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The ‘“Why” of American Exceptionalism: “Rutgers v. Waddington” Posted - May 17, 2018

What is American Exceptionalism? According to President Ronald Reagan, who used the term often while campaigning for president, it was America’s divine chosen-ness and moral superiority. The term, however, originated with a French visitor to America, Alexis de Tocqueville, who coined the term in his 1835 travel account, writing that “The position of the Americans is therefore quite exceptional, and it may be believed no democratic people will ever be placed in a similar one.” Sociologist Seymour Martin Lipset, took this idea a step further when he wrote in 1997: “Being an American is an ideological commitment . . .” a commitment in which “law is the only sovereign.”

What does American Exceptionalism have to do with a court case that was decided before creation of the U.S. Constitution? A great deal, actually. The case is “Rutgers v. Waddington.”

In Peter Charles Hoffer’s compelling book about the case, the better part of American Exceptionalism is the legal forgiveness of one’s former enemies.

At the center of Rutgers v. Waddington is Alexander Hamilton, who argued for the defendant in 1784. The war with Britain was over by then, but the infant Republic was embroiled in something of a cold war between Patriots and Loyalists, in what the author calls “the first American civil war.” At issue was property, property that had been abandoned during the war. Much of it was in upstate New York and owned by Loyalists who had fled the country. Now that the war was over, they wanted it back.

In the case of Joshua Waddington it was the opposite. He was a Loyalist who during the war had rented a brewery house in New York City from Elizabeth Rutgers, a Patriot who had fled the city. New York City was occupied by the British up to their departure in 1783, and Waddington had paid his rent to the British, who in turn donated the money to various charities throughout the city. Now that the war was over, Anthony Rutgers, acting on behalf of his mother, wanted back payment for the rent. A dispute ensued over the exact amount to be paid. The dispute turned ugly during negotiations when the brewery house mysteriously burned down. Suspecting the worst, Rutgers upped the amount to what today would be one million dollars, and turned to the courts for redress.

Prior to this, the New York state legislature had passed the Trespass Act, which tilted the advantage heavily in favor of the Patriots. Nonetheless, Hamilton saw an opportunity for himself and took up the study of law. Many of the Loyalists seeking redress were wealthy and able to pay healthy legal fees to regain possession of their property, which was considerable. In the immediate postwar years, where tensions still ran high, taking sides with the Loyalists was not the most popular thing for a Patriot to do, but Hamilton had a motive. He wished to create a lucrative law practice while redressing Loyalists’ grievances caused by The Trespass Act. Many were wealthy merchants with overseas business connections with ample investment capital that Hamilton believed was critical to jumpstarting the nation’s ailing economy. Rutgers v. Waddington was Hamilton’s first big case, and something of a test case at that. Should he win, it would set a legal precedent in the courts that favored Loyalists’ return to their former place in the American business world, and generate considerable new business for Hamilton’s law practice.

The odds of winning were stacked against Hamilton. The terms of the Peace Treaty were vague concerning the welfare of Loyalists, and the Trespass Act outright hostile. Hamilton turned to the writings of Blackstone and Vattel to buttress his case while arguing that the sovereignty of the people was not in the state legislature or the state constitution, but in Congress under the Articles of Confederation. “The first act of our government adopts it as fundamental law . . . these reflections teach us to respect the sovereignty of the union and to consider its constitutional powers as not controllable by any state.” This was heady stuff Hamilton was proclaiming, at a time when state power was considered equal if not greater than that of the Confederation Congress. Fortunately for Hamilton, he had a friend in the Mayor’s Court which tried the case, in whom he may or may not have shared his legal brief prior to the court’s judgement. Whatever actually did occur (the author is uncertain), Hamilton’s legal arguments were persuasive and carried the day for his client. Waddington paid a significantly reduced rental fee.

The case has since been considered an early milestone in developing the American doctrine of judicial review. Yet, there was more to the case than meets the eye. It set the tone for what it means to be an American—what “American Exceptionalism” is really about. Writes the author: “(Rutgers v. Waddington) stood for a commitment to resolve differences, even the most violent of differences, under the rule of law. It stood for the autonomy of the judicial branch in a system of checks and balances. It stood for basic fair play. In 1784 and 1865, the sense of fair play had been severely tested by civil warfare. But Rutgers and its legacy envisioned a polity in which former enemies could find neutral forums to resolve disputes and then willingly accept the decisions of these forums. To load all of this on one case in New York’s Mayor’s Court may seem overreaching, but at the time, contemporaries thought the case of great importance. If, in the course of nearly two and a half centuries of legal and political change, Rutgers’s significance has diminished, it is surely long past time to restore its place in the canon.”

