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Historical Perspective on Citizens United

Good essay from Prof. David Kaiser:

Political speech was free, or almost free, when the first amendment was passed, in two different ways: not only did the law now protect it, but the production and distribution of written materials (the only ones then available) was extremely cheap. In the early nineteenth century, yours truly might have started and turned out a weekly broadsheet almost as easily as I now turn out this blog. The point is not whether material like Hillary can be produced–of course it can, although it testifies to the decline of American political discourse in the last half century–the point is who will have the money to advertise it and broadcast it on cable television. Just as Anatole France remarked that the law impartially forbade both the rich and the poor from sleeping under bridges, the law now impartially allows David Kaiser, the heads of Citibank and Goldman Sachs, and Glenn Beck to make their views available on television to audiences of millions. The problem is that only three of them will be able to do so. The reformers of the 1900-80 era did not need rocket science to figure out that increasingly expensive modern forms of communication would obviously give incredible advantages to the rich and powerful and thus had to be regulated to give ordinary citizens a chance to be heard. A 5-4 Supreme Court majority has now thrown out a century of tradition and returned us to a form of political Darwinism (see my earlier posts on social Darwinism several years ago, easily located by a search at the top of the page.)

The current crisis in American life, I have been saying here now for five years, will lead either to a kind of New Deal revival or to a return to the Gilded Age. Karl Rove understands this and cited William McKinley as his political hero. The court just brought us immensely closer to a return to McKinley’s age.

Those like me who never have and never will abandon the New Deal principles they learned in their youth inevitably mourn the likely eclipse, for the rest of our lifetimes, of those principles. But once again my training as a European historian at least enables me to say that things could be much, much worse. Although the Republicans have frequently bent the law (most notably in 2000 and again this week), they have successfully undid the work of our parents and grandparents mainly through legal means. There is no Fascist movement or dictatorship on the horizon (although one could still emerge.) It was the America of the Gilded age to which my paternal grandfather came around 1900, making my own life possible. The liberal tradition will survive, even if will only be revived years after the Boom generation has passed from the scene. (I do not exclude the possibility that my own side might still prevail even in this crisis, but it does not look at all likely.) If the Founding Fathers managed to design a system that can preserve essential liberties and survive even severe swings to the right and left, they will still deserve our thanks.

Emphasis mine. Read the whole thing here.

The central theme of the recent book Packing the Court by Prof. James MacGregor Burns is the undemocratic and unconstitutional rise of Supreme Court power. He writes (emphasis mine):

In retrospect, the court has far more often been a tool for reaction, not progress. Whether in the Gilded Age of the late nineteenth century or the Gilded Age at the turn of the twenty-first, the justices have most fiercely protected the rights and liberties of the minority of the powerful and the propertied. Americans cannot look to the judicial branch for leadership.

Confronted with what he calls “unelected and unaccountable politicians in robes”, Burns proposes that the only way to break judicial power is for the democratic branches of government to challenge it, either through a constitutional amendment, or a somewhat more daring strategy:

Confronted by a hostile court repeatedly striking down vital progressive legislation, a president could declare that there is no place in a modern democracy for unelected judges to veto twenty-first-century laws. The president would announce flatly that he or she would not accept the Supreme Court’s verdicts because the power of judicial emasculation of legislation was not – and never had been – in the Constitution. The president would invite the partisans of judicial supremacy to try to write that authority into the Constitution by proposing a constitutional amendment. Through their representatives in Congress and the state legislatures, the American people would be given the choice denied them in 1803: to establish in the Constitution the power of judicial supremacy, or to reject that power. Only by this route could judicial rule be legitimated, “constitutionalized.” In the meantime, until the matter was settled, the president would faithfully execute the laws the Supreme Court had unconstitutionally vetoed.

It would be a risky strategy, an open defiance of constitutional customs and the myths and mysteries that have long enshrouded the court. Traditionalists would be outraged. Professors of law would express their concern in learned treatises. Powerful interests with a stake in the status quo – business groups, conservative lawyers, and their supporters in the political class – would spearhead a campaign of opposition. There might even be demands for impeachment. In the ensuing turbulence, though, the president would have an enormous strategic advantage. He would need only to sit tight. The burden would be on his adversaries to initiate the new and momentous amendment to the Constitution and to obtain a mandate for judicial rule. For once it would be the foes of reform, not the reformers, who would have to go through the constitutional hoops of amendment, with all the traps and delays.

