out of the abolition movement.  Spiritualists saw that when a husband exercised authority over a wife, that was also usurping the place of God, so spiritualists really pushed this idea of self-sovereignty and they really understood it also as extending to the marriage relations and this is where spiritualists get involved with free love.

Now, when we hear the term free love, we think about a kind of libertarian sexual license.  That’s not what they meant.  Often, free love, for spiritualists, could result in a much more restrictive approach to sexuality because they believed that each of us has a spiritual affinity and that that’s foreordained by God and that if we are married to someone who is not our true affinity, that’s not a real marriage, so if you’ve found yourself married, as I believe many people in America have, to someone who is not your true spiritual affinity, they would condemn sexual contact within that marriage and see it as only something that could occur in these very special circumstances.

P. Onuf: So, Ann, here’s another example of what would in Victorian America be seen as a transgressive dangerous attitude that’s become pretty much standard in modern America, that is, the belief in at least the fantasy of romantic love and that spiritual affinity is pretty much mainstream.

Tape (Ann Braude): I think you’re right.  That has become a very mainstream idea.  Spiritualists are not the only ones who contributed to the notion of romantic love.  Many strains of Protestantism did move in that direction in the 19^th century, but spiritualists did push it to an extreme position which is not that different from what we see today.

P. Onuf: So, in many ways, when we think back to the spiritualists, there’s a kind of a shock of recognition in their positions.  On the one hand, they’re at the margins, they’re radical free spirits.  On the other hand, we can identify with them as their audiences could, large audiences could, in the 19^th century.

Tape (Ann Braude): That’s right.  I think that in some ways it’s easier for us to identify with spiritualists than it was for people in the 19^th century because the ideas of Calvinism, the ideas of infant damnation, the idea that one member of your family might go to heaven and another might go to hell and that your immortal souls would be separated for eternity, those are much less familiar ideas today than they were at the time when spiritualists were challenging them.

I think the large crowds drawn by spiritualists in the 19^th century also reflected the time they were living in.  There was no television.  There wasn’t a lot of excitement.  When the spirit medium came to town, that was something to see and people did, whether they believed in it or not, they went out to see this and many people reported that that was the first time that they had seen a woman speak in public and many of them were very surprised by what they saw and even if only a few of those people were converted to spiritualism, with spirit mediums traveling throughout the country, that amounted to a significant movement.

P. Onuf: In some ways, if spiritualists were challenging prevailing values, particularly in the Calvinist establishment, at the same time they were emphasizing family values because spirit communication was overwhelmingly with family members, so in some ways, they were ultraconventional in the emphasis on family values.  I wonder if you could tease out that paradox.

Tape (Ann Braude): You’re absolutely right.  In many ways, spirit mediums and spiritualism pushed to its logical extreme, the direction that 19^th century America was moving in, of rejecting separation of families at death and we see that in the rural cemetery movement where cemeteries are starting to look a lot like the suburbs with family plots and beautiful green gardens in cemeteries where people can go to maintain those connections with their loved ones who are no longer with them, spiritualism says if we can keep those connections after death as many Protestants acknowledged at this point, then why can’t we communicate, why can’t we speak to them?

P. Onuf: That’s Ann Braude, Director of the Women’s Studies in Religion Program at Harvard Divinity School.  She’s the author of Radical Spirits:  Spiritualism and Women’s Rights in 19^th Century America.  [music]

B. Balogh: If you’re just tuning in, this is “BackStory,” and we’re talking about spiritualism and other instances of the supernatural in American history.  As usual, we’ve been inviting your feedback on Facebook and backstoryradio.org and our producers have invited a few of the people who left comments there to join us on the phone.

P. Onuf: Hey, guys, we’ve got a call from Ripton, Vermont.  It’s Bryant.  Bryant, welcome to “BackStory.”

Caller (Bryant): Greetings, gentlemen.

P. Onuf: What spirit moved you to call us?

Caller (Bryant): Well, that’s pretty good.  I hadn’t thought about that cell phone as [00:30:36 / ??] before.

E. Ayers: Yeah, well, he thought about for about three weeks, Bryant, so don’t be that impressed.

Caller (Bryant): Well, I had a couple of questions for you guys.  I’m thinking about spiritualism and contemporary new media, so not our contemporary but 19^th century new media.  How did that impact spiritualism?  I’m thinking of electrical platforms, the telegraph, the telephone, the gramophone, the photograph, and the different ways that people reacted to them, the anxieties to light.

