Paraguay remembers Pres. Rutherford 'Baller' Hayes; still scarred by 1860s war, Paraguay nears election

RBH & I at the Museo Municipal de Villa Hayes, Paraguay.
RJ Peltz-Steele CC BY-NC-SA 4.0

UPDATE, May 10: The incumbent Colorado Party prevailed in the Paraguayan presidential election on April 30.

The tie between 19th-century U.S. President Rutherford B. Hayes and the distant South American nation of Paraguay endures there today, resonating at the heart of issues in the upcoming Paraguayan presidential election.

Presidential Ballers

Comedian Stephen Colbert joked in October 2022 about Rutherford B. Hayes, bringing to mind a President of curious and far-ranging legacy.

Former President Barack Obama had released a get-out-the-vote video in which he informed young voters who he is and boasted of "the best jump shot in White House history." "He has the best jump shot," Colbert conceded in his Late Show monolog. "But not the best dunk. That was President Rutherford B. Hayes. The 'B' stands for baller."

Colbert showed an amusingly doctored image of a bearded and head-banded Hayes dunking (video below via Internet Archive).

The Real Rud B.

In reality, the "B" was for Birchard, the maiden surname of Hayes's mother, Sophia. She raised Hayes and his sister as a single mom. Hayes's father died before Hayes was born.

An Ohioan, Hayes was a lawyer and abolitionist. He made a name for himself with vigorous and creative representation of fugitive slaves. Hayes was shot while fighting for the Union in the Civil War. His military service was lauded by President Ulysses S. Grant (whose 201st birthday is upcoming), whom Hayes succeeded in the presidency in the Compromise of 1877, resolving the contested election of 1876. Part of the compromise involved withdrawing federal forces from the South, which did no favor for people emancipated from slavery. Hayes can be credited, though, for appointing "the great dissenter" of the Reconstruction era, John Marshall Harlan, to the U.S. Supreme Court.

The flag of Departamento de Presidente Hayes, Paraguay.
RJ Peltz-Steele CC BY-NC-SA 4.0

Villa Hayes

It happened, also in October 2022, that I visited a distant legacy of President Hayes, a city and department in Paraguay named for him. Departmental capital Villa Hayes, north of Asunción on the Paraguay River, is in the Gran Chaco region. The region was at the heart of the territorial conflict in the War of the Triple Alliance. The devastating and brutal guerilla conflict, the worst of its kind in Latin American history, embroiled Paraguay in war with neighbors Argentina, Brazil, and Uruguay.

Hayes exhibit at the Museo Municipal de Villa Hayes, Paraguay.
RJ Peltz-Steele CC BY-NC-SA 4.0

After the war ended, in 1876, Argentina and Paraguay disputed their post-war border and asked U.S. President Hayes to arbitrate. Though Argentina had substantially prevailed in the war, Hayes sided with Paraguay in the border dispute and awarded the country the bulk of the Gran Chaco.

To the present day, the region speaks to the arbitrariness of war. Beautiful as it is, the dry and sparsely populated Chaco has struggled to achieve agricultural and economic productivity. Moreover, the region was never really controlled by any of the modern nations that contested it, rather by the indigenous people who knew how to survive there and still do.

There is a parallel between this tribute to Hayes in Paraguay and the monument to President Grant in Guinea-Bissau that I saw and last wrote about in 2020. President Joe Biden recently having marked the 25th anniversary of the Good Friday Agreement in Belfast, it occurs to me that in modern times, the custom has ended of sitting presidents being enlisted personally in dispute resolution abroad.

Paraguayan Presidency

Relative to neighboring Argentina and Brazil, Paraguay lags in development, a long lingering effect of the War of the Triple Alliance. The settlement of the conflict left Paraguay as a buffer between the two Latin American powers. 

Paraguayans are frustrated by the chronic corruption and bleak jobs market that now threaten the long-running rule of the incumbent Colorado Party in the presidential election upcoming at the end of April. Still, the party, in the person of candidate Santiago Peña, an economics professor, has a sound shot at retaining power. Long historical experience with dictatorship manifests as distrust of challengers. Primaries in the fall were marred by a suspicious fire at election headquarters in Asunción. 