Above all, it would be a test of leadership, of the president’s ability to mobilize followers behind a transformational goal, as FDR had so markedly failed to do in 1937. He would present the idea for what it was – a revolutionary challenge to judicial business-as-usual, to minority rule by a handful of judges, a fight for the Constitution as the people’s charter, not a lawyer’s contract.[…]

If judicial rule was not ratified by the people in the amending process, the Supreme Court’s exclusive grip on constitutional interpretation would be broken. Shorn of its supremacy, the court would still retain crucial tasks. It would still be called upon to interpret ambiguous statutes, adjust conflicting laws, clarify jurisdictions, and police the boundaries of federal-state power – virtually all of its present responsibilities except that of declaring federal laws unconstitutional. It would simply be brought closer to the role the Framers originally envisioned for it.

Quotation above taken from the Epilogue, “Ending Judicial Supremacy”, to Prof. Burns’ book.

Burns seems to expect that a constitutional crisis of this magnitude will occur at some point in the future, perhaps in the near future. With Citizens United, the opportunity for the democratic branches of govt. to reform judicial power may have occurred before even he would have expected it. What are the chances that the Democratic leadership in Congress and the White House will challenge the court?

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Kaiser on Tea Party Movement

Former Professor David Kaiser, if I am reading him correctly, draws an analogy between the Tea Party movement and the Nazis.

All this came to the forefront of my mind because of the possibility—which many believe to be real—that a Republican could be elected to the Senate from Massachusetts next Tuesday, reducing the Democratic majority below 60, dooming the health care bill (which Republican Scott Brown promises to oppose) and paralyzing the Senate. But suddenly, another critical analogy came into my head—another election in another major western country, in the same year that Hoover defeated Smith, one that turned out the other way.


[Excellent history of the rise of the Nazi Party in Germany]

The Reichstag fire—a terrorist act, we now know, of a mad anarchist—allowed him to proclaim emergency powers and deputize the SA and SS as police auxiliaries, and the Reichstag voted its powers out of existence a few months later.

It is now exactly 80 years since 1930. The election in Massachusetts this Tuesday—which at the very least promises to be much closer than anticipated—offers a preview of what could happen in the fall. The United States isn’t Weimar Germany, not least because of our well-established two-party system. But the Tea Party movement is busily taking over the Republican Party (and in effect already controls its powerful propaganda ministries on Fox News and Clear Channel, something the Nazis never enjoyed.) That movement is based largely upon paranoia and absurd theories about who controls America, what the Obama Administration is doing, and why. (Rush Limbaugh, to whom I listened for a while today, insists that Obama has purposely wrecked the economy to make a statist takeover possible. He could not conceal his excitement over the possible Republican victory in Massachusetts and what it might mean.) And of course, one of their tactics is to pin the Fascist/National Socialist label on President Obama, a moderate liberal. Now while I am not accusing the Republican Party or the Tea Party movement of Fascism . . .

Good to know! And if Obama is a “moderate” liberal than, in Professor Kaiser’s reckoning, who would count as a moderate conservative? Olympia Snowe?

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Character, from von Ranke to Vietnam (1)

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from David Kaiser, “American Tragedy

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Whither and Die

We have had several interesting discussions about the views of former Williams visiting professor David Kaiser. Consider his 2000 article (pdf): “My War with the AHA.”

Essentially, a trend has developed over the last three decades not merely in favor of writing the history of hitherto neglected groups, including the poor, minorities, and women, but actively against writing the history of governments and their role in society or abroad. Exactly why this has happened is a complex question. Professional humanists are, alas, always eager for new approaches, since they help provide new generations of graduate students with dissertation topics. The new areas of study matched the political interests of a new generation of historians who sympathized instinctively with the disadvantaged, as, indeed, I always have myself. More recently, as shall see, the new emphasis has become connected to a new methodology which explicitly militates against studying white males, who, for better or for worse, have dominated modern western governments. And lastly, traditional but liberal historians like myself took a sympathetic view of the new history as a means of rounding out the profession, not realizing that it was instead likely to transform it entirely from the discipline to which we had decided to devote our lives.

Far from supporting the kind of history which I and others like me do–the kind of history which, since Thucydides, has helped western men and women to understand themselves and the political systems within which they have to live–the AHA actively opposes it and is progressively working to eliminate it. Council members will undoubtedly deny that that is their goal, and some of them will undoubtedly do so sincerely, but my story, I think–and many others besides–show very clearly that that is the effect of their policies. The organization is not worth saving, and with many of America’s finest historians joining the new, rival Historical Society–as I plan to do myself–it cannot be changed from within, the course that would have been my preference. I am sure the kind of history that the AHA now encourages is destined to wither and die, largely because it has nothing to contribute to society at large, and it seems quite possible that the AHA itself will wither and die along with it. If it does, so be it. History is, after all, a cycle of birth and death, and it is replete with stories of institutions which, like this one, have gone off the track and outlived their usefulness. I surrender, confident that time will vindicate my decision, and my fidelity to history of a different kind.

Comments:

1) Read the whole article for full context. I would be interested to read what Derek’s take is on Kaiser’s specific examples.