P. Onuf: Yeah.  I’ll just start off with a very very brief mention of spirit photography which was a big deal in the 1850s and ‘60s and it was really believed that the right kind of exposure, so to speak, would give you images of spirits and that this was actually a scientific enterprise to establish empirically the presence of spirits.  It seems so crazy to us because we associate it with anti-science and superstition, but spirits and spiritualism was really pretty mainstream and there were efforts by serious people we would call, and they would call themselves, scientists, to establish the authenticity of the spirit realm.

E. Ayers: And the telegraph was not unlike that.

P. Onuf: Good point.

E. Ayers: There was a sense that now that’s a new medium, so to speak, to really connect the departed with the living which is not so crazy when you think about it.

P. Onuf: I like that about medium, Ed.

B. Balogh: I do, too.

E. Ayers: You like that?  Okay.  You guys are quick on the uptake, but the thing that happened was, okay, we can now send messages instantaneously anywhere and not be there with our bodies.  Is that really so different from imagining that people who used to be here can now communicate with us, so, really, almost instantly, from the time the telegraph was invented, it became imagined as the physical embodiment of how we could finally do what we’d longed to do throughout humankind which is talk to those we’ve lost.

B. Balogh: Yeah, and what it really did, it in essence eliminated distance that stood between two people being intimate.  I mean, you couldn’t have that kind of intimacy when you had geographic physical distance, but the telegraph really kind of allowed that in an instantaneous fashion.

Caller (Bryant): You mentioned the intimacy of the telegraph, how you’re in the Crimea and I’m in Paris and you click and I hear the tat-tat-tap, but what’s interesting is that it’s still very thickly mediated by Morse.  It’s non-tangible.

E. Ayers: Yes, very much so.  We needed that so that we could invent the radio and television and have more intimacy, Bryant.

Caller (Bryant): I feel more intimate already.  [laughter]  But there’s a parallel to this which is that at the same time, the 1800s also sees the photograph, the gramophone, the telephone, which don’t have that kind of thick mediation.  I mean, they’re immediately apparent.  I mean, obviously we can get [00:27:41 / ??] and talk about the different levels of interpretation of photography, but you tapping in Morse requires decoding and if I can just use a pun, decryption, but if I hear your voice on the gramophone after you have died, that’s a profoundly different experience.  Do you think that the medium in spiritualism is doing more of the former, being the decoder, the encrypter, decrypter and less the latter in a media sense?

E. Ayers: Well, the people who really brought spiritualism to the American population, the Fox sisters, ironically, communicated with the spirit world through something much like Morse code.  It was knocking on the doors or somewhere in the room or some people said their toes, but that would be a skeptic speaking.  And so, ironically, when the first connections with others come through code, they’re imagining the connections to the dead coming through code as well and you’re exactly right, Bryant, what that means is that it requires an interpreter.  It requires somebody who is the equivalent of a wire, who’s more sensitive than normal people, someone who not only has the capacity to connect but also the intellect to translate and to speak through them, so I think that’s one reason the word was called “a medium” early is because it was really all about the interpretation, so, you know, it’s kind of funny, as people develop new technologies, the dead developed along with them.  [laughter]  And so we start out–

P. Onuf: And we never stop learning.  [laughter]

E. Ayers: Exactly.  It just shows that you’re never too old to learn a new trick, right?  Bryant, I just have to ask you—where does your very nuanced interest in this topic come from?

Caller (Bryant): Well, I’ve been studying how people create fiercesome stories about new media and in order to understand the current generation of how we do this in digital media, I’ve been looking back at antecedents through the past two centuries and, in fact, I’m almost willing to bet that no sooner do humans invent a new medium that we also figure out a way of haunting it.

E. Ayers: So how’s the Internet haunted?

Caller (Bryant): In all kinds of ways.  I mean, we have now it’s actually pretty common to expect that social media services have provisions for postmortem care for the data of members, so if you die, what happens to your Facebook?  In fact, you can do a kind of nice digest of American cultural history by looking at what we think the Internet is doing to us in a bad way, so there’s this mix of child pornography, violence, al Qaeda, and copyright violation and it’s a good question, what’s worse.