Final note: there is more to Hamilton’s legal arguments than can be summarized in a review, which, to say the least, are fascinating and insightful in how Hamilton reasoned out his arguments—reason enough to read to this book.

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Ordering up a New World
Posted - Mar 18, 2018
They were 18th-century Scottish philosophers, and what they did was order up a new world that became the United States. Fittingly, they’re the subject of a recent book, “The Infidel and the Professor,” by Dennis C. Rasmussen. The “infidel” is David Hume and “the professor” is Adam Smith. The author is Dennis C. Rasmussen, associate professor of political science at Tufts University.

Hume was born in Edinburgh and spoke with a decided Scottish burr, while Smith, who was born a few miles to the north, in Kirkcaldy, Fife, did not. Both were highly gifted students. Hume attended Edinburgh University, but did not graduate. Smith attended Glasgow University, and did. Both suffered temporary breakdowns as a result of overstudy. Hume did not teach, and spent most of his adult life writing, which came easily to him. Smith taught at Glasgow U, and struggled with the pen. Neither married (few great philosophers do), although Hume did fall madly in love with a lady of Parisian society but ended the relationship fearing it would draw him away from his true passion, study and writing.

Hume wrote about human behavior, ethics, religion, political theory, economic theory, and authored a stellar six-volume history of England. Smith wrote two books, one concerning political theory, and one concerning economic theory.

Unlike a number of Enlightenment writers, neither Hume nor Smith were radicals. They did not advocate grand schemes for radically restructuring society. They embraced the benefits of the rule of law, limited government, religious tolerance, freedom of expression, private property, and commerce, while insisting that necessary societal changes should be implemented in a gradual, measured way. Unlike other revolutions to come, this was exactly the result of the the American Revolution–gradual rather than sweeping change.

“The Infidel and the Professor” is almost as much about Hume’s and Smith’s friendship as it is about their books. The author devotes approximately two chapters to Hume’s writings and two chapters to Smith’s: one to “The Theory of Moral Sentiments” and one to “The Wealth of Nations.” Of the two, “The Theory of Moral Sentiments” was more popular in Smith’s day. Meanwhile, across the Atlantic, Hume’s and Smith’s books were widely studied in America by the Founding Fathers, particularly Alexander Hamilton and James Madison. Thanks to the scholarship of historian Douglass Adair, we know that Madison was greatly influenced by the political theories of David Hume. Writes Adair: “It was David Hume’s speculations on the ‘Idea of a Perfect Commonwealth’ . . . that most stimulated James Madison’s thought on factions.” He goes so far as to say Madison had a copy of Hume’s book at his side while writing Federalist No. 10. For his economic ideas, Madison drew upon Smith’s “The Wealth of Nations.”

According to historian Forrest McDonald, it was the opposite with Hamilton. For his economic theories, Hamilton drew more on Hume’s economic theories, and for his political theories drew more on Smith’s “Theory of Moral Sentiments.” Unfortunately, Rasmussen does not discuss in any depth the actual influence Hume and Smith had on America's founding. That said, I enjoyed his book, and recommend it to anyone desiring to know more about two of the greatest and most influential writers of the 18th century Enlightenment. To learn more about their impact on America’s founding, I suggest “Novus Ordo Seclorum: The Intellectual Origins of the Constitution” by Forest McDonald; “Explaining America: The Federalist” by Garry Wills; and “Fame and the Founding Fathers” by Douglass Adair.

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Hue 1968—book review
Posted - Mar 05, 2018
January 31st marked the 50th anniversary of the Vietnam Tet offensive. The fiercest fighting took place in the ancient capital city of Hue (pronounced “Hway”). Mark Bowen, who gave us “Black Hawk Down” (1999), has written a book about it, entitled “Hue 1968” (2016). Below is my review:

The Vietnam War was thought to be all but over by January 1968. The commander of U.S. forces in South Vietnam, General William Westmoreland, declared the end to be in sight. In Washington D.C., Lyndon Johnson’s special assistant for National Security, Walt Rostow, told New York Times reporter Gene Roberts that, apart from a few “brush fire episodes,” the United States had won the war.

So it came as a complete shock when, in the pre-dawn hours of January 31,1968, the Tet Offensive was launched with deadly fury throughout South Vietnam. The taking of Hue was the primary objective, a bold undertaking that Hanoi believed would spark an uprising of South Vietnamese civilians, turn the tide, and win the war at long last.

