A Very Historically Blind Christmas III: The Epiphany of the Magi

In 1158, amid sieges by the Holy Roman Emperor Frederick Barbarossa, the embalmed corpses of three men were discovered beneath a church in Milan. One appeared to be that of a young man, another a middle-aged man, and the third, an old man, representing, as it were, the different stages of manhood. Because of their ages and how the idea corresponded with certain legends, these preserved remains were presumed to be the bodies of the Three Wise Men of the Christmas Nativity story and were thereafter hidden in a moat to prevent Frederick I from taking them, but take them he did, and gifted the relics to the Archbishop of Cologne, where they were purported to perform miracles and became the chief relics of the three most revered saints in Western Christianity, housed in the grand Shrine of the Three Kings. According to the 14th-century History of the Three Kings, the Three Wise Men of the Nativity story, also called the Three Kings and the Magi, agreed to be buried together at a certain hill on the border of India where their ways parted on their journey home after presenting their gifts to the Christ child, a place they called the Hill of Victory. How their remains ended up at Milan is another interesting tale, this one involving Flavia Julia Helena, later Saint Helena, the beautiful daughter of the fabled King Cole, or Coel the Old, in Roman Britain. Helena married Constantius and gave him a son, Constantine, who in 312 CE converted her to Christianity. In 325, she was said to have gone on pilgrimage to the Holy Land, where she discovered numerous important relics, including the hay from Christ’s manger, the nails used in his crucifixion, and even the True Cross itself. It was said that, after her pilgrimage to the Holy Land, she traveled to India, discovered the Hill of Victory, and brought the remains of the Three Wise Men back to Constantinople, where they remained until a bishop transported them to Milan sometime during a mid–4th-century period of Christian persecution in Constantinople. But there is much to doubt about this story, which was written centuries after the relics’ discovery in Milan. For example, it attributes their discovery to a much mythologized figure in St. Helena. First, her origin is suspect, with most scholars maintaining that she came from Asia Minor rather than from Britain, and that the figure of Old King Cole identified as her father may be entirely fictitious. Second, the idea that she discovered all the relics it is claimed she found in the Holy Land is hard enough to believe without her also mounting an expedition to India and finding a long-lost tomb like some ancient Indiana Jones. But also, the ages of the relics don’t make logical sense. They do indeed appear to be the remains of men aged around 15, 30, and 60 years, as modern science has confirmed by examination of skull sutures, but this would not make sense unless these Three Wise Men had died almost immediately after presenting their gifts, and all at the same time. The different sources comprising the legendarium that tells us their names—Melchior, Balthasar, and Caspar—do not agree on who came from which country: was Melchior or Balthasar a king of Arabia who presented a gift of gold? Was Caspar king of the Hindus or king of Tarsus? Was Balthasar actually king of Ethiopia and thus dark-skinned as he is often portrayed? Inconsistencies abound, but the legendarium is clear that all three lived past 100 years old, making the relics at Cologne problematic. But there are far more problems than these associated with this major element of the biblical Christmas story.

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Before continuing to read, may I suggest you read my posts “Zoroaster, the First Magus” and “Gnostic Genesis” before listening to this episode. The former is perhaps the most important, as I discuss the historical magi, their beliefs and what was commonly believed about them, which provides essential background for much of this Christmas Special. The latter, while less essential, provides some useful background on what apocryphal writings are, which will come up along the way on our journey of the Magi. But to begin, rather than delving into the apocrypha from which much of the legend of the Three Kings derives, we must look to canon, and the only canonical scriptures that mention the visit of the Wise Men is the Gospel of Matthew, Chapter 2: “Now when Jesus was born in Bethlehem of Judaea in the days of Herod the king, behold, there came wise men from the east to Jerusalem, / Saying, Where is he that is born King of the Jews? for we have seen his star in the east, and are come to worship him.” Here in two verses, out of a passage of 12 verses only, we have the origin of a vast legendarium. Strange, then, that the other gospel featuring the Nativity, that of Luke, makes no mention of these visitors from the East. Moreover, the inclusion of the Wise Men in the actual nativity scene appears not to be supported by scriptures. I talked a great deal in my first Christmas special about confusion over the actual time of Christ’s birth, owing to Luke’s description of shepherds watching their flocks by night, and here we have a similar confusion. When Matthew’s wise men visit Herod, the king asks them “what time the star appeared” and after the wise men depart, he orders the Massacre of the Innocents, demanding the slaughter of all children “two years old and under,” which seems to indicate that the Wise Men first saw the star two years earlier. Yet the star that had signaled the birth of the King of the Jews appears to still remain overhead—another odd detail, for if this magnificent celestial sign had glared in the heavens above for so long, why was Herod so curiously unaware of it?—and it led the Three Kings not to a barn or a cave, as some versions have it, but to a “house” where they presented their gifts to a “young child” rather than an infant. So it seems some artistic license was taken to include the Wise Men at the actual nativity, and it seems further license has been taken all along the way as their legend grew. For example, how do we know they were kings, or that there were only three of them? This appears to have grown out of the mention of three gifts: gold, frankincense, and myrrh, and the fact that these were treasures befit for a king, which only other kings could afford to give. Then there is the connection to a prophecy in Isaiah that predicts “Gentiles shall come to thy light, and kings to the brightness of thy rising” and that “they shall bring gold and incense.” But how much of this was speculation, how much folklore, how much a purposeful attempt to fulfill prophecy and further some other religious or political agenda?

A detail of the Three Wise Kings from the Atlas Catalan, 1375. Public Domain.

Certainly the visit of these Wise Men has become a touchstone in Western culture, its mythic standing resulting in its appearance in all kinds of art. Numerous masters have paintings that depict the adoration of the Magi, including Botticelli, Bruegel, and Hieronymus Bosch. They have been the subject of much poetry as well, with both William Butler Yeats and T.S. Eliot having penned memorable verses about them. And the Christmas carol, We Three Kings of Orient Are is not the only song to immortalize their legend. But their legendarium really begins in apocryphal texts, such as the protoevangelion, or infancy gospels, from the 2nd century CE. These dubious texts, which have been called “mythological trash” by some scholars, offer more details on the birth and early years of Christ. The gospel of pseudo-Matthew doesn’t have them adoring the Christ Child at birth, replacing the Wise Men with an ox and an ass that worship him instead, and this account seems to indicate even more clearly than the canonical Gospel of Matthew that the Magi had seen the star rising in the east two years before making their trip and thus found Jesus as a small child in a house. However, the Infancy Gospel of James places the Wise Men more specifically at the scene of the Nativity, describing how the Wise Men were led by the star to a cave, rather than a barn. An Armenian Infancy Gospel, some centuries later during the late 6th century CE would number them three, give them their names, and make of them kings from specific places. After that, much of their mythology first appeared in medieval romances, which themselves tied the Wise Men to already dubious apocryphal legends, such as the detail that they were baptized in India by Thomas the Apostle during his travels on the Indian subcontinent, even though the only work to describe these travels, the apocryphal Acts of Thomas, makes no mention of them. Further, it was alleged that one of the Three Kings was a forefather of Prester John, a legendary Christian king in India that most scholars believe was a fabricated character of medieval fantasy. And perhaps one final legend shall suffice to demonstrate how entangled the story of the Three Wise Men is with myth and folklore: that of La Befana, the Christmas Witch. In Italian folklore, Befana was an old woman whom the Wise Men passed by on their journey. She asked the travelers where they were headed, and the Wise Men told her about the star they followed and the newborn king to whom it would lead them, and they invited her to join them. However, La Befana was far too busy sweeping and declined to accompany the Wise Men. Later, when she realized that she had lost an opportunity to worship the redeemer that the world had been waiting for, her bitter regret kept her alive to wander around Italy, rewarding the good children by leaving gifts and candy in the socks they hung to dry by their hearths, and leaving only garlic, onions, and coal in the socks of children who had been less than well-behaved. Clearly this legend is all twisted up with other Christmas folklore that I have discussed previously, but La Befana visits children after Christmas, during Epiphany, the Christian holiday celebrating the Three Wise Men and the revelation of Christ as the incarnation of God. Indeed, the witch’s name, La Befana, is even derived from the word Epiphany.