B. Balogh: That pretty much sums it up, doesn’t it?  [laughter]

P. Onuf: I thought it ended flatly, actually.

Caller (Bryant): Well, thanks, gentlemen.  This is a lot of fun.  I really appreciate it.

B. Balogh: Thank you, Bryant.  It’s a great call.

Caller (Bryant): Bye bye.

P. Onuf: Well, our own website, backstoryradio.org is definitely haunted by the spirits of a whole lot of listeners who have left comments about today’s topic.  I want to channel one of them for you guys.  This is from David [Hogg] who wants to know why spiritualism seemed to find a bump in popularity after major military conflicts, like the Civil War, World Wars I and II.  What do you think, Brian?  Is he on to something here?

B. Balogh: Yeah, I mean, we could just take the last 15 years or so.  There’s a Pew study that shows that the number of people who think that they have been in the presence of a ghost has doubled from 9% to 18% just in the last 15 years.

P. Onuf: Okay, your century–  What’s happening?  Come on.

B. Balogh: We’re currently fighting a couple of wars, but I’m not really sure that’s the reason.  In fact, I would point to economic uncertainty and during uncertain economic times, people are reaching out–

P. Onuf: Whoa, whoa–

B. Balogh: They’re seeking.  They’re looking for different kinds of answers.

P. Onuf: You’re suggesting there’s a material explanation for the belief in the spiritual.  It sounds very–  Oh, wow.

B. Balogh: I always do, Peter, but, you know, our caller, I’m inclined, knowing nothing about the 19^th century, to believe maybe on the money vis-à-vis the Civil War.

P. Onuf: Yeah, isn’t that right, Ed?  I mean, is there a lot of spiritual activity in the Civil War?

E. Ayers: There really was.  I was going to suggest that there’re just twice as many ghosts today as there were 15 years ago.

P. Onuf: But the accumulation over time, I mean, really–

E. Ayers: Yeah, exactly.  You know, in all seriousness, obviously the Civil War was a time of enormous suffering and loss and we’ve got to remember that the Fox sisters, that’s only 12, 14 years before the outbreak of the Civil War and so spiritualism is already going full bore at the time the Civil War breaks out.  And almost immediately people start wondering if there’s not some way to talk to our lost son because one of the horrible things about the American Civil War with the new artillery and other forces of destruction, that bodies just disappear, are vaporized, and people don’t have dog tags and so that sense of longing is even stronger when somebody dies a thousand miles from home and nobody has any idea where he might be.

P. Onuf: And, Ed, many of the soldiers who die are quite young.  I mean, these are people who are just leaving home for the first time or who are recently established.  Some are married, of course, but these are soldiers who never had a chance to fulfill their lives on earth.

E. Ayers: No, that’s right, and the average age of the Civil War soldier is 21 years old and here, these are people, literally as they would’ve said at the time, in the full flower of manhood and just when that comes, they are suddenly gone, so you would’ve found all across America, I think especially in the North, séances and unified attempts, not to mention, of course, many desperate prayers when people are alone, that they might hear a word of encouragement, of connection that even though they had been destroyed on the battlefield before they’d had a chance to really live their lives, that on some sphere they were happy, that they were fulfilled, that they were at peace, and that they were in touch with their family back home, so it’s not a surprise that Abraham Lincoln and Mary Todd Lincoln actually have séances in the White House to talk to their son who died not in war, but way too young, and when they did so, there was no great scandal that this was some rise of superstition in the White House.  This wasn’t some scandal, but rather another heartbreaking version of the same kind of conversation that people all across the country were trying to have.  People understood the longing to talk to someone who’d been lost way too soon.  [music—“Once I had a child.  He was wilder than moonlight.  He could do it all.  Like he’d been here before . . .”]

It’s time for another short break, but don’t go away.  When we get back, we’ll put aside the spirits and move on to those witches and we’ll take more of your phone calls.

P. Onuf: Remember, if you’d like to be a caller on a future show, have a look at our website to see the topics we’re working on.  That’s backstoryradio.org.  We’ll be back in a minute.  [music]  This is “BackStory,” the show that takes a topic from the here and now and plumbs its historical depths.  I’m Peter Onuf, your guide to the 18^th century.

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

B. Balogh: And I’m Brian Balogh, guide to whatever is left over.  Today on the show, we’re taking on some of the spirits, witches and other supernatural phenomena that have haunted the American past.  We’re also taking on some of the listeners who have been haunting the “BackStory” website.