After 24 days of bloody and unrelenting fighting—with 10,000 dead and 80 percent of Hue in rubble—U.S. forces took back the city. The cost was so overwhelming that American debate over the war was never again about winning, only about how to leave. Ironically, the reporter told by Walt Rostow the war over, was on the scene during the battle of Hue. His name was Gene Roberts. According to the author, Roberts’ reports for the New York Times were the first and among the best to come out of Hue.

The author describes “Hue 1968” as “mostly the work of a journalist,” the result of four years of travel (twice to Vietnam), investigation and interviews with those who were there. He tells the story from the points of view of American and Vietnamese politicians and generals as well as those who did the actual fighting. The result is a gripping day-to-day account of troop movements, fighting inside and nearby the city, and of the U.S. high command that was completely out of touch with what was taking place in Hue. General Westmoreland believed the thrust of the Tet Offensive was going to be directed at Khe Sahn, and planned accordingly for several weeks despite overwhelming evidence that the real target was Hue.

In the first days of fighting, the U.S. high command did not believe reports from the CIA, or from those fighting on the front lines, that the well-trained and well-supplied National Liberation Front (combined North Vietnamese and Viet Cong forces) had taken the city. Two companies—about 300 Marines—were ordered to attack a force far larger than anyone believed possible—10,000 Front soldiers who had sneaked into the city without detection. These marines suffered enormous losses as a result. When they informed the military command in nearby Phu Bai that they were vastly outnumbered, their reports were not believed. They were accused of exaggeration, timidity and even cowardice, and ordered to attack. As a result, entire units were badly decimated, by as much as two-thirds, and one unit almost completely wiped out.

Meanwhile, the U.S. command continued to send in small units while denying air, naval and artillery support for fear of damaging Hue’s historic buildings, and thereby embarrassing the U.S. All the while, a fleet of helicopters could not keep pace with the mounting casualties that needed to be airlifted to hospitals in Saigon. Confronted with overwhelming evidence, the U.S. command finally sent in the entire 1st Marine Regiment and part of the 1st Cavalry Division, plus aircraft and heavy artillery, and began taking back the city in grim block-by-block fighting.

Hue proved to be the bloodiest battle of the entire Vietnam War. When at last the few remaining Front soldiers fled for the countryside, Hue lay in ruins. Casualties—combatants on both sides as well as citizens—exceeded 10,000. U.S. Marines and soldiers killed were 250 and the wounded 1,554.

For most of the battle, General Westmoreland was in a state of self-denial, busy preparing for the attack on Khe Sahn that never came. It seemed Americans back home were better informed than the U.S. high command, having followed the daily news reports coming out of South Vietnam. CBS news anchor Walter Cronkite, a supporter of the war, was reading the daily news reports as well and becoming deeply disturbed. He flew to South Vietnam to see the battle of Hue for himself, something Westmoreland decided not to do. A few weeks later, Cronkite’s report on the CBS evening news confirmed what had been reported in U.S. newspapers for several years: America was losing the war, and the battle of Hue was yet one more example of U.S. high command playing fast and loose with the truth. Writes Bowden: “(Walter Cronkite) may not have declared an end to the war, but he had declared the end of something far more significant. For decades, certainly since World War II, the mainstream press and, for that matter, most of the American public, believed their leaders, political and military. Tet was the first of many blows to that faith in coming years. Americans would never again be that trusting.”

The first casualty of war is truth, someone once said. Both sides—U.S. and North Vietnamese—were guilty of withholding the truth in order to advance their cause. For U.S. soldiers in Hue, the results were tragic. Had their initial reports been believed, the outcome very likely would have been far different. Going in with full force at the outset would have avoided the slaughter and devastation that resulted. Fewer soldiers would have died or been wounded, not to mention the citizens of Hue trapped in the city by the incessant fighting, and the ancient city itself might have been spared.

Finally, the incredible sacrifices asked of those who did the fighting, American soldiers most of them 18-to-22 year-olds. Only a few of them actually volunteered for duty. None ever dreamed they would find themselves caught up in such a horrendous situation. Neither had the men who led them into battle, lieutenant colonels in their 30s who had volunteered for Vietnam to promote their military careers. The word “courage” seems hardly adequate to describe soldiers who, having seen so many of their own shot to pieces by snipers, are ordered to step into the line of fire for the upteenth time in a single day, knowing full well the odds of returning home alive or in one piece are slim indeed.

Whether you have no military experience or only a limited knowledge of the Vietnam War, the author makes events vivid and easy to understand. He reveals the battle for Hue as disorganized, and the fighting as gruesome and savage.

