James McHenry was born in Ireland in 1753. His Scots-Irish family send him to America in 1771 after he became sick from studying too hard. He may also have been sent to check out the colonies in anticipation of the entire family’s eventual immigration. In fact, a year later, the McHenry clan settled in what were then (for only a few years more) the British Colonies.
McHenry finished his studies in Philadelphia before serving as an apprentice under Benjamin Rush. You may remember Rush as the doctor/patriot who signed the Declaration of Independence, the founder of Dickinson College and the mentor/teacher of both Meriwether Lewis (of Lewis & Clark fame) and future president William Henry Harrison.
Perhaps influenced by Rush, or maybe the whole Philadelphia experience, McHenry joined the cause of the patriots. After the British captured and then released him, McHenry served on the staffs of both George Washington and General Lafayette.
Two things about McHenry stand out in his long and illustrious career as a Founding Father. It’s likely you don’t know his connection to either.
The first is the “Star-Spangled Banner.” Francis Scott Key wrote the poem titled “Defence of Fort M’Henry” while watching the British bombard the fort in the Baltimore Harbor during the late evening/early morning of September 13-14, 1814. Those words would later become the lyrics of our national anthem. That fort was Fort McHenry, named after James McHenry.
The second is a story you’re no doubt familiar with, but less familiar with its source. Following the successful conclusion of the Constitutional Convention in 1787, McHenry wrote this story in his diary:
“A lady asked Dr. Franklin Well Doctor what have we got a republic or a monarchy. A republic replied the Doctor if you can keep it.”
For those curious, McHenry later added a footnote to this entry indicating the “lady” was Elizabeth Willing Powel, wife of Samuel Powel, the once (1775-1776) and future (1789-1790) mayor of Philadelphia.
“A republic, if you can keep it.” These words exemplify both the triumph and fragility of our grand American Experiment. At various times in our nation’s history, the citizens have brought us to the edge of Franklin’s stark warning.
It seems as if today is one of those times.
For all the power of its fundamental text, it remains the Bill of Rights, an addendum critical to passing the Constitution, that represents the foundation of our nation’s instruction manual.
And within that Bill of Rights sits its cornerstone, the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
For several decades now, America has gnawed at the sanctity of those words. Within the last week, we’ve seen two flagrant attempts to obviate the First Amendment.
Writing in the November 16, 2023 issue of The Chronicle of Higher Education, Richard Amesbury and Catherine O’Donnell of Arizona State University are none too blunt in their assessment. They title the article “Dear Administrators: Enough With The Free-Speech Rhetoric! It Concedes Too Much To Right-Wing Agendas.”
Their essential premise is: “Our contention is that calls for greater freedom of speech on campuses, however well-intentioned, risk undermining colleges’ central purpose, namely, the production of expert knowledge and understanding, in the sense of disciplinarily warranted opinion. Expertise requires freedom of speech, but it is the result of a process of winnowing and refinement that is premised on the understanding that not all opinions are equally valid. Efforts to ‘democratize’ opinion are antithetical to the role colleges play in educating the public and informing democratic debate. We urge administrators toward caution before uncritically endorsing calls for intellectual diversity in place of academic expertise.”
We might forgive these two professors for not understanding how once certain scientific theories have since been proven false (e.g., Phrenology, Steady-State Theory, Spontaneous Generation, etc..)
We are less forgiving (especially since Amesbury is a professor of religious studies and philosophy and O’Donnell is a professor of history) when their insistence on “expert knowledge” comes straight from the same Vatican Court that labeled Galileo as a heretic for his role in spreading “disinformation” (i.e., Copernicus’ theory that it was the Sun, not the Earth, that is the center of the Solar System).
Ah, “disinformation.” That’s the new buzzword for censorship. You traditionalists out there need not worry, though, for “hate speech” remains high on that same list of trigger words used to justify eliminating the First Amendment.
Our own Governor, seemingly inspired by such academic thinking as we see coming out of Arizona State, has decided New York State must step in to thwart wrongthink. As Democrats and Republican anti-Trumpers nation-wide spread mis-directing allegations that “Trump = Hitler,” Kathy Hochul has just instituted a new policy straight from George Orwell’s novel Nineteen Eighty-four.