P. Onuf: Hey, guys, we have a call from Tiffany in Chicago.  Tiffany, welcome to the show.

Caller (Tiffany): Hi.

P. Onuf: So, what’s on your mind or moving your spirit, as the case may be today?

Caller (Tiffany): Well, I’m wondering if you can comment on some ideas that I’ve read about regarding the Salem witch trials.

P. Onuf: Okay, the Salem witchcraft.  What about it?

Caller (Tiffany): Well, I’ve read a little bit about how some of the women who were accused of witchcraft, they were often wealthy or unmarried or kind of out of the norm of the regular role of women at the time.

P. Onuf: Right.  Well, there’re been lots and lots of books written about Salem witchcraft with lots of different explanations.  Many of them center as you have, Tiffany, on the question of marginality or the fancy word, liminality—people who are “in” but not “of” the community, who are “othered,” as the expression goes, who identify as alien and foreign, whether they are ethnically different and, of course, Tituba was a West Indian slave.  She’s the source supposedly of some of the magic lore in the accusations and it’s really a fascinating question of why this one community should be the site for this outbreak and for the subsequent conviction of all these witches, but maybe the most important thing to keep in mind is that everybody believes in white and black magic in this period, practically everybody.  In other words, when you make this accusation, it’s really reflecting an explanation for things that happened that makes sense, so in a way, I think we over-explain witchcraft because we want to translate it into 21^st century terms and say what would make us do something like this.  Is it generational strife?  Is it the search for some scapegoat or something or it ergotism, something in the–

E. Ayers: That’s what I think.  The LSD in the grain.

P. Onuf: Yeah.

B. Balogh: I’m sorry, guys.  Can someone tell me what ergotism is?

E. Ayers: The thesis is that there was a sort of fungus, I believe, that was in the wheat of Salem at this time and it literally had a mind-altering capacity.  I think this obviously bears the marks of its time of argument.  I don’t think this is taken too seriously now.

P. Onuf: No, that’s right.

E. Ayers: But as Peter was saying, the idea that we can reduce this sort of past belief into something social seems to be a kind of a modern reductionism.

Caller (Tiffany): Yeah.

E. Ayers: And obviously people are just setting aside the obvious argument that in fact there were witches [laughter] and, of course, from the viewpoint of the time, there were.  That’s just a category that we don’t believe exists anymore.

B. Balogh: So, Tiffany, can I steal a little of your caller time and ask the guys when we stopped believing in witches.

Caller (Tiffany): Sure.  I would like to know that, too.

E. Ayers: So, in the 18^th century, right, Peter?  Is it the 18^th century?

P. Onuf: Yeah.  Really, I think in a serious way, an idea of modern Christianity began to dominate in pulpits throughout New England and British America and there was a movement away from magical explanation and an effort to suppress the idea that there were still crazy things, miraculous things, happening in our midst in an effort to understand God’s creation and what we would call rationalistic terms.

E. Ayers: So, in a way, it was empowering God.

P. Onuf: Yeah, I think so.  That’s the big move from a kind of a God and spirits who are eminent in everyday life to a more distant clock-maker God.

E. Ayers: Yeah, yeah, yeah.  But, Peter, I mean, the whole context of witchcraft was Christianity, though, right?

P. Onuf: Yeah.  That’s true.

E. Ayers: So, it wasn’t really just a rise of Christianity.

P. Onuf: Oh, no, I meant the triumph of what we could recognize as modern Christianity.  I think as you’re suggesting, Ed, we exaggerate the difference, the mystical magical elements are still very prevalent in many branches of modern Christianity so I don’t want to exaggerate the difference.  It’s just that there was a campaign from the pulpits to suppress magic and magical beliefs.

E. Ayers: Thinking about it from the perspective of the South which we would think would be a place if you didn’t really know much about American history, you would think it would be the most folkloric part of the nation and would be especially susceptible to this but, of course, the South prided itself.  In fact, Virginia looked down on New England because it seemed especially prone to stuff like witchcraft.  I mean, that was the main way to explain abolitionism and feminism away.  These were the people who also believed that there were witches.  [laughter]  Really, it’s true.