So enmeshed in myth and legend is the story of the Wise Men that in order to find some solid ground from which to start an investigation into their identities, many have looked not to them but to the object their fascination, the Star of Bethlehem, which as a celestial event at least seems approachable through science. Because of its description as an unusual sight which remained for so long, at least throughout the entire months-long journey of the Wise Men, if not for the implied 2 years, rather than a star per se, many interpret it to have been an astronomical event. A fireball or meteor would seem to fit the bill, but as that would disappear within moments, we must look for other phenomena. A supernova has been suggested as another likely candidate, as supernovas can be visible for years and in early records were mistaken for stars, even called a “guest star,” but the earliest record of a supernova was recorded by the Chinese in 185 CE. It seems unlikely that only the Gospel of Matthew, written some 75 to 100 years after the events described, would provide the only record in all cultures of such a bright and easily visible natural event. And this fact casts doubt on the entire notion that this astronomical event occurred for two years. As for events that might have lasted for months, a comet could provide an explanation. However, unlike supernovas, comets were more commonly observed in that era, and were typically seen as the finger of a god, a portent of calamity rather than as a sign of a coming king among a certain people or in a certain place. Then we have the description in Matthew, after the Wise Men meet with Herod, that the star “went before them, till it came and stood over where the young child was.” This certainly does not behave as one would expect a comet to behave, and so it makes sense that many Christians view the Star of Bethlehem more as a miracle than an astronomical event—something more like the pillar of fire illuminating the Israelites’ night journey out of Egypt in Exodus. To a modern reader, it may sound more like a UFO, and interestingly, there are many parallels between depictions of UFOs today and angels in the past, both appearing as lights in the sky.

The Adoration of the Magi by Bartholomäus Zeitblom, c. 1460. Public Domain.

Interestingly, at least one apocryphal text, the Infancy Gospel of James, seems to confirm the idea that the star was actually an angel, for after their visit with the Christ Child, it says they were “warned by the angel not to go into Judea,” according to the “Scholars Version” translation using the definite article “the angel,” when the Wise Men had not earlier been shown to be in contact with an angel but rather being led by the star, giving the impression that the star had been an angel all along. However, The Infancy Gospel of James also employs different wording, making it seem like the star did not move before them and stand over the place where Christ was: “Then, the star which they had seen in the east led them until they came to the cave and stood over the head of the child.” Here we see that it was the Wise men themselves who stood over the child’s head… and one cannot help but wonder if that is what the Canonical Gospel meant to say, a slight distinction, a confusion of subject and verb, lost in awkward phrasing and translation, that makes an important difference. But then again, as mentioned, the Infancy Gospels are not the most reliable of sources. Among the novel embroideries of the Infancy Gospel of James, we see Mary being fed by angels as a child, and rather than delivering the Christ Child by any normal means, there is a flash of light and Jesus simply appears at her breast. Then there is the strange cameo of Salome, granddaughter of Herod, who appears in the Nativity scene here despite her being described in Mark as being youthful when Jesus was an adult. Intrigued by the story of a virgin birth, Salome wants to see for herself, but when she inserts her finger into Mary to determine if her hymen is intact, her hand is “consumed in fire.” Only holding the Christ Child restores her hand to her. All this to demonstrate that the Infancy Gospel of James may indeed be the “mythological trash” that scholars have said it is, making it unreliable as evidence for what the Star of Bethlehem was or how it led the Wise Men to the Christ Child. But, then again, is it any less unbelievable than other wonder-filled books of the Bible that have been established as canon?

For a more rational interpretation of the Star of Bethlehem, we must consider why these Wise Men are sometimes called the Magi. The original Greek word used in the Gospel of Matthew that has been translated as “wise men” was mágoi (μάγοι), a seemingly direct identification of these men from the east as followers of the ancient Persian religion of Zoroastrianism. It is curious that the term magi would be translated as “wise men” since the magi were largely seen as practitioners of evil magic. Even elsewhere in the Bible, the term is applied, in its singular form, to the most wicked sorcerer of all, the originator of all heresies, Simon Magus. However, it may be that the word was simply being used by Matthew to indicate that the men were astrologers, for Zoroastrian magi were widely credited as the inventors of astrology. And here we find an interesting explanation for the Christmas Star. As astrologers search for portents in the stars and alignments of planets, perhaps this is what led the Wise Men to Bethlehem. In fact, a few noteworthy planetary alignments have been suggested by astronomers as possible candidates. Keep in mind that the exact year of Christ’s birth has never been determined with any certainty, and he likely was not born at the end of the year 1 B.C. as the former calendrical reckoning of “Before Christ” would imply (evidence of which, having to do with the known dates of King Herod’s life and reign, I discussed in my first Christmas special). So if we are not tied to that date, we can see a triple conjunction of Jupiter and Saturn in 7 BCE that may have inspired astrologers to make a journey to the land of the Hebrews. Three times that year, Jupiter, a planet representing royalty, passed before Saturn, a planet seen as a protector of eastern Mediterranean peoples, and this took place within the astrological sign of Pisces the Fishes, which to many eastern astrologers meant a portent for the Hebrew people. If that didn’t fit the bill, another possibility exists.

The Journey of the Three Kings (1825) by Leopold Kupelwieser. Public Domain.

In 3 BCE, a number of curious planetary alignments occurred. In August that year, while Venus and Jupiter were in conjunction, Mercury and the Sun and Moon were in the sign of Leo the Lion, a sign associated with the Jewish tribe of Judah. Then the next month, Mercury aligned with Venus and the Sun entered the sign of Virgo the Maiden. Considering that a prophecy foretold of a virgin birth in the House of Judah resulting in a savior, these planetary movements may have been interpreted as confirming the prophecy’s imminent fulfillment. After that, Jupiter aligned with the brightest star in Leo, Regulus, and would pass it again two more times in the next year, 2 BCE. Then, in June of that year, exactly 2 years from the summer of 1 CE, when, it should be remembered, it was more likely for shepherds to be watching their flocks by night as described in one version of the Nativity, a spectacular “double planet” conjunction of Jupiter and Venus occurred that would have been unlike anything astrologers of the day had ever seen. Indeed, we did not see a similar occurrence for another 2000 years, in 2016. A similar “double planet” conjunction of Jupiter and Saturn on the 21st of December this year is likewise being hailed as a “Christmas Star.” Before we say case closed and declare that Matthew was certainly referring to these conjunctions, though, it must be pointed out how strange it is that, considering the astronomical knowledge of the day, Matthew used the word for star rather than referring to the event as a conjunction of planets, and Herod and his court, who would have been familiar with astrology, had no idea about this conjunction. Moreover, a conjunction of planets would not explain how the star appeared to move as it led the Wise Men, or how it stopped over the place where the Christ Child was. And perhaps most strange is that Matthew would indicate by this passage the efficacy of astrology, a forbidden practice and belief considered to be false and against God.

Now we get to the heart of the matter. Who was this Matthew who wrote the only canonical Gospel that mentions these Magi from the east who followed a star to Jesus, and what can the historical and geographical context in which it was written tell us about why this singular passage appears? Little is known about the author of this gospel, but it can be discerned that he was a speaker of Greek, and a Jew who had converted to Christianity. He is believed to have written the document in Antioch, sometime between 80 and 90 CE, almost a hundred years after the events he is recording. Antioch was connected via some nearby major commercial roads to cities like Edessa and Hierapolis, which had inherited much from ancient Persian and thereafter Parthian cultures, including thriving Zoroastrian traditions. Indeed, as a center for education, Antioch received eager-to-learn young people from these other cities, who brought with them Zoroastrian beliefs. As such, Antioch was a multi-cultural milieu where syncretistic beliefs began to sprout up and where astrology was popular. As such, it is perhaps no surprise that Matthew incorporated astrologer Magi into his version of the Nativity. Indeed, it may have represented an effort at syncretism, an attempt to reconcile Christianity with the practice of astrology, for if astrology had successfully predicted the birth of the Messiah, it couldn’t be all bad, right? But more than this, the very notion that Magi, or priests of the Zoroastrian faith, would recognize Jesus as the foretold savior is a syncretism of Christianity and Zoroastrianism, for as I discussed in my previous post on the topic, Zoroastrians too believed in the coming of a savior figure who would be born to a virgin mother.

The Adoration of the Three Kings, anonymous. Public Domain.