Polling in late March in the plurality-takes-all contest showed a narrow and probably statistically insignificant lead by attorney Efraín Alegre, a center-left candidate representing a coalition of more than 20 parties determined to displace the Colorado Party. Apropos of my recent lamentation on Chinese influence in Latin America, Alegre pledges to cut Paraguay's diplomatic ties with Taiwan to smooth the way for Paraguayan soy and beef exports to China.

Boosted twice by war, then by economic catastrophe, paper money tells the story of America

Notaphilist, historian, and my uncle, Armand Shank yesterday gave a fascinating talk on the history of banking and paper currency in Maryland for the Historical Society of Baltimore County.

From Shank's collection: Currency issued in Baltimore
by the Continental Congress, 1777

The history of money is, of course, the history of America.  The British initially held strict control over currency in the colonies, Shank explained, and, lo and behold, British banking rates and policies seemed never to inure to the benefit of colonists.  Local currency, besides federal "IOUs," sometimes appeared of necessity and represented resistance.  Benjamin Franklin Bache, grandson of Benjamin Franklin, was a publisher of money and used samples his grandfather brought back from Europe as models.  Shank showed one of Bache's products.

Late in the 18th century, the Continental government issued national currency to raise millions of dollars for the Revolution.  Acceptance of the currency was expected, Shank said, for refusing it would brand one a traitor.  After independence, the First Bank of the United States was chartered in 1791, but lasted only until 1811, a casualty of Jefferson's state-centric vision of federation prevailing over Hamilton's wish for a strong central government.  State and local money came back on the scene in a big way, notwithstanding the ultimately decisive U.S. Supreme Court approval of the Second Bank of the United States in McCulloch v. Maryland, the 1819 staple of the modern constitutional law class.  Shank shared images of money from Baltimore County in the early 19th century.  Counterfeits proliferated.

Shank's first acquisition

In the 1860s, it was the need to raise money for war that again prompted the assertion and mass issue of federal currency.  The National Banking Acts of 1863 and 1864 strengthened and standardized national currency and, by 1865, phased out currency issued by state banks.  Local banks continued to issue currency, but only with the imprimatur of a national charter system.  Financial crises early in the 20th century led to reforms such as the first Federal Reserve Act, in 1913.  Federal reserve notes as we recognize them today emerged from a more vigorous standardization policy at the start of the Great Depression in 1929.

Quonset-style home in 1948
(Ed Yourdon CC BY-NC-SA 2.0)

Shank shared images from his collection of notes issued by the National Bank of Cockeysville, the town in northern Baltimore County where Shank grew up.  A $20 note of the bank was the first in Shank's collection, coming into his possession when he was a boy.  Circa 1950, Shank's father, Armand Shank, Sr., took Armand, Jr., to see Alexander D. Brooks, a cashier whose name appeared on the currency and who lived still in Cockeysville.  Alas, Shank said, Brooks, then in his 80s, had little recollection of his work for the bank.  Brooks died in 1956.

I have fond memories of being a kid in the 1970s, playing with cousins in the backyard of Armand Shank, Sr.'s home, where Armand, Jr., grew up, in Cockeysville.  The home, built in 1950 and still standing, was of a quonset-hut style, unusual today.  Many such homes were once built in this cost-effective style to meet the demand for housing after World War II: the homestead of the Baby Boom.  I didn't know that at the time, of course; I was more interested in the vast volume of lightning bugs that populated the yard.  I remember the smell of the place, fresh cut grass with a not unpleasant hint of motor oil.  It charms me now to think of another boy in that same environment, a generation earlier, one day awakening to a passion for American history told through the lineaments of banknotes.

Armand Shank is a member of the Board of Directors of the Historical Society of Baltimore County.   He is co-author of Money and Banking in Maryland: A Brief History of Commercial Banking in the Old Line State (1996).  He has a new article forthcoming on the subject for History Trails, a publication of the society.

Attorney Scaturro talks monument metrics

Grant monument in Chicago (image CC BY-SA 3.0)

Attorney Frank Scaturro has written an in-depth, four-part-essay series on monument destruction for Emerging Civil War, a platform "for sharing original scholarship related to the American Civil War."  Here is part one, and here are links to all four parts.