P. Onuf: No, that’s right.  But I just want to make a defense of my native New England ancestors.

E. Ayers: I’m not attacking them.  I’m just–

P. Onuf: Okay.  I don’t want to take this too personally, but I’m very upset with what–

E. Ayers: Yeah, that’s right.  And that is documented.

P. Onuf: You know Salem is all about, Tiffany, and guys, what Salem is all about is the legal system operating to sort out the evidence and to convict.  We focus on the irrational beliefs, the stupidity of these people, but what’s remarkable is the way–

E. Ayers: They go about it.

P. Onuf: They go about it.  That is, they had institutions, legal institutions, state institutions, that were capable of doing this and, of course, there was a great morning after, kind of we shouldn’t have done that, but it was the legal system in conjunction with popular beliefs that produces these results.

E. Ayers: Yeah, you know, the only thing we have in the 20^th century, Tiffany, that comes close to that is NFL replay.

Caller (Tiffany): [laughter]

P. Onuf: Oh, how about the World Cup, man?

B. Balogh: Well, yeah, they don’t have that.  They don’t have it.  That’s exactly my point.

E. Ayers: This is very amusing, but I do believe you’ve had witch trials in your own century, Brian.  I think about the Army-McCarthy hearing.

B. Balogh: Very interesting.

E. Ayers: Why do we call them “witch trials” or “witch hunts”?  Why is that the analogy that we use?

B. Balogh: Well, I think that what these “witch hunts” imply is exactly what you guys were talking about.  It’s going back to all those fancy words that Peter used.  Let’s leave ergotism out, but there was a liminal, there was marginality, and if in fact those were the types of people that made for good witches, then the witch hunts of the 20^th century against communists, for the most part–

P. Onuf: Right, right.

B. Balogh: Were people who seen as marginal but insidiously blending in with the regular population and we needed witch hunts in order to sort them out.

E. Ayers: Well, see, and I think another implication of witch hunt is that to look is to find, right?  That’s the idea is that we’re going to go out and we’re going to find the source of an evil that we’re imagining and to actually look for that person is to guarantee you’re going to find them and I think, too, it has a lot in common with conspiracy theorists today.  There’s a fixation on evidence, right?

B. Balogh: And a fixation on suppressed evidence as well.

E. Ayers: That’s right.  Exactly.  So, you know, there’s something about the witch hunt that’s deeply American, I think.  It’s empirical.  It’s not mystical.  It’s legalistic.  It’s not folkish.

B. Balogh: Yeah, and what’s very American, it’s a group activity.  It almost always involves the collective.

E. Ayers: Right, right.  So, Tiffany, I mean, you’ve really conjured up–

P. Onuf: Oh–  [laughter]

E. Ayers: A bubbling cauldron of perplexing questions.

P. Onuf: Are you employing an accusation here?

E. Ayers: All I’m saying is there’s a strong hint of an eye of newt around here, if you know what I mean.

B. Balogh: Would that be coming from you, Tiffany?

P. Onuf: You are a bewitching caller, Tiffany, and thank you so much–

Caller (Tiffany): Well, thank you.

B. Balogh: Thank you very much, Tiffany.

P. Onuf: Bye bye.

E. Ayers: Bye.

Caller (Tiffany): Bye.  [music]

P. Onuf: We’re going to take another call now and it’s going to be from Elena out in Exeter, California.  Elena, welcome to “BackStory.”

Caller (Elena): Thank you very much.

P. Onuf: What’s on your mind?

Caller (Elena): Well, I know that the safest stance for historians and educated people is to take the debunking stance and to seek a rational scientific or psychological explanation.

P. Onuf: We don’t debunk here.  We rebunk.  [laughter]

Caller (Elena): You rebunk.  Okay.

E. Ayers: Well, we just bunk.

Caller (Elena): Well, which century would be the most likely to find someone who was actually trying to connect and to learn about the unseen and the unknown and not try to prove that these incidences are fake?

P. Onuf: Oh, we’re all raising our hands here.

Caller (Elena): You’re all claiming it?

