On the surface, the 1941 Oklahoma case was a painful shellacking, but it shocked the country and jumpstarted the civil rights movement 

The 1997 film Amistad chronicles an historic episode in which an American court tried kidnapped Africans for hijacking the ship hauling them to bondage. In it, an actor playing white antislavery activist Lewis Tappan suggests a wrongful conviction would suit the abolitionist cause more than an acquittal. A colleague decries Tappan’s eagerness to martyr innocents, but the fact is that instances of grave injustice often serve as catalysts for reform.

The Murder Trial That Powered Thurgood Marshall’s Fight for Civil Rights

Thus, one of Thurgood Marshall’s few courtroom failures helped dismantle American racism. In trying Marshall’s client William Lyons, convicted in 1941 of a heinous triple murder, Oklahoma authorities so abused justice that a community drenched in racial bias came to support an African American man wrongly accused. An appeal to the U.S. Supreme Court accomplished nothing. The justices distinguished between confessions made as a suspect was being beaten and those made hours after the beating had ceased, ruling that while the former were coerced the latter were not, even if the prisoner confessed out of fear that violence might resume. Marshall prevented a capital sentence. Lyons was paroled after doing 20 years and in time received a legal pardon for his “crime.” However, his conviction never was formally voided. Father and son John and Denver Nicks compellingly recount this underappreciated sequence of events in Conviction.

Elmer and Anna Marie Rogers and four-year-old son Elvie of Fort Towson, Oklahoma, died on New Year’s Eve 1939 by shotgun and arson. The killer or killers likely came from a nearby state work camp so ill-run—inmates were allowed to leave the grounds unsupervised—that Fort Towson residents had been complaining about the camp for years. 

An embarrassed Oklahoma Governor Leon Philips assigned the official inquiry to special investigator Vernon Cheatwood. Cheatwood suppressed evidence, bragged about giving  the third degree, and led police officers in blackjacking sharecropper Lyons, a known petty thief, into confessing. Given the era’s and the region’s prejudices, the state’s case might have gone smoothly even with the brilliant Marshall for the defense. 

However, so blatant was the prosecutorial crookedness that even staunch segregationists were thrilled by Marshall’s relentless exposé of racist authoritarian duplicity—a performance whose power attracted considerable attention and money to his courtroom campaign against racism.—James Baresel is a freelance writer living in Front Royal, Virginia.

Oliver Wendell Holmes: A Life in War, Law, and Ideas
By Stephen Budiansky
Norton, 2019; $29.9

When at 90 Oliver Wendell Holmes (1841-1935) retired from the Supreme Court, everyone agreed that he was America’s greatest legal mind. Judges rarely lead gripping lives, but no subject is dull in expert hands, and Budiansky has written a tour de force, helped by Holmes himself, a fascinating if only intermittently heroic figure. A Boston Brahmin, he dutifully entered Harvard, enlisted when civil war broke out in 1861, and served three years, suffering terribly. He was wounded three times, endured chronic dysentery, and almost died. Budiansky makes a case that Holmes’s war erased his idealism.

An abolitionist before the war, he showed little interest in blacks after. He despised reformers. At 40, a successful, respected lawyer, he published The Common Law, still in print and, in Budiansky’s eyes, “the single most important book in the history of American legal scholarship.” It opens with the oft-quoted sentence, “The life of the law has not been logic; it has been experience.” Holmes determined that English common law evolved through “legal realism,” in which court decisions accounted for human nature and public policy. This seems reasonable to non-lawyers, but before Holmes, judges labored to find and apply “the law,” enshrined in tradition or peerless authority such as the Constitution, with no role for compassion, tolerance and other messy concepts. Except for a few decades ending in the 1960s, legal realists have been a minority on the U.S. Supreme Court, on which Holmes served 1902-32. No gadfly, he usually voted with the majority—even when, during World War I, American law was strangling antiwar opinion. By the armistice he had changed his mind. In a classic 1919 case that saw radicals draw long prison terms for distributing leaflets denouncing U.S. intervention in Russia, his dissent still resonates—especially his statement that the best test of truth is its ability to get itself accepted in the competition of the market.

During post-World War II trials of communists and those of 21st-century Islamic radicals, judges, mostly dissenters, quoted Holmes. That hateful views deserve jail time seems reasonable to most Americans, judges included. The elderly Holmes became an icon as the embodiment of what a jurist ought to be. Humanitarian feelings were never his strong suit, but liberal colleagues like Louis Brandeis, Learned Hand, and Felix Frankfurter were not shy about giving advice during deliberations or complaining when his decisions fell short. They influenced but did not convert him. He denied Sacco and Vanzetti a stay of execution and pooh-poohed progressive programs except, sadly, eugenics.