Scaturro is president of the Ulysses S. Grant Monument Association and is working on a book about "New York City’s largely forgotten sites from the founding era."  I quoted Scaturro writing about Grant's civil rights record here on the blog back in November.  I put a couple of my own coins in the monument meter in October.

US President haunts African 'ghost capital'

Main traffic circle in Canchungo, Guinea-Bissau.
All photos RJ Peltz-Steele CC BY-SA 4.0.

Throughout Guinea-Bissau, in West Africa, characteristic landmarks found in town centers, parks, and traffic circles are large, dilapidated blocks of painted concrete, often graffitied. These blocks are actually bases that have held statues of prominent leaders during the country's tumultuous history since independence was declared in 1973.

For Guinea-Bissau, it's been a journey as rocky and potholed as the nation's roads. Independence from Portugal was hard fought, with the Soviet Union, Cuba, and China pouring in arms for the revolutionaries to the end of establishing a communist foothold in West Africa. Anti-revolutionary soldiers were mass murdered after their defeat. Subsequent instability and corruption led to civil war in the 1990s, and election turmoil and political violence marked the 20-aughts. The presidential election in 2019 was contested, and just this week, since inauguration of the ultimately recognized victor, there are reports of military intimidation of the courts. No wonder statues don't last long in poor Guinea-Bissau.

That makes one statue still standing all the more an oddity. In an overgrown park in the heart of the main town on Bolama Island, in the Bijagos Archipelago, at the center of low walls of crumbling concrete that once demarcated colorful stars, the likeness of 18th U.S. President Ulysses S. Grant rises defiantly.

The Grant statue is a curious throwback to Portuguese colonial rule. Actually, all of Bolama Town is a throwback to colonialism. Once grand Portuguese constructions crumble in slow decay in what's sometimes called Guinea-Bissau's "ghost capital." European powers such as Portugal favored locating their colonial bases of operations on offshore islands, where winds kept malarial mosquitoes at bay. Today the ghost capital is inhabited, despite its state; thousands of people live in subsistence, and sometimes dependent, conditions amid the ruins.

In the 1860s, President Grant became the mutually agreed upon arbitrator between Portugal and Great Britain over territory in the islands. After Grant awarded Bolama to Portugal in 1870, the Portuguese erected the statue to honor him. Notwithstanding the resolution of that dispute, and despite British efforts to aid the Confederacy and topple the Union in the Civil War, Grant was ultimately credited with strengthening U.S. relations with Britain during his two terms as President in the Reconstruction era. Grant proved so popular abroad that he and his wife embarked on a world tour after his presidency, and, with the imprimatur of President Rutherford B. Hayes, Grant inaugurated the custom of former presidents conducting informal diplomacy abroad.

The tale of Grant's Bolama ghost gained an unusual epilog in 2007, when the statue went missing. Ofeibea Quist-Arcton reported the story for NPR. Apparently stolen to sell as scrap metal, Grant was recovered in pieces, and authorities ultimately restored him--not how things usually work out for statues in Guinea-Bissau.

Ruins of Portuguese palace in Bolama Town

Abandoned cinema in Bolama Town

A storefront in Bolama Town painted for politics

Kids swinging in a refurbished Bolama Town park

Federal court holds Syria liable to U.S. family for $300m in killing of journalist Marie Colvin

Syria owes more than $300m in wrongful death damages to the family of American journalist Marie Colvin, who was killed while working for the U.K. Sunday Times covering the siege of Homs in the Syrian civil war in 2012, the U.S. District Court for the District of Columbia ruled January 30, per U.S. District Judge Amy Berman Jackson (e.g., N.Y. Times).

The Assad regime did not answer the lawsuit, and the court entered judgment by default.  The claim arose under the state-sponsored terrorism exception to the Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. § 1605A.  The exception was amended into the FSIA in 2008 to strengthen an earlier 1996 exception after claims against Iran faltered in enforcement.  Section 1605A spells out the existence of a private cause of action in federal law, irrespective of the vagaries of state tort law.  The court found that the Colvin family presented sufficient evidence to prove that Marie Colvin's death was an "extrajudicial killing," beyond the shield of FSIA immunity.  The law also excepts torture, aircraft sabotage, and hostage taking from FSIA immunity.