2) My central proposal/pipe-dream is that the next two historians that Williams hires be, first, an expert in US diplomatic history and, second, an expert in military history. The College has not had the former (except as visitors) since KC Johnson left more than a decade ago. Professor James Wood will be retiring soon. I do not expect that the College will do this because the people who run Williams do not think it is important to have such historians on the faculty. Anyone want to take the other side of that bet?

3) Kaiser wrote these words a decade ago. How is the “Historical Society” doing now?

UPDATE: Thanks to Professor McAllister for pointing out that Williams hired a US diplomatic historian, Jessica Chapman, 18 months ago. I am very glad to be wrong about that!

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Kaiser Responds

A recent post about an interview of David Kaiser sparked a fair amount of debate, which you can read in its entirety here. Kaiser’s comments in the original interview, about the postmodernist approach to history, were criticized by Derek Catsam, among others. We were pleased to hear from Kaiser in the comments, addressing some of the criticism. I thought it would be worthwhile to highlight his commentary and some of the responses to it in a new thread (the old one has gotten a little lengthy and out of hand).

Let me just try to distinguish three types of history which are getting mixed up here:

1. The study of decisions made by governments, based upon archival research, and incorporating insofar as possible all the important non-governmental influences on those decisions. Such work also often deals with the impact of those decisions.

2. The study of social groups, including workers and their families, peasants and their families, minority groups, etc., which originally was also based on the most thorough possible archival research. Such work was certainly valuable, particularly, in my opinion, when it took care to integrate the story of those groups into broader political developments.

3. The use of isolated incidents from the past, usually focusing on non-whitemales, to make broader “theoretical” points about race, gender, and class. That is what I meant by riffs–and that kind of history, unlike (2), really is outside the bounds, in my opinion, of what history was originally designed to be. I would guess that most issues of the American Historical Review now include at least two such articles.

I hope this will help everyone clarify their thinking.

David Kaiser, Naval War College

Catsam responded (slighty edited)

I think it’s great that David Kaiser came in to weigh in, and his distinctions are useful, if mechanistic. In current social history — in the overwhelming bulk of civil rights history, for example, which is at least in part social history, though part of my problem is that these very categorizations are in very real ways false, the overwhelming majority of work comes from area 2, if such an area really does exist beyond serving as a (somewhat) useful analytic schema.[…]

I am not the world’s biggest fan of the American Historical Review. It is the “biggest” journal in the field but I cannot honestly remember the last time I read a full article in it and the AHR is a classic case of why “biggest” does not equal “best” (and why things like “impact factor” are dreadfully misleading). But Kaiser’s assertion that there are at least two articles every issue that fit his category number 3, which he has so clearly drawn as a pejorative as to be self evident to anyone reading it in isolation, seems itself a rather unnecessarily broad (and perhaps self-serving inasmuch as it allows him to “validate” his views on changes in “social history” — quotation marks intentional) swipe. My suspicion is that historians who write such articles would categorically reject the categorization of their work that Kaiser leaves us with.[…]

I think [examples of] articles would be useful, sure. But I also think there is a huge burden of proof on someone asserting that those articles represent “The use of isolated incidents from the past, usually focusing on non-whitemales, to make broader “theoretical” points about race, gender, and class.” I also might reject the premise that using historical events to draw larger conclusions is problematic. That’s actually what most historians do. In fact, it’s hard to imagine history done otherwise other than huge synthetic works. I just think his third category is hugely problematic and any attempt to cram scholarly work into that box would be futile.[…]

Titles do not tell us much. But I think they can provide a starting point — they should at least let us know if we are drawing conclusions about non-whitemales from “isolated incidents.”

The last issue of the AHR is a bit odd, because it had but one article (”Tamil Diasporas across the Bay of Bengal,” which by no measure is about an isolated incident) and then an AHR Roundtable on “Historians and Biography” that included ten contributions of about ten pages each and an “AHR Forum” on Simon Schama’s “A History of Britain.” One would have to read all of the contributions, but I think it is safe to say: Not so promising for the assertion under discussion.