Another possibility may be that, rather than trying to co-opt Zoroastrianism, Matthew may have been inventing details in order to make it seem as though Christ’s birth represented the fulfillment of known prophecy. First, there is the prophecy of the wicked Gentile diviner Balaam in Numbers Chapter 24, which states that “there shall come a Star our of Jacob, and a Sceptre shall rise out of Israel.” Interestingly, some early Christian writers viewed Balaam as an astrologer and even sometimes suggested he was Zoroaster himself. Then there is the prophecy from the Book of Isaiah, Chapter 60, which indicates that “Gentiles shall come to thy light, and kings to the brightness of thy rising” and mentions specifically their arrival on camels and gifts of gold and incense. Some writers, including Catholic scholar Dwight Longeneker, who has written a whole book about the topic, use this verse of prophecy to try and narrow down who the Magi were. Based on these verses mentioning that Gentiles would come from such places as Midian, Ephah, and Sheba, he argues that they were not Persian Zoroastrians but rather astrologers from the neighboring kingdoms of Nabatea and Sheba, and that the word magi was a common misnomer for any astrologers. To support his claim, he argues that these Kingdoms were linked to the kingdom of Herod by a trade route, on which they traveled to sell incense and myrrh, made from resinous plants native to their lands. This is all rather convincing, but only if you believe that what Matthew wrote had to be true, when in fact, he was likely aware of these prophecies and working them into his account. His inclusion of the brief story of the Wise men recalls both Balaam the Gentile astrologer’s metaphor of a King in Israel as a rising star AND the notion of Gentiles coming from afar to offer gifts specifically of gold and incense. So what is more likely, that this one version of the Nativity, written almost a hundred years later, with details not corroborated by contemporary sources, proves these prophecies accurate, or simply that these prophecies served as Matthew’s source material?

As we consider what may have driven Matthew to invent the story of the Wise Men and the Star of Bethlehem, yet further agendas present themselves. In emphasizing that wise Gentiles recognized Christ as the Messiah, perhaps he was not trying to validate astrology so much as he was trying to present a negative view of the Jews, who were not as accepting of Christ’s divinity. Certainly this has been one reading of the story. Or, there is the idea that, rather than validating astrology or co-opting Zoroastrianism, the story of the Star of Bethlehem was intended as a repudiation of those beliefs. After all, early Christian literature sometimes described the Star as being brighter than anything else in the sky, causing all other heavenly bodies to be dim. By this reading, the Star represented Christianity rising victorious over Zoroastrianism and astrology, a symbol of God’s destruction of magic. Lastly, it is also possible that there was a more political motivation behind the story. The arrival of Persian magi who sought to give respect not to Herod but rather to a new king appears to represent the Persian or later the Parthian rebellion against Roman rule, which the Jews had long associated with liberation. The Persian king Cyrus had previously liberated the Jews from Babylonian captivity, so during the Roman occupation of Judea, many looked again to the enemies of their enemies, the inheritors of the Persian Empire, the Parthians, for a second liberation. By this reading, Matthew’s Gospel is revolutionary literature. What all of these interpretations have in common is that they view the passage concerning the Magi not as fact but as metaphor, which of course would make all the subsequent mythologizing of their characters nothing but fantasy. It seems this figurative interpretation of scripture was actually rather common among early Christians. It is very odd, then, that today, after the Scientific Revolution and Age of Enlightenment, so many still insist on an absolute, literal reading of the Bible.  

The Adoration of the Magi by Matthias Stom. Public Domain.

Further Reading

Bakich, Michael E. “What Was the Star of Bethlehem?” Astronomy, vol. 38, no. 1, Jan. 2010, pp. 34–39. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=f6h&AN=45390790&site=ehost-live.

Estakhr, Mehdi. "The Journey of the Magi: Its Religious and Political Context." World History Bulletin, vol. 32, no. 1, Spring 2016, p. 24+. Gale Academic OneFile, link.gale.com/apps/doc/A603404338/GPS?u=modestojc_main&sid=GPS&xid=59f778a1.

Grigson, Geoffrey. “The Three Kings of Cologne.” History Today, vol. 41, no. 12, Dec. 1991, pp. 28–34. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=f6h&AN=9112233542&site=ehost-live.

Hegedus, Tim. “The Magi and the Star in the Gospel of Matthew and Early Christian Tradition.” Laval théologique et philosophique, vol. 59, no. 1, Feb. 2003, pp. 81-95.  Érudit, www.erudit.org/en/journals/ltp/2003-v59-n1-ltp477/000790ar/.

Longenecker, Dwight. “Who Were the THREE WISE MEN?” Catholic Digest, vol. 82, no. 2, Dec. 2017, pp. 52–55. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=f6h&AN=127134763&site=ehost-live.

---. “‘We Three Kings’. (Cover Story).” Catholic Answer, vol. 28, no. 5, Nov. 2014, pp. 15–17. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=98513445&site=ehost-live.

The Eleventh Hour: Presidential Pardon Power

Every year, just before Thanksgiving, the President of the United States keeps the time-honored tradition of the National Thanksgiving Turkey Presentation. Since the late 19th century, foreign dignitaries seeking favor, various organizations evincing patriotism, and ranchers promoting their industries have sent gifts of livestock to the U.S. Chief Executive. By the time of the Coolidge administration in the 1920s, the flood of gifted turkeys became too much, prompting the President to discourage the sending of birds to the White House. Equally time-honored, it is said, is the practice of the Chief Executive of exercising his federal pardoning power to grant clemency to birds presented to him every Thanksgiving. But how time-honored is that charming tradition, really? One story recorded in the press suggests it goes back to Lincoln, who spared a turkey’s life when his son Tad pleaded for mercy on its behalf. But this was no “Presidential pardon.” Another claim is that President Truman started the tradition, as his administration had promoted “Poultryless Thursdays” in an effort to conserve food in 1947, a year when Thanksgiving, Christmas, and New Year’s all fell on a Thursday. In fact, that year marked the first official presentation of birds to the White House, but in protest, as the poultry industry inundated the President with crates of live “Hens for Harry.” But Truman relented in his food conservation efforts before Thanksgiving, so this was not the start of the tradition. Some say JFK issued the first turkey pardon, but he only said, rather vaguely, “Let’s keep him going” in regard to the turkey presented to him. It was Washington Post reporting on his statements that used the words “reprieve” and “pardon.”  In ensuing years, it became the norm for the turkey presented to the White House to be retired to a farm rather than face the butcher’s block, but it appears the first time a President actually joked about issuing a pardon to a turkey was very recently, in the 1980s, when in the presence of animal rights protesters George H. W. Bush joked that the turkey presented to him was “granted a Presidential pardon as of right now.” Most recently, President Trump kept up this new tradition, although he sometimes politicized the occasion. For example, in 2019, amid an impeachment inquiry, he suggested the Turkeys would be subpoenaed by House Democrats, and he likened the turkeys to the media, saying both were “closely related to vultures.” More ironic today, though, were his jokes during the ceremony in 2018, when he quipped about how the turkey presented to him, named Peas, had been chosen over its alternate, named Carrots: saying it had been a fair election, but that the Carrots had refused to concede, and demanded a recount that in the end changed nothing. Who’s the turkey now?

Currently, though, if you were to look up “Trump” and “pardon” on the Internet, any search engine will give you lots of other results besides his most recent turkey ceremony. The power of the Presidential pardon is currently under scrutiny. One reason is because, as a lame duck, Trump is likely to wield his power to grant clemency more liberally, issuing what are known as “eleventh hour pardons,” as is typical of Presidents whose clout with the legislature is greatly reduced during the last months of their administrations. Secondly, and somewhat more uniquely, this is because Trump himself is believed by many to be looking down the barrel of prosecution after he leaves office. The list of possible federal criminal charges that he might be indicted on after leaving office include violations of the Foreign Emoluments Clause in his acceptance of money from foreign governments through his golf courses and hotels, obstruction of justice and perhaps witness tampering in his efforts to disrupt the Mueller investigation into Russian election interference, and bribery of the Ukrainian president in his attempts to get them to launch a groundless investigation into Biden’s son. In part, the likelihood of his prosecution explains his efforts to overturn the election and remain in office by any means, for retaining the office of President grants him some measure of immunity, although the extent of such immunity is debated. Since a tweet in 2018, Trump has publicly claimed his “absolute right” to pardon himself, a right that is also disputed by legal scholars but that many still suspect he may attempt to exercise before vacating the White House. So this holiday season, let’s examine the constitutional power of presidents to pardon those convicted of federal crimes or commute their sentences, considering how it has been used and abused in the past in order to determine whether it should be restricted or reformed in the future.