The case is furthermore noteworthy because the court awarded damages to Colvin's sister upon a liability theory of intentional infliction of emotional distress.  Typically in state law, actions alleging emotional distress inflicted on a "bystander" by the killing of a loved one fail for the plaintiff's inability to prove intent as to the suffering of the bystander.  However, in the Colvin case, the court reasoned that the very purpose of a terrorist attack is to inflict emotional suffering on third parties.

The court awarded the family $11,836 in funerary expenses and $300m in punitive damages, and awarded Colvin's sister $2.5m in damages for emotional suffering ("solatium").  Photojournalist Paul Conroy, who worked with Colvin and survived the Homs attack, told the BBC that the ruling is not about money, which the family likely will never see, but is important to de-legitimize the Assad regime in the community of nations.

Colvin's story is the subject of Under the Wire, a 2018 documentary film by Chris Martin, available on iTunes (trailer below), and A Private War, a 2018 dramatic film by Matthew Heineman (IMDb), starring Rosamund Pike, due for DVD/Blu-ray release on Amazon in February.  The screenplay derived from Marie Brenner's coverage of Colvin's life and death for Vanity Fair.

The case is Colvin v. Syrian Arab Republic, No. 1:16-cv-01423 (D.D.C. Jan. 30, 2019).  Judge Jackson is an appointee of President Obama and recently presided over the Paul Manafort plea deal.  In 2017, she dismissed a wrongful death suit arising from the Benghazi Mission attack, against Hillary Clinton, on grounds of official immunity.

Justice Oliver Wendell Holmes, Jr., was kind of a pompous ass

Justice Oliver Wendell Holmes, Jr. (FJC), “the great dissenter,” was kind of a pompous ass.  That probably should not have surprised me, given his birthright in Massachusetts aristocracy.  And that probably should not have been my chief take-away from the book, The Great Dissent (2013) (Amazon; Macmillan), the impressive accomplishment of author and law professor Thomas Healy at Seton Hall Law.  Somehow I am stubbornly surprised every time a person I admire turns out to be no more than human.

The subtitle of The Great Dissent reads, How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America.  That refers to a monumental shift, now legendary in constitutional law, that seemed to have occurred in Holmes’s thinking over the summer of 1919.  In the spring of 1919, Holmes and the Court majority were eagerly doing their part to condemn targets of the First Red Scare, such as labor agitator Eugene Debs, for criminal violation of the post-WWI Espionage Act.  Then in fall 1919, Holmes suddenly turns up in dissent to further convictions.  He used almost the same language, the same rules that he had authored and joined earlier in the year.  But in the fall, with not even a wink at the reader, he seemed to think the words had acquired entirely different meaning.

Partnering with Justice Louis Brandeis, Holmes’s powerful dissents in 1919 and following years outlined a philosophy of free speech that ultimately passed the test of time.  Holmes veritably gushed ideas, such as “clear and present danger” and “marketplace of ideas,” that became benchmark norms in 20th-century civil rights law—not only in the United States but in democracies around the world.

So what happened to Holmes in the summer of 1919?  To answer that question, Healy takes the reader on a spellbinding journey into the social and political dynamics of America’s intellectual class—and last survivors of the Civil War—as they struggled to maneuver the country in a new world order shaped by the ravages of an unprecedented war.

There is an apocryphal answer to the 1919 question.  The free speech analysis that Holmes and Brandeis worked out after 1919 bore a striking resemblance to an earlier proposition advanced by Judge Billings Learned Hand as trial judge in a 1917 case in federal court in New York.  Hand and Holmes knew one another, if not well, and their contrasting judicial philosophies, co-existing in era, frequently prompt comparison by scholars.  So it was once speculated that perhaps Holmes had met with Hand in precisely that summer.  It’s the kind of story that would make an exciting two-man show for the law-and-theater crowd.

As Healy tells it, Hand did play a role, if less direct, in reshaping Holmes’s thinking.  Another figure emerges as a key intermediary in Healy’s narrative, British political scientist Harold Laski.  Laski did interact with Holmes quite a bit, before, during, and after the summer of 1919, and his influence is plain.  Of course the full story is a good deal more complex, and Healy constructs it masterfully.  More than that, I won’t spoil.  Read the book.