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Unforgettable Nat King Cole
Posted - Feb 19, 2018
Nat King Cole was versatile. He was a jazz pianist who quite by accident evolved into the smoothest of pop singers. His second biggest selling album was a collection of country standards. Swing or ballad, Cole made it seem effortless. Unlike Frank Sinatra, who worked very hard to milk a lyric for the subtlest emotion, Cole achieved the same effect with deceptive ease. Sinatra rehearsed long hours and sweated the details. Cole did not work nearly as hard. “Mine is a casual approach to a song,” he said. “I lean heavily on the lyrics. By that I mean I try to tell a story with the melody as background.” What follows are reviews of three of his most notable albums.

UNFORGETTABLE (1952-54)

The record industry had not yet figured out what do with the newly developed LP (long playing record) when UNFORGETTABLE was released in 1952. The possibilities were clearly evident for recording symphonies and opera, but pop tunes? UNFORGETTABLE was not of a whole but a collection of singles. But what a collection. Of the eight songs contained on the original 10” release, all but one were top 20 hits, with three having topped the charts as nationwide #1 hits: “For Sentimental Reasons,” “Mona Lisa” and “Too Young.” The eight songs were recorded between 1946 and 1951, when Cole was making the transition from jazz singer to pop vocalist. Ironically, the single, “Unforgettable,” which would became Cole’s signature song, didn’t actually reach #1, but peaked at #12.

By the time the LP was expanded to the eventual standard of 12”—12 song format in 1954, the transition was complete and four more top-20 songs were added in a new release: “Pretend,” “Make Her Mine,” “Answer Me, My Love” and “Hajji Baba.” In a sense, UNFORGETTABLE was Cole’s first greatest hits collection. What pulls the LP together thematically is that all the songs are ballads about young love. All but a few are arranged by incomparable Nelson Riddle. Thanks to digital transfers from the original source, UNFORGETTABLE sounds better than ever.

AFTER MIDNIGHT (1957)

After midnight is the witching hour of music, when old songs evoke old memories and musicians kick back and play the tunes they love to play, pleasing no one but themselves.

The album AFTER MIDNIGHT is Nat Cole returning to his first love—to jazz. The musicians are seasoned pros who enjoy each other’s company: Harry "Sweets" Edison on trumpet, Willie Smith on alto sax, Juan Tizol on valve trombone, a reunited Nat King Cole Trio, and the man himself on piano. Cool jazz? Try medium cool jazz, upbeat and understated, with Cole in the forefront, performing HIS standards: "Sweet Lorraine," "It's Only A Paper Moon," "(Get Your Kicks) On Route 66," and 9 others.

You could say AFTER MIDNIGHT is Cole's "Get Back" album, a return to his jazz roots. "Just You, Just Me" and "I Know That You Know" were in the original Trio's repertoire as instrumentals; here they are given vocal treatments. The rest of the tunes were new. No matter: Cole and company put their personal stamp on them all.

WHERE DID EVERYONE GO? (1963)

Frank Sinatra made a career singing saloon songs, as heard on such classic albums as “FOR ONLY THE ONLY” and “NO ONE CARES." Nat Cole's “WHERE DID EVERYONE GO?" is his only stab at saloon songs and, as with nearly everything he recorded, it's first-class through and through. The arranger is Gordon Jenkins with whom Cole recorded the multi-platinum “LOVE IS THE THING.” This time the mood is darker and more complex, 12 takes on love gone bad, mostly classic tunes from the Great American Songbook, among them "Say It Isn't So,” "If Love Ain't There,” "Spring is Here,” "The End of a Love Affair” and "Am I Blue.” Cole never overplays his hand; he plumbs the emotional depth of the lyrics and sings honestly. Like Sinatra, he had an unerring ear for finding the exact right mood and expressing it simply. And Gordon Jenkins, master of the orchestra’s string section, makes the perfect accomplice.

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Work of My Sons
 

Morning Softly - Water Echoes Movement
-Released in 2014. Bill made guitar riffs and synth tracks at home, got Lya Finston to write some lyrics and sing, and got Scott to provide some bass.

Morning Softly - Early Eerie Feeling
-Recorded in 2014. Songs written by Bill, at home. Synthesizers were added later. Some drumming done by Brendan Lenihan.

Scott Nisley - Brick City Skies
-Released in 2014. With his piano melodies and vocals, Scott entrusted the production of his album to several studio musicians.

The 45's - Roof-Hopping
-Recorded in 2010. A collaborative effort between Scott and Bill Nisley, Adam Sherman, and Zach Belka.


Oh, Yeah...
 

Richard Nisley's Brothers in Cars
Thanksgiving Day, 1967. From L to R: my brothers David, Charles, and Rob. Photo by John Nisley.
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