Pres. Bush issuing the first Presidential pardon of a turkey. Public Domain image.

As we consider the possibilities for Trump’s eleventh hour use of the pardon power during the last months of his presidency, we should look at how he has used it prior to his lame duck period. Typically, presidents save their most controversial pardons for their last days in office, but Trump has not previously shrunk from issuing controversial pardons. Among the list of pardons he has issued are a variety of right-wing ideologues who have praised him in the media and donated to his PACs, many of them guilty of bribery and campaign finance violations, like Rod Blagoojovich and Dinesh D’Souza, and some guilty of far worse violations, like Sheriff Joe Arpaio, who refused to stop racially profiling and mistreating immigrants despite a court order. But perhaps the most blatantly corrupt use of this presidential power was when he commuted the sentence of Roger Stone, his longtime political advisor, who had been convicted of witness tampering, obstruction, and lying to Congress with regard to Mueller’s Russia investigation. In what appeared to be a reward for Stone’s refusal to cooperate with prosecutors, Trump is said to have had his Justice Department pressure prosecuting attorneys to seek a reduced sentence, and in the end commuted the sentence he was given. Even as I write this episode, Trump has given a further indication of the eleventh hour pardons that may come, as he has pardoned Michael Flynn, his former national security advisor who pleaded guilty in the Russia investigation to lying about his meetings with a Russian ambassador while working with the Trump campaign. Earlier this year, Trump’s Justice Department attempted and failed to get the case against Flynn dismissed, so now lame duck Trump has let Flynn simply walk. Rather than a power to unfairly benefit cronies, the framers of the constitution envisioned this pardon power of the chief executive as a way to grant mercy, which is a common and usually applauded application of the power. Trump also has used the power to grant reprieves and clemency in a merciful spirit, although he has thereafter been known to prop up the recipients of such pardons in Super Bowl ads to burnish his image. However, even the framers must have foreseen the possibility of such a king-like power being abused, for they limited it in cases of impeachment. But, as with many unenforced norms, Trump has shown us that an unscrupulous President can break with tradition in such a way as to flout the rules. In fact, some in the media have suggested that his disregard for the traditions of the office warrant the passage of a constitutional amendment to do such things as require the release of tax returns, strengthen the Emoluments Clause, make the Attorney General answerable to Congress as well as the President, and to restrict the pardon power of a lame duck President. But does the history of presidential use of this power warrant amendment of the Constitution?

Some questionable uses of the President’s pardon power can be observed by William Howard Taft. First, his pardon of U.S. attorney John Hicklin Hall may raise some eyebrows. Hall had led investigations into fraud among land companies in Oregon, but it was later found that he himself had become complicit in the fraud by looking the other way and not prosecuting certain offenders. Worse than this, he used evidence of who had been involved in this land fraud to influence political races, extorting rival politicians and forcing them out of elections by threatening to leak information about their crimes to the public. After having been removed from office by Teddy Roosevelt and convicted of these crimes, President Taft pardoned him without any clear justification. But it must be remembered that there may have been other considerations, such as time served, good behavior, and expressions of contrition. So perhaps we should not judge Taft unfairly. Another example from among Taft’s pardons actually illustrates how the corruption of others might take advantage of the President’s power to pardon. I refer to Taft’s pardoning of the so-called “Ice King,” Charles W. Morse, a legendarily corrupt businessman who had leveraged political connections to gain a stranglehold on the ice business in New York, a monopoly that allowed him to purchase numerous shipping companies and become active in banking. It was as a banker that he ran afoul of the law, manipulating copper prices and setting off a banker’s panic in 1907. For his violation of federal banking laws, he was sentenced to 15 years imprisonment, and immediately commenced petitioning President Taft for a pardon, paying journalists, lobbyists, and attorneys to pressure Taft to intercede. To Taft’s credit, he several times denied Morse’s petitions for a presidential pardon, only relenting and granting him clemency when Morse became ill with what several physicians declared to be a terminal case of Bright’s disease. However, after the pardon was issued, it turned out Morse had been faking the illness by drinking a cocktail of soap and other chemicals. Chagrined, Taft bemoaned that that he had been duped, but there was little he could do, for once awarded, it seemed the pardon was Morse’s to either use or decline. This treatment of pardons as gifts that afterward belong to the recipient had been established far back, during the Andrew Jackson administration, when Jackson had granted a pardon to George Wilson, a man sentenced to death for robbing a mail carrier. When Wilson declined the pardon, the Supreme Court decided that they must carry out the sentence despite the President’s wish to intervene, for once the pardon had been given, it no longer belonged to the President. Thus by this precedent, it seemed Taft could not take back the Ice King’s pardon once he’d signed it.

Taft at his desk. Public Domain image.

For an example of rather blatant corruption leading to undeserved pardons, we would look to the 1920s and the administration of Warren G. Harding, who it was well known owed much to a group of corrupt men known as the Ohio Gang. Once in office, despite protests from the Republican Party who had nominated him, he made one of these gangsters, Harry Daugherty, his Attorney General, and gave several others influential staff positions as well. In this office, Daugherty set about enriching himself and other Ohio Gang members. Among the moneymaking schemes that he concocted were selling federal jobs to the highest bidders and taking money from booze runners to look the other way as they trafficked in alcohol during Prohibition. In addition to these corrupt practices, it seems he also sold Presidential pardons, taking money and then fast-tracking recommendations for Harding to sign off on. In one case, when Harding learned that Daugherty had lied to him and gotten him to sign off on a pardon for a man who had not yet even served any time, Harding protested. One Ohio Gang underling of Daugherty’s, Jess Smith, ended up taking the fall for selling pardons this way, probably because Daugherty threw him under the bus. Harding insisted that Smith be removed from his position and sent back to Ohio, but before this could happen, Smith was found dead of apparent suicide in a house that he shared with Attorney General Daugherty. Smith’s wife, who had spoken with him the night before and found him the next day with his head in a waste-paper basket, a pistol in his hand and bullet holes in his temples, afterward suggested, based on their talk, that Smith had killed himself out of loyalty, to protect Daugherty. If that is indeed what happened, then it did not work. Daugherty and other cronies were thereafter embroiled in controversy and investigation. After President Harding’s death, a Senate investigation helped force Daugherty to resign, after which he was tried for his influence peddling more than once. However, both trials concluded with hung juries, and Daugherty never ended up convicted for his perversion of the president’s power to pardon. If he had been convicted, though, one assumes he would have just pulled some strings to get himself pardoned. 

While the preceding was an example of how a corrupt Attorney General could misuse the presidential pardon power, all too often what we have seen is the President himself using his power to pardon in secret, sometimes even circumventing the Department of Justice and its petition process altogether. President Harry Truman was widely criticized for this in the early 1950s, when he made several eleventh hour pardons that to many reeked of cronyism. Just before leaving office, Truman commuted two sentences and pardoned 26 people, and several people with political connections were among those to receive his clemency, including erstwhile governors, congressmen, and other officials. One was a former counsel to the Democratic National Committee who’d been convicted of engaging in election fraud. Not only were Truman’s choices of who to pardon suspect, but the fact that his choices had not been recommended to him by the attorney in charge of pardon petitions in his Justice Department made allegations of cronyism even more credible. As a result of the furor over Truman’s eleventh hour pardons, his successor, Eisenhower, felt obliged to promise more transparency in the pardon process from then on. This promise, however, would not be kept by future administrations. 

Truman at his desk. Public Domain image.