Holmes in 1861 daguerreotype.

I was struck by three points of the story, and they all relate to Holmes not really being the paragon of personhood I wish he were.

First, Holmes was an elitist.  He read 50 books in the summer of 1919, Healy recounts.  He was always eager to immerse himself in the rich intellectual legacy of the Greek philosophers.  He was much less eager to take up Justice Brandeis’s invitation to visit textile mills in the summer of 1919 to witness for himself the unsettling state of labor and labor strikes in post-war America.  On the one hand, it’s fabulous that Milton’s Areopagitica and Mill’s On Liberty were part of the deep knowledge of the man who shaped modern free speech law.  On the other hand, it’s hard to tell whether he really understood the implications of dissent on the ground.

As my law school is now in the process of hiring a new dean, I think about Holmes's elitism in relation to the transformative trauma unfolding in legal education today.  Law schools are entranced with experiential education and are dumping jurisprudence in an effort to get students more time in practice training.  Ian Holloway and Steven Friedland recently located legal education in tension between a “grand university” model and a “Hessian craft guild" model.  Holmes was all grand university, and that is not ideal.  But modern free speech would not be what it is today if we were depending on the Hessian craft guild to build it.  It’s really important to have room for both.

Second, Holmes was a little slow on the uptake, even on free speech doctrine.  There was in fact correspondence between Hand and Holmes, though it pre-dated 1919.  And Healy reports how Holmes just missed the point.  Had he gotten the point, he might have started dissenting a bit earlier, and maybe even saved some demonstrators and harmless Bolsheviks from long prison terms.

A good example of Holmes’s fumbling start is the “clear and present danger” doctrine, which was born before the summer of 1919, but only later acquired its more rights-protective meaning.  “Clear and present” was indicative of Hand’s influence, suggesting as it did what today we might call a behavioral economic approach to legal reasoning.  But Holmes rather blew it, because his use of the test was highly subjective.  He gave the test no meaning, so allowed it to be perverted by the fever of the Red Scare.  Later evolution of the test would reveal a dynamic relationship between variables such as the “imminence” and “gravity” of the danger.  That more sophisticated analysis prophylactically protects speech that might be subversive, but poses no real threat, and also allows free speech doctrine to realize its critical anti-majoritarian function.  Hand understood that in 1917.  It took Holmes quite a while to work it out.

Third, Holmes was not a friend you could count on.  Amid the Red Scare, Holmes’s dear friends Laski and Felix Frankfurter, on the Harvard Law faculty, suffered virulent persecution for their politics and identities.  The “Red Summer” was the very summer of 1919.  Both men were sympathetic with labor, and both were labeled Bolsheviks.  Frankfurter, who was Jewish and Austrian, was further denigrated by post-war anti-Semitic and anti-German sentiments.  Critics of Laski, a British national, demanded his expulsion from teaching at Harvard Law.  Imagine!—persecution on a law faculty based on the politically correct zeitgeist.  How last century.

To be fair, Holmes and Harvard Law Dean Roscoe Pound did take steps to defend Laski and Frankfurter.  But their efforts, especially Holmes’s, were lackluster.  Despite the loving affection that Holmes professed for like-a-son Laski in private correspondence, Holmes resisted early entreaties to help.  Holmes was afraid of offending Laski and Frankfurter’s persecutors on the Harvard Law faculty, whom Holmes regarded as friends.  Holmes preferred to distance himself from the conflict and retreat to the sanctified solitude of his private library.  The great dissenter, a Civil War veteran wounded in action, whose famous diction dominated doctrinal opponents, shrank from moral defense of his friends, lest the comforts of his social and economic status be placed in jeopardy.   

Huh.

An honorable biographer, Healy is straightforward and matter of fact when it comes to Holmes the man.  Holmes was a voracious reader, brilliant thinker, and surely was one of the greatest jurists, perhaps the greatest jurist, in American history.  Civil rights as we know it today, and much of human rights as it is known in the world today, owes a debt to Holmes.

Holmes also cheated on his wife.

“If anyone, then, knows the good they ought to do and doesn’t do it, it is sin for them.”  James 4:17.