In this outstanding biography Budiansky lucidly explains Holmes’s ideas, vividly portrays other legal figures of the era, and delivers an insightful portrait of Holmes himself that remains admiring despite no shortage of warts. —Mike Oppenheim writes in Lexington, Kentucky.

The Founding Fortunes: How the Wealthy Paid for
and Profited from America’s Revolution
By Tom Shachtman
St. Martin’s, 2020; $29.99

This cheeky, mildly revisionist account of America’s founding declares not only that that grand gesture cost money, but that rich folks paid the freight. Historian Shachtman observes that, aside from John Adams, Alexander Hamilton, and a few other middle-class strivers, the Revolution was the work of planters, merchants, and other pillars of the American elite.

To fund the revolt, the Continental Congress famously relied on printing money, charity, loans, and clumsy financial chicanery. We won anyway. Honest as well as self-serving monied men financed the war that made some rich and bankrupted others. A feeble nation emerged to no objection from average Americans, most of them farmers. However, merchants and planters chafed. European customers were cutting off their credit and demanding cash. State governments’ war debts required hard currency. Taxes rose. Farmers found some safe harbor in barter, but taxmen wouldn’t take chickens or corn. Defaulters lost their land. Tempers flared.

To explain the Constitutional Convention, most historians emphasize the weak confederation. However, that body irked only merchants active in foreign and interstate trade—and sorts like James Madison and Adams, who had firm ideas of what constituted government. 

Shachtman contrarily cites Shays’s Rebellion. Historians these days empathize with the Massachusetts farmers who in 1786 rose up demanding tax relief, but that stand horrified most Founding Fathers. Within the year, 55 were meeting in secret to draft a Constitution that they then presented to states on a take-it-or-leave it basis for ratification.

For a century scholars on the left have complained that self-interested plutocrats wrote the Constitution. Shachtman says so too, but sans the sans-culotte agitprop. He maintains that, unlike today’s rentiers, the Constitution’s composers did not pine to avoid paying taxes. They had no social welfare programs to oppose. There was no federal police force; hired operatives defeated Shays. The Founders were intent on pursuing law and order, hard money, reliable credit, a free internal market, and a central government that inspired respect. 

The rich proclaim America the land of opportunity, Shachtman says; the difference today, he adds, is that they don’t believe what they say. To the Founding Fathers, equal opportunity meant cheap land—which truly existed. 

Today “opportunity” means government programs and rules, which the 1 percent scorns. Founding Fortunes acknowledges that deep pockets steer American government but, in the beginning at least, were doing so mostly on the side of the angels. —Mike Oppenheim writes in Lexington, Kentucky.

James Monroe: A Life
By Tim McGrath
Dutton, 2020; $36

Compared to the other six occupants of the American presidency during that office’s first half century, James Monroe seems uninteresting. His antecedents were war heroes, writers and signers of the Declaration, boldface figures who wrote and implemented the Constitution, creators of major political parties, and influential political theorists.

Monroe was different—an obscure Revolutionary War officer and participant not in the Constitutional Convention but his state’s convention on ratification. His early political career and his brief stints as a senator, ambassador, and governor of Virginia signaled transient prominence. And by the time he achieved the presidency the Federalist Party had lost to the Democratic-Republicans and was fading into history, with the Whig/Democrat rivalry yet to emerge. The Monroe Doctrine was a rare departure from his otherwise quotidian record of governance.

McGrath’s extensive and detailed book shows that Monroe’s life is fascinating because of the very factors which seem to count against that possibility. A marginal spot in the Venn diagram of leading rebellious circles and a later presidency assured him of a well-documented life. Remaining on the peripheries of early national leadership kept Monroe closer to ordinary people than a Washington or a Jefferson. The result is a rare window into revolutionary America’s often underdocumented “middle management.”

Monroe’s superficially placid presidency likewise deceives. 

“The era of good feelings” in truth was a time of realignment behind the scrim of single-party politics. Federalists and moderate Democratic-Republicans were beginning an ad hoc cooperation from which would emerge the Whig Party. Democratic-Republican hardliners were coalescing into the future basis of the Democrats.

More importantly, in Monroe’s day the politics of revolutionary America were maturing—some might say “festering”—into those of the antebellum period. Early presidents had governed amid extensive and prolonged debate over the meaning of independence. Did it mean replacing colonial subjugation and a neo-monarchic nobility with a British alliance and an unlabeled de facto aristocracy? Or did independence bespeak egalitarian or libertarian democracy in the mode of revolutionary France? While Monroe was in office this conversation receded, replaced by sectional rivalry and the fight over slavery that led to civil war.

Monroe is not among the exemplars to hold the nation’s highest office, but few presidents’ lives illuminate as much about some of American history’s most decisive events and changes as his does. —James Baresel is a freelance writer in Front Royal, Virginia.

These reviews appeared in the August 2020 issue of American History.