Beginning in the 1980s, abuse of the pardon power seemed to become rather more blatant. Ronald Reagan, for example, granted an eleventh hour pardon to a major Republican donor, George Steinbrenner, the notorious former owner of the New York Yankees baseball team. Steinbrenner had been tried for illegal contributions to Nixon’s election campaign and for obstructing justice by coercing employees into lying before a grand jury. Steinbrenner’s significant contributions make his pardon questionable, but more recently, declassified FBI documents suggest that Steinbrenner may have won his pardon by providing assistance to the FBI in certain undisclosed investigations. Far less debatable is the misuse of the pardon by Reagan’s VP and successor, George H. W. Bush, who at the end of his presidency was embroiled in investigations into his involvement in the Iran-Contra scandal. For any who don’t recall this controversy, it involved Reagan administration officials, likely led by Bush himself, breaking an arms embargo to sell weapons to the Islamic Republic of Iran in order to raise money to fund anti-Communist rebels in Nicaragua. Before leaving office, Bush pardoned several administration officials for their involvement in this affair, and it’s said that he even considered pardoning himself. And can you guess who advised President Bush to make these pardons? None other than Trump’s Attorney General, Bill Barr. Some have suggested that Bush’s pardoning of these officials amounted to a self-pardon, since it destabilized the investigation in such a way that he would never be indicted himself, but in fact, he stopped short of explicitly pardoning himself. One wonders, though, whether Barr, the poster boy for unchecked executive power, was pushing for that self-pardon.

Lest one be led to believe Republicans have a monopoly on misuse of the pardon in modern times, Bill Clinton is here in recent memory to show us how Democrats too have wielded the pardon to aid their cronies, and even their own family members. That’s right. Before leaving office, Bill Clinton pardoned his own brother, Roger, who had been convicted of possessing and trafficking cocaine in the 80s. This was not the most controversial of his eleventh hour pardons, though. Far more scandalous was his pardon of Marc Rich and his partner Pincus Green, who had been indicted on more than 50 counts of breaking a trade embargo to deal in oil with Iran and evading income tax in the amount of almost $50 million dollars, as well as other charges like racketeering and wire fraud. Rich and Green had fled the country rather than face justice, and they lived a life of luxury in exile in Switzerland. Eventually, though, Rich put out feelers to the Clinton administration about the possibility of a pardon. In the end, Clinton obliged, pardoning Rich and Green in the eleventh hour of his presidency, an act that afterward occasioned Senate hearings over whether the pardons were “appropriate,” specifically because of the sense that Clinton had granted the pardons as a quid pro quo after accepting gifts from the Riches, including generous donations to his legal defense fund and to his Presidential Library, as well as some quite pricy tables and chairs. The hearing, which raised the idea of a constitutional amendment, in the end amounted to little more than grandstanding, as all present appeared to concur with the professor of constitutional law they called on to give expert testimony, who declared that “[t]he Founding Fathers placed this absolute power, albeit undemocratic power, in the Constitution in recognition of the fact that governmental adherence to the letter of the law does not, in all instances, result in justice.”

Bill Clinton issuing a turkey pardon. Public Domain image.

This intended use of the Presidential pardon as a hedge against injustice and a mechanism by which to extend grace and mercy to those who most need it has a far longer history with far more examples than we can find of the power’s misuse. Going back to George Washington, we see the pardon power being used to heal divisions in the country after significant rifts. Over the protests of Alexander Hamilton, Washington chose to pardon two men involved in the insurrection of distillers in Pennsylvania over the taxation of whiskey, a fracas known as the Whiskey Rebellion. These men had been convicted of treason and sentenced to hang, but according to Washington, “The misled have abandoned their errors.” Washington expressed his reason for the clemency thus: “… it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.” Likewise, when Thomas Jefferson took office in the aftermath of the contentious election of 1800, as he sought to repeal the Judiciary Act of 1801 he also sought to repeal the Alien and Sedition Acts, which restricted the freedoms of foreigners and native residents alike, resulting in the imprisonment of citizens who spoke against the Federalist regime and President Adams, despite First Amendment speech protections. So in addition to dismantling these laws, Jefferson pardoned 10 people who were serving time for exercising their rights of free speech. And finally, there is the most dramatic example of pardons being granted in an effort to heal a divided nation: The Christmas Amnesty of 1868. See, I told you this was a holiday-themed episode. After President Abraham Lincoln’s assassination, Vice President Andrew Johnson assumed the presidency. More than once he used the presidential pardon power in an effort to heal the nation, including granting clemency to some of the conspirators in Lincoln’s assassination. On Christmas day, 1868, nearing the end of his tenure, he completed the gesture by pardoning every last Confederate. Granting “to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason.” That Christmas, Johnson wielded the power of the presidential pardon as it was meant to be wielded, and did his best fulfill the promise Lincoln made in his second inaugural address, “With malice toward none, with charity for all…let us strive on to finish the work we are in, to bind up the nation’s wounds….”

The Christmas Amnesty of 1868 demonstrates not only how the pardon power was intended to be used by the Framers of the Constitution, but also the extent of the power. It proves that the power can be used to issue mass pardons to entire categories of people, and it shows us that it can be used to pardon preemptively, before individuals have even been charged with a crime. Just as this preemptive effect is likely of great interest to Trump right now, who has yet to be indicted for any of the criminal activities in which he has been implicated, so too was it very important to another President looking down the barrel of criminal charges once he left the White House. That President was, of course, Richard Nixon. Just as Trump clearly believes he can pre-emptively pardon himself, so too Nixon considered self-pardon as a possible course of action. While the power to pardon pre-emptively has been established, however, the power to pardon oneself remains questionable. Constitutional scholars have argued on historical grounds that the Framers only failed to expressly forbid it because such an act is clearly unacceptable by the basic legal doctrine and principle of justice nemo judex in causa sua, a Latin phrase meaning “no one is judge in his own case.” Thus Nixon never attempted such a perversion of the presidential pardon power, and instead left his fate to Vice President Gerald Ford, who a month after Nixon’s resignation and his assumption of the office of President, granted a preemptive pardon to his predecessor on the grounds that, again, the nation needed to heal. In Trump’s case, whether or not he attempts a self-pardon, I think we could see a similar conclusion. If he actually tries to pardon himself, that may need to be decided in the Supreme Court—which of course, seems to favor him these days—but barring that nuclear option, a simple resignation would allow Pence to issue him a pardon. Somehow, though, Trump doesn’t seem the resigning type. Or, upon leaving office, President Elect Joe Biden could see fit to grant him a pardon in the same spirit as Ford’s pardon of Nixon, as an attempt to heal the country’s wounds and prevent a debasement of the office. This would, I think, be foolish, since even in many of the worst cases I’ve outlined, the recipients at least expressed some contrition. In fact, Presidents can make conditional pardons, and I think it would be appropriate for Biden to make any pardon of Trump conditional on some sort of public admission of guilt and remorse… which would, of course, mean Trump would never accept it, as it’s clear his ego would not allow it. Regardless, even if Biden issued him a full pardon, or if a self-pardon managed to work, Presidential pardons are only effective against federal crimes, but Trump also faces numerous criminal charges in civil and state courts. These include sexual harassment, defamation, and rape charges from women he has allegedly abused, and illegal campaign payments, money laundering, tax evasion and bank fraud being investigated by the New York Attorney General. So after all, no matter what, it looks like this turkey may not be getting the pardon he needs. Rather than retiring to run free across the golf courses of Mar-A-Lago, he may end up fleeing the country instead, as he has already suggested during his campaign.

Ford announces his pardon of Nixon. Public Domain image.

*

Since I wrote this, more has come out to indicate the depths of Trump’s misuse of the pardon power. It was reported that the DoJ is investigating an alleged bribery-for-pardons operation within the Trump White House, which sounds very much like the Harry Daugherty scandal I described in this episode. It will be interesting to see what comes of that. And even more recently, it’s been reported that Trump is considering granting pre-emptive pardons for his children, Eric, Don Jr, Ivanka, and son-in-law Jared Kushner, as well as his fixer, Rudy Giuliani. The power of the President to grant preemptive pardons has been clearly established, as has the ability to grant blanket immunity from federal prosecution when Gerald Ford pardoned Nixon for “all offenses against the United States.” If Trump were to pardon his kids, he would certainly have to make some similar blanket pardon, since pardoning them of any particular crimes that they haven’t yet been charged with would seem tantamount to an admission of guilt. And the same goes for any possible self-pardon. But even if he didn’t attempt a self-pardon, this would still be unprecedented, for he would be granting blanket immunity to numerous people, family members, who have never admitted fault or expressed regret as Nixon did. So I think this is going to get a whole lot crazier before the eleventh hour of Trump’s presidency ticks away.