So let’s go back to the TOC for the April issue:

Two Articles:
“Mistaken Identities? Olaudah Equiano, Domingo Alvares, and the Methodological Challenges of Studying the African Diaspora”
“Expatriation, Expatriates, and Expats: The American Transformation of a Concept”
An “AHR Forum” on “The International 1968, Part II” with article-length pieces:
“Sons, Daughters, and Patriarchy: Gender and the 1968 Generation”
“Solidarity and Siege: The Latin American Left, 1968″
“Youth Movements: Travel, Protest, and Europe in 1968″

Now, we’d have to read the articles in full to know, but I’d like to know which these articles (never mind two an issue)one would like to argue contains “The use of isolated incidents from the past, usually focusing on non-whitemales, to make broader “theoretical” points about race, gender, and class.” The 1968 panel might be the closest, but only if one considers the global movements of 1968 to be “isolated incidents,” which would expand that label to an elasticity that would defy credibility. Let’s don’t confuse “stuff I don’t like” with some sort of fatal flaw in the profession or a subsection of the profession that happens not to overlap with our own specalties. I may not have an interest in Tamil Diasporas Across the Bay of Bengal because it is a long way from my own work. And I at most flipped through most of these articles. But I would not have the temerity to dismiss this work with the wave of a hand as a result.

dcat

Kaiser posted this earlier today:

Last year, the AHR devoted not one, but two issues to the year 1968. Those of us beyond a certain age remember some of the events of that year around the world, including:

1. The Tet Offensive, leading to a re-evaluation of US policy in Vietnam and the withdrawal of President Johnson.

2. An extraordinarily hard-fought and significant Presidential campaign, involving the assassination of a popular candidate, the emergence of George Wallace as a serious third-party candidate, and the dramatic beginning of the new Republican majority that more or less dominated US politics for the next forty years.

3. The Prague spring, a reformist-Communist movement in Czechoslovakia that seemed to offer the East bloc new hope, but was crushed by Soviet intervention.

4. The political crisis in France that was triggered by the student revolt (among other things), leading to a general strike and the sudden disappearance of President de Gaulle, who went to talk to the commander of the French Army in Germany to verify that he could count on the Army, if necessary, to maintain order. The crisis ended with a tremendous Gaullist victory in elections.

5. A student revolt in Mexico that was brutally suppressed, Tianimin-style, on the eve of the Olympics in October.

6. The first post-Berkeley major student revolt at Columbia, a harbinger of things to come over the next two years.

Now here are the titles of the articles commissioned and printed by the AHR:
#
AHR Forum: The International 1968, Part I
42
Introduction
Citation-Full Text-PDF Version (24 kB)
#
45
The Rise and Fall of an International Counterculture, 1960–1975
By Jeremi Suri
Citation-Full Text-PDF Version (561 kB)
#
69
“1968” East and West: Divided Germany as a Case Study in Transnational History
By Timothy S. Brown
Citation-Full Text-PDF Version (750 kB)
#
97
Japan 1968: The Performance of Violence and the Theater of Protest
By William Marotti
#
331
Sons, Daughters, and Patriarchy: Gender and the 1968 Generation
By Sara M. Evans
Citation-Full Text-PDF Version (503 kB)
#
348
Solidarity under Siege: The Latin American Left, 1968
By Jeffrey L. Gould
Citation-Full Text-PDF Version (883 kB)
#
376
Youth Movements: Travel, Protest, and Europe in 1968
By Richard Ivan Jobs
Citation-Full Text-PDF Version (867 kB)

That’s right: NONE OF THE DEVELOPMENTS THAT I MENTIONED were discussed more than tangentially, it would seem, in any of these articles. One of the questions we are debating, I think, is whether the kind of focus, if you can call it that, reflected in the actual articles published is a good thing. Obviously my answer is a resounding no–yet I am quite sure that the AHR editors are very proud of the shift in emphasis which they have encouraged.

May I say quite honestly that I do not hold it against younger scholars that they are following current fashions. That’s the price of working in a college or university. That is why, sadly, serious criticism of what is happening only comes from people at the fringes of academic life like myself (and my contemporary Camille Paglia), or from people who are retired, or from long-tenured chronic malcontents (that’s a term of endearment) like Allen Kors. Even most of the holdouts within universities–the older faculty who consistently draw larger enrollments because the subject matter appeals to intelligent young lay people like those we have heard from on this forum–generally prefer to keep their mouth shut, and I can’t blame them.

David Kaiser

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Postmodern riffs

David Kaiser, professor of strategy and policy at the Naval War College, talks about the future of traditional approaches to history and reflects on his time as a visiting professor at Williams:

Do you fear that the new methods, such as gender, are steadily replacing instead of assisting in our study of the interactions between states?

I hate to revisit past controversies but they do make my point.  One of the first major debates on H-Diplo [discussion list for academics who study foreign relations history] on these issues involved an article by Frank Costigliola about George F. Kennan’s long telegram.  Pointing out that Kennan repeatedly used the word “penetration” to describe Soviet behavior in Eastern and Western Europe in the wake of the Second World War, Costigliola argued that this was gendered language characterizing the Soviets as rapists.  In a long exchange I asked him to say whether he was actually arguing that Kennan had that in mind, or whether he was just, in effect, adapting the word to his own purposes.  I don’t think he ever clearly answered that question. And that’s a problem with post-modernist history, looking for “gendered” language and such in the past: they are not studying the past as such, not asking what words meant to those who used them.

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