P. Onuf: Yeah–

E. Ayers: Yeah, we’re dying–

B. Balogh: We’re all pointing at Ed.

P. Onuf: We’re going to let Ed, Mr. 19^th Century–

E. Ayers: Yeah, we think the answer is easy.

B. Balogh: Well, which is always a danger sign.

E. Ayers: Exactly.  Well, I’ll tell you what I’m thinking about which is the creation of the American Society for Psychical Research which took place in the 1890s which is the perfect overlap between sort of the birth of what we would think of as professional social science and medicine with a realization that the more you learn, the more that there might be to learn and so, really, one of my favorite people in all of American history, William James, that we think of as the father of pragmatism and he was the leader in all of this and he said, look, why would we rule out that there are dimensions of experience that we cannot understand, that we cannot see.  He said scientists are discovering all over the place that there are elements of the physical world that are invisible to us, so he actually risked quite a bit in his career to sponsor people who were claiming that they could communicate with and see elements of the psychic world, so I think it’s at the pivot of the 19^th to the 20^th century the combination of new means of exploring people and physical phenomenon with a belief coming off the great century of spiritualism.

P. Onuf: Yeah, yeah.

E. Ayers: But by this time you’ve had a half century of spiritualism being taken for granted as something that’s worthy of serious consideration, so to answer your question, it actually has a fairly clear answer and I’m going to say it’s in the 1890s, the first decade of the 20^th century.

P. Onuf: Well, Elena, I’m not going to argue with Ed.  We always defer to him on this program.  He’s a very dominant guy.  [laughter]  But what William James is doing is really a culmination of a long build-up.  The spiritualism actually is deeply rooted in the Scottish Enlightenment in the 18^th century and it’s the combination of looking for explanations with a new kind of scientific worldview but that accepts the reality of other dimensions.  I’ll just give you one example because all I know about is Thomas Jefferson but Thomas Jefferson is a materialist who believes that we continue in some form after life.

E. Ayers: He did?

P. Onuf: Yeah.  It was for me fairly difficult to come to terms with this whole notion of materialism that’s established in European philosophy of the endurance of matter and therefore a kind of eternity that’s only in the modern period that for most scientists we live in a disenchanted world and they’ll say, oh, yes, you can have faith and believe in stuff that we can’t explain, but that’s different.  That’s a very modern idea, isn’t it, Brian?

B. Balogh: Yes.  I think that’s right, Peter, but being the 20^th century guy and coming from the therapeutic century, Elena, I need to ask you how you feel about all of this and more specifically, what brings you to this question?

P. Onuf: Ohhh–

Caller (Elena): I have had experiences, both the group-type of experience with Ouija boards, levitations of tables, that I went into the experiences very very skeptical but my own actual experience of seeing it and of getting knowledge and guidance that was beyond the scope of the people who were actually doing it, that was one.  And the other experience that I had personally was at the death of somebody that I greatly respected experiencing automatic writing and channeling of her voice.

E. Ayers: You need to explain automatic writing to me.

Caller (Elena): Okay.  I was actually in the room where she died several hours before she died.  I would go sit in this room with a piece of paper and I would be I wouldn’t say asleep or in a trance state, but I wouldn’t be thinking consciously about what I was writing.  It would almost be going through me as I was writing it and I wasn’t aware of it until I would read it later and it was in her voice and in her style of talking and I never have really fully understood it.  It was a wonderful way to reconnect and people that have tried to explain it have said that was your grief or whatever or that was the part of her that you incorporated and all of that could be true, but also at the time right before her death, when I went into the room, there were a lot of people that loved her in the room.  I was aware of–  I don’t know how to describe it, but I aware of the presence of other beings in a way that I haven’t been since.  I think a lot of people have had that kind of experience, you know, a cold chill through the room or whatever, and maybe laughed it off or tried to deny it, but this experience before Betty—her name was Betty [Dietrich]—and before she died, was walking into a room and just feeling these incredible presences.

B. Balogh: Well, I wanted to say that while the 20^th century clearly can’t claim the peak position for the serious inquiry into the spiritual, there are spiritual organizations that live on and earlier this morning I went to a website for the National Spiritualists Association of Churches and I’ll just read you a little poem from the beginning of one of the sermons on their website.  “I believe that when you die your life goes on.  It doesn’t end here when you’re gone.  Every soul is filled with light.  It never ends and if I’m right, our love can even reach across eternity.  I believe.  I believe.”  So, there’s a little shout out for the National Spiritualists Association of Churches and so you’re not alone out there.

P. Onuf: Yeah.

Caller (Elena): Well, that is good to hear.

B. Balogh: Thank you so much, Elena.

Caller (Elena): Well, thank you.  I love your show and I really really appreciate your taking my call.