Further Reading

Dibacco, Thomas V. “Once Upon a Crime: The Harding Pardons.” The Orlando Sentinel, 23 Feb. 2001, p. A23. Newspapers.com, www.newspapers.com/image/236040680.

Gaughan, Anthony. “The Christmas Amnesty of 1868.” The Faculty Lounge, 27 Dec. 2018, www.thefacultylounge.org/2018/12/the-christmas-amnesty-of-1868.html.

Gerstein, Josh. “Pardoning in Secret.” The New York Times, 13 Feb. 2001, p. A31. TimesMachine, timesmachine.nytimes.com/timesmachine/2001/02/13/issue.html.

Kalt, Brian C. “Pardon Me?: The Constitutional Case against Presidential Self-Pardons.” The Yale Law Journal, vol. 106, no. 3, Dec. 1996, pp. 779-809. Digital Commons at Michigan State University College of Law, digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1233&context=facpubs.

Williamson, S.T. “Smith, Mystery Man of Daugherty Inquiry.” The New York Times, 30 March 1924, p. 177. TimesMachine, timesmachine.nytimes.com/timesmachine/1924/03/30/issue.html.

Circuit Riders, Midnight Appointments, and Packed Benches: A History of the Supreme Court

One ruler by which to measure the success of a given presidency is by its appointment of judges, as these appointments remain long after a president leaves office, allowing a lasting influence on law and public policy. In fact, according to Jay Sekulow of the American Center for Law and Justice, court appointments are “the lasting legacy of the President, for every conceivable issue.” By this benchmark, if you’ll excuse a pun, and perhaps by no others, Trump’s presidency can be considered a success by his party. For reference, over 4 years, he managed to nominate almost 300 federal judges, and got more than 240 confirmed, including three Supreme Court Justices. By comparison, over 8 years, Obama only got about 350 confirmed, including 2 Supreme Court seats. This means Trump was on track to appoint nearly double the number of judges as Obama had. Now, Trump claimed in his recent “debate” with Biden that this is because Obama negligently left him seats to fill. In point of fact, Obama had been obstructed throughout his presidency by Senate Republicans, even when they did not have control of the Senate. You see, there was a longstanding practice of senatorial courtesy that said a federal court nominee for any given state must get approval from both its Senators, which Republicans consistently refused to give. In 2013, Majority Leader Harry Reid exercised a “nuclear option” to circumvent their obstruction, limiting confirmation debate and requiring only a simple majority to confirm, which resulted in Obama’s judge confirmation rate soaring to 90%. However, Republicans took the Senate in 2014, and new Majority Leader Mitch McConnell took their obstruction to unheard of levels, reducing Obama’s confirmation rate to a dismal 28% over the next two years. This was why so many seats remained to be filled when Trump took office, and McConnell, already leveraging the Democrats’ own nuclear option against them, introduced a few tricks of his own: he extended the practice of requiring only a simple majority even to Supreme Court nominations, which Reid had excluded, AND he declared that they would not observe Senatorial courtesy, meaning essentially they would ignore a blue slip from a Senator objecting to a nominee in his or her state, a completely hypocritical flip flop from when he insisted that Republicans could use blue slips to veto any nominees. This paved the way for Trump to get judges confirmed far more easily than his Democratic predecessor. But I suppose, if we’re looking for who to credit or blame for the Trump administration’s appointment of a quarter of all active federal judges within 4 years, it seems more like McConnell’s legacy than Trump’s.

But here’s the thing. Judges are meant to be non-partisan. Of course, all people have political leanings, but judges are expected not to let their partisanship influence their interpretation of law. Therefore, clearly ideological nominees have always been controversial and even damaging to a President, especially when they are nominations to the Supreme Court of the United States. In 2009, when Obama nominated Sonia Sotomayor, Republicans objected that she was a liberal judicial activist, and 31 of them voted nay on her confirmation, but Dems still managed to get her confirmed with a supermajority of 67 votes, surpassing even the 60 votes needed. Then, in 2010, conscious of the Senate fight that might result from a controversial nominee, Obama nominated the moderate Elena Kagan and was criticized by his own party for it, since she would be replacing John Paul Stevens, who was considered by many the most liberal leaning justice on the bench. But despite this concession of nominating a moderate even while his party held the majority and he could have gotten a liberal-leaning justice confirmed, he faced an uphill battle with Senate Republicans, who seemed determined to object to any nominee, resulting in an even more hard-won confirmation with only 63 yea votes for Kagan. Come March 2016, a full 8 months before the election of a new president and ten months before the end of Obama’s final term, sitting conservative Supreme Court Justice Antonin Scalia passed away unexpectedly of natural causes in his sleep. Trying to avoid another controversy, Obama nominated another moderate, Merrick Garland. This time, McConnell had a firm stranglehold on the Senate, and he made the scandalous decision to simply ignore the nomination and not convene a confirmation hearing at all. He cited history to defend his decision, claiming that no Senate has confirmed a nominee from a President of an opposing party during the last year of their presidency since the 1880s. It’s unclear what example of such a confirmation he’s referring to in the 1880s, but it is clear that he was not telling the truth. In 1988, during the last year of Reagan’s presidency, a Democrat-controlled Senate confirmed Anthony Kennedy 97 to 0. McConnell might object that Dems confirmed Kennedy because the moderate Kennedy was a concession, but so was the moderate Merrick Garland. And here’s the thing, if we want to find an actual historical precedent for the obstruction of McConnell and his Republican Senate, we have to look much further back than the 1880s. You see, no Senate has simply refused to hold a confirmation hearing for this reason since 1853! Back then, when political parties held no resemblance to our party system today, Whig president Millard Fillmore nominated Edward Bradford in August of 1852, an election year, and the Senate, controlled by the opposing party, did nothing. Then, as a lame duck, Fillmore made two more nominations, George Badger and William Micou, and the Senate majority continued to do nothing, waiting it out until the inauguration of the new president, one of their own, so that they could give him the seat to fill. And if one is not troubled by the hypocrisy of McConnell’s justification for his inaction—claiming falsely that such a thing hadn’t been done since the 1880s when in fact what HE was doing hadn’t been done since the 1850s—then certainly one should be appalled at his subsequent flip-flop in 2020, when just days before an election his party’s president was polling to lose—and of course did, unequivocally, lose—he rammed through a conservative nominee to the Supreme Court to fill the seat of the recently passed liberal justice Ruth Bader Ginsburg, against her dying wishes, just a week before election day. Since these events, there has been much talk among progressives of a need to expand the Supreme Court, which liberals may characterize as a balancing of the bench, and conservatives denounce as packing the bench. So it’s time to look to the history of the Supreme Court and its structure to determine what precedent there may be for its expansion and to evaluate what the case may be for doing it beyond partisan one-upsmanship.

George Badger, a Supreme Court nominee denied a confirmation hearing like Merrick Garland way back in 1853. Public Domain, via Wikimedia Commons

In discussing the controversy over McConnell’s underhanded tactics to take a conservative majority of Supreme Court seats and the controversy over the prospect of a Democratic Congress expanding the court, we must first establish a baseline understanding of the formation of the Supreme Court, how its structure has changed throughout American history and why, as well as how those changes were effected. Recently, with some Democrats discussing their openness to judicial reforms like expanding the Supreme Court bench or establishing term limits for its justices, Marco Rubio, a Republican Senator from Florida, has proposed a Constitutional amendment to prevent more than nine seats from being added to the Supreme Court bench, which Rubio says would be “delegitimizing" and suggests would represent a “further destabilization of essential institutions,” though of course he doesn’t indicate how this would delegitimate or destabilize the highest court in the land. In fact, he himself admits that “[t]here is nothing magical about the number nine. It is not inherently right just because the number of seats on the Supreme Court remains unchanged since 1869.” So it seems apparent that by delegitimize and destabilize he only means that he wants to prevent the opposing party from offsetting of the ill-gotten majority that conservatives have seized… so really he wants to prevent it from being stabilized. But regardless, getting an amendment passed is unlikely, since it would require a supermajority vote in both houses OR two-thirds of states legislatures to approve—I think I said it requires both in my last post, but it’s either/or, and regardless, it’s unlikely to happen. But this just highlights the fact that the number of seats on the Supreme Court is not written into our Constitution. In fact, the Framers of the Constitution had little to say about the structure of the Supreme Court, preferring to leave that to the first Congress, who in the Judiciary Act of 1789 established three circuits and a Supreme Court of six justices who would preside over the circuits. Even then, though, Senators argued for more than six justices, suggesting that a deeper bench of justices would lend the court dignity, like England’s Exchequer chamber, and that having more critical minds at work would make for better considered verdicts. In the end, though, they settled on the six, reasoning that, as the country’s population grew, they could always add more. Since then, seven more times, by the passage or repeal of Judiciary Acts, it has fluctuated between 5 and 10 seats. So all it takes, all it has ever taken, is an act of Congress to add seats to the Supreme Court. What Rubio wants to do with an amendment is take away the ability of Congress to pass Judiciary Acts to alter the structure of the Supreme Court, which itself would be a “further destabilization of essential institutions.” But the question to be considered now is, what was the reasoning, historically, behind changes to the structure of the Supreme Court, and how does it reflect on the case for expanding the Supreme Court today?