On November 21, 2023, New York’s Governor announced she was allocating $3 million to fight hate speech. It may sound like a pittance, but it is the proverbial camel’s nose under the tent.
In doing this, Hochul appears to be using the outdated “clear and present danger” test to remove First Amendment protections. This standard emerged in Supreme Court rulings in the early twentieth century and lasted for about fifty years.
For the first century or so of its existence, the Supreme Court shied away from commenting on First Amendment issues. The earliest—and, until today, greatest—challenge to the First Amendment was the infamous Alien and Seditions Acts. Rather than ruling on this, the Supreme Court deferred to the legislature. When Jefferson defeated Adams for the presidency, he quickly and unequivocally reversed this law.
At the height of World War I and the rise of communism, the Supreme Court finally stepped in. In ruling against the Socialist Party of America official Charles Schenck, Justice Oliver Wendell Holmes created the “clear and present danger” test for free speech cases. He wrote, “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The Court expanded the definition of the test when it upheld the conviction of activist Eugene Debs later that year.
Succeeding Courts overturned free speech convictions because they failed to meet the standards of the “clear and present danger” test.
In one case, Justice William O. Douglas wrote, “a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
This represents the beginning of the unraveling of the “clear and present danger” test. In another case, Chief Justice Fred M. Vinson wrote: “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger.”
It was in that same case where Justice Felix Frankfurter’s concurring opinion finally ended the “clear and present danger” test by introducing the “balancing test.” He wrote, “The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process.”
The coming of the Vietnam War protests brought a series of free speech cases which essentially restored the First Amendment to its original purity (for non-commercial purposes, at least).
The Brandenburg v Ohio case in 1969 brought down the hammer when the majority ruled, “Our decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.”
In a different case two years later, Justice John Marshall Harlan II summed up the primacy of the First Amendment when he wrote in the majority opinion, “One man’s vulgarity is another man’s lyric.”
Of interest and relevance given the ongoing New York case against Donald Trump is the Supreme Court ruling in 1941 which provides that public criticism of court officials must not be abridged which it wrote, “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”
Finally, and to prove this is truly a bipartisan issue, we have Republican presidential candidate Nikki Haley, echoing Ron DeSantis’ similar sentiments, vowing to outlaw anonymous speakers on social media platforms. Granted, they both later qualified their earlier comments, but their knee-jerk reaction to unfavored speech shows neither side of the political spectrum is immune.
Maybe their reversal came about when a legal adviser reminded them that the Supreme Court stated the First Amendment preserves anonymity. In a 1960 case, Justice Hugo Black wrote in the majority opinion, “There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. … Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.”
Circling back to Hochul and her attempt to force school children to adopt whatever prevailing narrative New York State compels them to abide by, this, too, has failed to meet the standards of the Supreme Court. In one case, Justice Robert H. Jackson majority opinion plainly stated, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
Maybe those same school kids targeted by Hochul can remind her of that popular playground adage: “Sticks and Stones may break my bones, but words will never hurt me.”
You can’t be in favor of free speech and believe the government should ban “hate” speech you disagree with.
That’s how you lose a republic.
The Role Of The Historian
“Calm” and “undulating” might not go together at first glance but think of sinusoidal waves. They move up and down with precise regularity. That regularity equates to calmness. The “up and down” represents “undulation” defined.
Such is the role of the historian, who commands the log of the human ship through waves of foible fads, ever trying to keep it calm and undamaged, despite its erratic and often misguided crew.
“Memory, thy name be frailty.” The metaphor of this butchered Shakespearian quote suggests the theme of this essay. It also represents the burden of the historian.
Just what is the role of the historian?
And by “historian” I refer to the traditional “chronicler” of history definition, not the definition provided by New York State as it pertains to publicly appointed historians. This legal definition was provided in a previous Commentary (“The History of Local Historians,” Mendon-Honeoye Falls-Lima Sentinel, September 14, 2023). New York State law treats publicly appointed historians as those who support the research of others, not necessarily as those who conduct primary research (although many do).