B. Balogh: Thanks, Elena.

E. Ayers: Bye bye.  [music]

B. Balogh: Guys, I have a confession.  I did not want to do this show and it has something to do with personal belief.  I have very little brief for spiritualism but listening to you, I have come to appreciate the great importance of people’s yearning to communicate and to transcend the media that is commonplace in their lives and the people who they can actually see and I’m going to confess for the 20^th century, I think Halloween is a pretty pale version of dealing with the really serious set of issues of death, of yearning, and distance that you Peter and Ed have been discussing during the show along with some of our callers, so I apologize on behalf of the 20^th century version of dealing with these issues.

E. Ayers: You know and I guess I’d like to put in a word for your century, Brian.

B. Balogh: Thank you, Ed.  Well, can I sing “Kum Ba Yah” in the background here?

E. Ayers: No, no, no.  Just think of it as 19^th century condescending to your century is the way I that I imagine it.  [laughter]  Halloween, obviously, is a transparent commercial ploy to sell a lot of candy and stuff, but we might think why do our children like it so much, you know.  And it’s a way of, okay, so there’s a cardboard skeleton hanging on the front door.  That’s a scary thing that we kind of use Halloween to tame, right?  And the idea of carnival, of getting a chance to dress up like somebody else, to be scary even though you’re five years old or whatever, I think we might cut ourselves a little bit of slack on this.  Halloween may be more of a continuum even though it’s in many ways a perversion of real spiritual longing.  On the other hand, it makes the unknown a little bit less frightening and I’m not sure that’s ever a bad thing.

B. Balogh: Ed, I couldn’t have said it better myself and it’s lucky you said it well, because we’re once again out of time.  I’m off to spend some quality time with a plastic pumpkin full of processed sugar.

E. Ayers: Which, of course, will give Brian the necessary energy to respond to all the comments you listeners leave for us at backstoryradio.org.  Stop in and let us know what you think.  Thanks for listening and Happy Halloween.

P. Onuf: “BackStory” is produced by Tony Field and Catherine Moore.  Jamal Milner mastered the show and Gaby Alter wrote our theme.  “BackStory’s” executive producer is the very spooky Andrew Wyndham.

E. Ayers: Major support for “BackStory” comes from the University of Richmond, The Joseph and Robert Cornell Memorial Foundation and the Colonial Williamsburg Foundation committed to the idea that the future may learn from the past.

B. Balogh: Support also comes from the National Endowment for Humanities, UVA’s Miller Center of Public Affairs, the 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.

Tape: 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]

Michael Kinsley, founding editor of Slate.com, talks about why he’s not worried about objectivity in the new media landscape.

Excerpted from: Just the Facts?: Partisanship & the Press

Matthew Goodman tells the story of an elaborate hoax involving “lunar man-bats” in the early days of the penny press.

Excerpted from: Just the Facts?: Partisanship & the Press

The History Guys discuss Thomas Jefferson’s sometimes contradictory ideas about a free press.

Excerpted from: Just the Facts?: Partisanship & the Press

Historian Marcus Daniel explains that the bitter rhetoric of editors in the 1790s played a key role in the birth of our democracy.

Excerpted from: Just the Facts?: Partisanship & the Press

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.

Guests Include:

• Marcus Daniel, historian and author of Scandal and Civility: Journalism and the Birth of American Democracy
• Matthew Goodman, author of The Sun and the Moon: The Remarkable True Account of Hoaxers, Showmen, Dueling Journalists, and Lunar Man-Bats in Nineteenth-Century New York
• Michael Kinsley, founding editor of Slate.com

Show Highlights

• Peter Porcupine — Marcus Daniel explains that the bitter rhetoric of editors in the 1790s played a key role in the birth of our democracy.
• Jefferson & the Press — The History Guys discuss Thomas Jefferson’s sometimes contradictory ideas about a free press.
• Lunar Manbats — Matthew Goodman tells the story of an elaborate hoax involving “lunar man-bats” in the early days of the penny press.
• New Media & Objectivity — Michael Kinsley talks about why he’s not worried about objectivity in the new media landscape.

Web Exclusive

The Adorable Origins of Yellow Journalism
When did news become so… jaundiced? It’s hard to say. But we do know when it got yellow. Associate producer Rachel Quimby tells the story of the Yellow Kid– an improbable character who found himself at the center of the late nineteenth-century newspaper wars.

Further Reading

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

Check out the music in our “Partisanship and the Press” show.