The first of these changes to the structure of the Supreme Court came just after the contentious election of 1800, about which I spoke so much in my episode on Illuminati conspiracy theories in America, and the Judiciary Act of 1801 was extremely controversial then and even today. The act, passed by lame duck Federalists after their party’s power had essentially been obliterated with John Adams’s defeat in the recent election, was portrayed by Thomas Jefferson as a last ditch effort by Federalists to entrench their power institutionally in the judicial branch of government. It looked suspicious that it had been passed with such haste less than a month before Jefferson’s inauguration, creating with the stroke of a pen several new circuit courts and with them, more than 20 new judge seats, 18 of which Adams managed to fill with so-called “midnight appointments” made between February 20th and March 4th, literally the day before Jefferson took office. And not only did this act dramatically expand the federal court system and pack it with Federalists, it also made it more difficult for Jefferson to put any man of his own on the Supreme Court by establishing that, at the time of the next vacancy, the court would simply be reduced by one seat, bringing it from six to five justices. Adams refused to attend Jefferson’s inauguration, where Jefferson actually made a conciliatory plea to his opponents for national unity. Upon taking office, he found some of these midnight commissions signed and undelivered, and he refused to deliver them, instead appointing men of his own to some of these judgeships. Not only that, he immediately set about working with his party to repeal the Judiciary Act of 1801, which he succeeded in doing, reversing the expansion of the federal circuit courts and restoring the size of the Supreme Court. A few years later, when Federalist Supreme Court Justice Samuel Chase publicly expressed his dissatisfaction with the act’s repeal, Jefferson called his remarks “seditious” and encouraged the House of Representatives to impeach him, which they did. This was the first and only time a sitting Supreme Court Justice was impeached.

Tiebout, Cornelius, Engraver, and Rembrandt Peale. Thomas Jefferson, President of the United States. [Philada. Philadelphia: Published by A. Day, No. 38 Chesnut Street, Philada., ?] Photograph. Retrieved from the Library of Congress, <www.loc.gov/item/96522974/>.

For about a century, historians gobbled up Jefferson’s version of the Midnight Judges Act, vilifying Adams for abusing his power to embed Federalism in the courts, but in the 20th century, this view of the act has been questioned. In point of fact, the act had been written before the Federalists lost their power in the election, and all of its provisions were enacted to address the real concerns of Supreme Court Justices. The way the court system had been established in 1789, the Supreme Court was the highest appellate court, but some of its justices were also required to sit as trial judges in the circuit courts. This meant that justices had to “ride the circuit,” or travel sometimes great distances in inclement weather in order to judge cases in the various circuit courts, and it also meant that, when some of the same cases they had presided over on the circuit were appealed, they were appealing to the same judge who had already decided the case. While it was believed that Supreme Court Justices would become better judges by being out there, sitting in courtrooms all across the country, justices complained that the burden of constant travel prevented them from cultivating their knowledge of the law through study—basically time they spent on the road, they said, would be better spent in a library—and the fact that the process frequently resulted in them reviewing their own decisions shows it was poorly thought out. In practice, circuit courts often could not even be convened because the Supreme Court Justice who was supposed to preside did not show up. So, although the making of midnight appointments placing mostly his own loyal Federalists into judgeships remains questionable, the Judiciary Act of 1801 can be seen as a clear attempt to address these problems by creating the office of the circuit court judge, and since Supreme Court Justices would no longer need to ride the circuit, it stood to reason they also would not need so many justices. Thus the reduction in seats. Perhaps the most important lesson to take from this episode, however, can be found in a petition to Congress by the Supreme Court in 1792, asking for Congress to fix the court. In their appeal, they referred to the “general and well-founded opinion” that the Judiciary Act of 1789 that had created the court “was to be considered as introducing a temporary expedient rather than a permanent system and that it would be revised….” Here the first Supreme Court Justices themselves indicate that the structure of the Supreme Court was not set in stone at its creation. Rather, it was meant to be an evolving institution, changing with the needs of the country.

At first, the court expanded specifically because of the growth of the country. After the repeal of the Judiciary Act of 1801, justices were once again required to ride the circuit, but as new circuit courts were added, so also were new Supreme Court Justices to ease the burden. With the Seventh Circuit Act of 1807, another circuit was added and thus another Supreme Court justice. Then during Andrew Jackson’s administration, the Eighth and Ninth Circuits Act of 1837 added a couple more, bringing the number of justices to nine. If we had continued to keep the number of seats on the bench proportional to the number of regional circuits, then we would have 12 or 13 justices now, but this did not remain the basis for the Supreme Court’s structure. A 10th Circuit and thus a 10th justice were added briefly during the Civil War, but in 1866, the Judicial Circuits Act reduced the number of circuits to nine and the number of Supreme Court seats to seven. This act was really a redistricting effort to minimize the influence of Southern slaveholding states, which because of the way circuits had been drawn had previously dominated the Supreme Court. Finally, in 1869, another Judiciary Act set the number of justices at nine and once more created circuit court judges who would sit with district court judges to hear appeals, thus greatly reducing the burden placed on Supreme Court justices of having to ride the circuit. One would think that, after this, all was well. Thus divorced from the circuit courts, nine justices should have been plenty to hear whatever higher appeal cases arose, especially since only 6 of those justices were needed to form a quorum, the minimum number assembled to be considered valid. But the country was growing still, and so was the court’s workload. By the late 19th century, with around 600 new cases being filed a year, they were running a backlog of nearly 2 thousand cases! Once again, the Court appealed to Congress, and many believed then that the Supreme Court should be expanded to eleven or even eighteen justices in order to handle their case load. One Senator Manning even proposed that it be expanded to 21 justices composed of three panels of seven justices each! In the end, though, instead of expanding the bench, Congress chose to reduce the case load first, in the Judiciary Act of 1891, by creating a court of appeals for every circuit, and then, in 1916, by giving the Supreme Court the right to decline to review cases. So rather than increase the ability of the highest court to take on more cases, they enabled it to simply refuse to consider cases. So the Supreme Court went from hearing arguments on nearly 100% of the cases brought before it to considering only around 1% of petitions.

FDR delivering a “fireside chat.” Public Domain, via Wikimedia Commons

Then came the Great Depression and Franklin Delano Roosevelt’s New Deal legislation, intended to aid in the country’s recovery. FDR could not contain his disappointment and reproval when the Supreme Court handed down a series of decisions in 1935 and ’36 that vitiated some key centerpieces of the New Deal, such as the Railroad Retirement Act, the Agricultural Adjustment Act, the National Industrial Recovery Act, and a minimum wage law for women and children. In one of his signature Fireside Chats in March of 1937, he characterized the court as working at counter purposes with the rest of the government. To FDR, the refusal of older justices to retire was something that had not been foreseen by those who had crafted the structure of the court, allowing a bench dominated by individuals who were out of touch with the current needs of the country and the political will of the people. He proposed the automatic addition of a younger justice whenever a sitting justice reached 70 and refused to retire. This proposal was dubbed “court packing,” a term you may have heard recently with the resurgent talk of expanding the bench. If such a policy were enacted through legislation today, it would automatically result in the addition of three new justices, one each for Stephen Breyer, Clarence Thomas, and Samuel Alito, all of whom are 70 or older. The total number of justices would rise to 12 until some older justices retired. And if Sonia Sotomayor and John Roberts, both of whom are nearing seventy, didn’t retire in a few years, that number could climb higher. But no Democrats have specifically proposed FDR’s plan. Nevertheless, opponents of expanding the court still summon memories of this controversial proposal by calling any judicial reform “court packing.”