If we are to go to what many consider the primary source for definitions (the Oxford English Dictionary), we see “historian” defined as “A writer of history, esp. one who analyses events critically, as opposed to a chronicler or compiler; an expert in or student of history.”
But the OED ain’t what it used to be, and its definition of historian may betray a modernist view that lacks the purity of the original intent of what a historian does.
Its rival reference guide, the Cambridge Dictionary, defines historian more succinctly as “someone who writes about or studies history.” As brief as this definition is, it leaves open the question as to whether the proper historian duties are one of providing a raw chronicle of primary sources or one of analytical interpretation.
Face it, interpreting the actions of others can be a fun parlor game. Reporters have an advantage over historians here. A good reporter might interpret a news story, but that interpretation doesn’t find itself in the original article unless it can be confirmed through interviews of at least two independent primary sources.
Alas, for historians, the primary sources died years, decades, even centuries ago. Unfortunately, modern historians who “reenvision” history are mere speculators. Speculation represents the dividing line between art and science, faith and reason, hearsay and scholarship.
Ouch. Especially that last one.
If anything, historians ought to view themselves and their occupation as one of academic integrity. The rigors of good scholarship does allow for speculative interpretation, but only if it is qualified as such and only as a suggestion for the direction of future research.
Here’s an example. Actually, two very similar examples.
We know that George Washington crossed the Delaware and that Gaius Julius Caesar crossed the Rubicon. Their later actions confirm why each general crossed these rivers. Those represent facts to chronicle.
What we don’t know is how they felt as they made the crossing. If we were a contemporary reporter, we would have asked them. This query then removes any need for interpretation.
But we can’t go back in time. As a historian curious about writing of these crossings from the personal perspective of Washington or Caesar, what should we do?
We have two choices.
We can imagine what they must have felt given the facts and circumstances known to us. This permits us to provide an interpretation of their feelings. This is what a good story-teller does.
Alternatively, we can find a journal or diary entry they might have made to describe their feelings. This is what a good reporter does.
Is one better than the other? From the point of view of a historian, as Jack Webb’s character Sergeant Joe Friday religiously said on Dragnet, “Just the facts, ma’am.”
Think about it like this. As eloquent as the prose may be, a fanciful interpretation is not the facts. If a historian writes this, there’s a risk some future historian will then reference it. Granted, that future historian makes the mistake of not relying on primary sources, but, after a few generations, that false story becomes the official record.
That’s not good history.
This dichotomy of “historian as chronicler” vs. “historian as interpreter” is as old as, well, history itself.
Many scholars agree with Cicero, who dubbed Herodotus as “the father of history.” His volume Histories chronicles detailed events of the Greco-Persian Wars. A newsman might refer to him as “the father of journalism” because his reporting relies exclusively in interviews with primary sources. Herodotus refrains from injecting his own interpretation of events. He tells us the “who,” “what,” “where,” “when,” and “how.” However, unless told to him by one of the people he spoke with, there’s very little of the “why” in his work.
For this, Thucydides derided Herodotus. Born a generation after Herodotus, scholars often refer to Thucydides as “the father of modern history.” In writing his History of the Peloponnesian War, Thucydides employed what has been called “scientific history.” This allowed him to accept a broader array of sources and to interpret what he found, including criticizing those sources.
Thucydides accused Herodotus of making up stories for the sake of entertainment and for blindly accepting what his primary sources told him. Herodotus justified the former by agreeing with the latter. It wasn’t his entertaining story, it was his source’s entertaining story.
Here’s the irony. By sticking to the facts (i.e., retelling – not reinterpreting – what the primary source told him), Herodotus gave future researchers clues to dig up.
And they did. Modern historians and archeologists have confirmed most of what Herodotus wrote.
We can describe the two Greek historians thusly: Herodotus was news. Thucydides was news and analysis.
Herodotus was a good historian. Thucydides was also a good historian, but you might need to work harder to strip away the facts from the interpretation.
Interpretation isn’t bad, but that’s not the essential job of the historian. The historian, first and foremost, must chronicle and preserve primary source information. This is so future historians have access to critical data.
Hmm, in retrospect, maybe the New York State definition of the duties of a public historian is spot on.