As a bit of an aside, I recently received a critical email from a listener suggesting that I have a case of historical blindness because in my last episode I referred to the current Supreme Court as “packed” and “conservative-packed,” after asserting that Trump had packed it with conservative justices. He, like some in that media, would accuse me of purposely misusing the term, and of projection, since in his view, I am saying conservatives are guilty of packing the court, when liberals are the one advocating “court packing” in the 1930’s sense of the term. First, I’ll say that I would never claim to be immune from historical blindness. I have many times during the course of making this podcast exploded myths that I myself have previously held as true or even mentioned on the show! Case in point: the midwife-witch and folk healer-as-witch myths that I believe I ignorantly spread before discovering they were dubious this October. However, in this case, I don’t believe that the word “packing” is or even historically was used only to refer to Supreme Court expansion. Who can forget the ribald jokes about “Bush packing” when George W. Bush was being accused of packing the courts. Indeed, if you look to the useful Google NGram tool, it’s rather easy to see how early the term was being used. While the specific phrase “court packing” does indeed first peak in the literature of 1937, the phrases “packed bench” and “packed court” (the latter of which was the term I used) were in fact far more commonly used in the 19th century. The terms “packed court” or “packed bench” were invariably used to refer to courts in which the judges were prejudiced, among whom a certain ideology dominated, coloring their decisions. An apt example of this usage can be found in the remarks of Ohio Representative Benjamin Wade regarding the Supreme Court decision on the Dred Scott case, when he called the justices “packed judges—for they were packed, and I have about as little respect for a packed court as I have for a packed jury.” To clarify, Wade was alleging a conflict of interest, a prejudice or bias, stating, “I believe, the majority who concurred in the opinion were all slaveholders, and, of course, if anybody was interested to give a favorable construction to the holders of that species of property, these men were interested in the question.” So, as it turns out, I would venture to assert that my usage of the term “packed court” as referring to a bench of justices dominated by ideologues was correct. Of course, that is a case that I’ll have to make, and I’ll attempt to do so, momentarily.

The Supreme Court bench that Benjamin Wade called “packed,” via supremecourthistory.org

FDR’s “court packing” proposal ended up fizzling out when the Supreme Court started reversing decisions and finding in favor of New Deal legislation. Some have portrayed this as the Supreme Court beating FDR at his own game, causing him to lose support for “court packing” because there was no longer a need for it. However, another view is that he put political pressure on the court and got what he wanted. A historical debate has since raged over whether or not the justices of the Supreme Court at the time were actually swayed by FDR’s pressure or whether they would have ended up coming to their favorable decisions regardless. This debate, between “externalists” arguing that external pressure made the difference, and “internalists” who assert that the justices did not allow themselves to be influenced by partisan politics, really gets at the heart of the debate surrounding both the Supreme Court’s partisanship and its role among the tripartite branches of government. One common view is that regardless of the personal views of the justices, the Supreme Court is inevitably a majoritarian force, if not bowing to the will of the party in power then at least leaning in the direction the wind seems to blow, which is sometimes in the direction of cross-partisan coalitions. The idea here is that the court must play politics to a certain degree and cannot make decisions that are unpopular with the majority or they may be viewed as illegitimate and risk congressional intervention. This view works well with the externalist idea that FDR made them reverse their decisions by appealing to the people and painting them as obstructive to the national recovery. Then there is the view that the Supreme Court justices truly are uninfluenced by politics, a perspective that somehow raises them up as superior to most people in their ability to disregard such matters, a view encouraged by the “internalist” interpretation of this so-called Constitutional Revolution of 1937. But then there is the view that the Supreme Court is a counter-majoritarian force, in that, through its power of judicial review, it can strike down legislation passed by the representatives elected by the people, and thus acts as a check on not just other branches of government but on the will of the majority. Although historians of the court consider this latter view of its role something of a myth, Roosevelt certainly seems to have held it, at least until the court turned his way. But what about today? Can this Supreme Court be considered a “packed court” dominated by partisan activists poised to act counter to the will of the people?

If we are looking for proof of a concerted effort to pack the bench of the Supreme Court and federal courts generally with justices who will take a conservative view in all their decisions, we need look no further than the Federalist Society. You may have heard of this organization before, but now, after my discussion of Adams’s midnight appointments, you know that their name could easily be interpreted as a reference to the original court-packers, the Federalists. Starting out during the Reagan Era as a group of conservative and libertarian law students mentored by Antonin Scalia, they bemoaned the atmosphere of liberal academia and advocated for a more originalist view of the Constitution. Since then, the organization has grown by leaps and bounds, mainly due to a vast influx of funding from donors with deep pockets, so that now it boasts several tens of thousands of members, law professors, politicians, pundits, and judges. In fact, many in the field see the Federalist Society as their best shot at securing a judgeship, because the organization has established itself as the go-to for any Republican President, providing a short-list of candidates who conform ideologically with their conservative principles. So you have lawyers and judges toeing this ideological line, kowtowing to the Federalist Society and their rubric in order to secure a better chance of advancement. At this point, the majority of the Supreme Court bench attained their lifetime appointments by meeting this de facto conservative requirement of membership in the Federalist Society: Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and now Amy Coney Barrett, who seems to have been groomed by the society to take her seat on this packed bench. An enlightened centrist might argue that both sides are guilty of such judge grooming, but in fact, the frequently cited liberal counterpart to the Federalist Society, the American Constitution Society, was only formed in 2001 when the growing influence of the Federalist Society became clear after the Supreme Court handed George W. Bush the presidency. The ACS, however, is still in its infancy, without the deep funding and membership that the Federalist Society enjoys.

Now, it may be hard to imagine anyone these days being wide- and dewy-eyed enough to argue that the Supreme Court really is the non-partisan institution that idealists would like it to be. But the mere fact that the Supreme Court bench is and always has been a partisan battleground doesn’t mean that taking back a majority for the other side is enough of a justification for expanding the court. In fact, such an argument should rightly be viewed as squalid and distasteful. Actually, I don’t shrink from suggesting that the ruthless tactics employed by conservatives like Mitch McConnell and the Federalist Society to take their majority might call for equally obdurate countermeasures, and that “balancing” the court would not be an unfair characterization of such measures. However, there is a far more virtuous case to be made for the expansion of the Supreme Court. Beyond a possibly pressing need to thwart a counter-majoritarian power grab, there is the fact, as made evident throughout this history of the Supreme Court, that having a deeper bench would allow the highest appeals court in the country to take on far more cases than it currently deigns to hear. More decisions would result in more consistency and clarity in American jurisprudence. More cases means more chances for judicial review and interpretation, which makes the Supreme Court a far more effective check on the executive and legislative branches of government as well. And more justices, able to rotate and interchange in differently structured quorums, would vastly reduce the influence of swing votes. Right now, just as swing states decide presidential elections, swing justices decide most important interpretations of the Constitution. Reducing the disproportionate power of the swing justice will then in turn reduce partisan activism on the court, or at least it will diminish the perception of its politicization. And that is just what the U.S. needs right now, to turn down the country’s partisanship generally. This might be a hot button partisan issue, but it represents a path to a little less division.

Further Reading

Bomboy, Scott. “Packing the Supreme Court Explained.” Constitution Daily, 20 March 2019, constitutioncenter.org/blog/packing-the-supreme-court-explained.

Bridge, Dave. “The Supreme Court, Factions, and the Counter-Majoritarian Difficulty.” Polity, vol. 47, no. 4, 2015, pp. 420–460. JSTOR, www.jstor.org/stable/24540303.

Carney, Jordain. “Rubio to introduce legislation to keep Supreme Court at 9 seats.” The Hill, Capitol Hill Publishing, 20 March 2019, thehill.com/homenews/senate/434888-rubio-to-introduce-legislation-to-keep-supreme-court-at-nine-seats.

Carpenter, William S. “Repeal of the Judiciary Act of 1801.” The American Political Science Review, vol. 9, no. 3, 1915, pp. 519–528. JSTOR, www.jstor.org/stable/1946064.

Farrand, Max. “The Judiciary Act of 1801.” The American Historical Review, vol. 5, no. 4, 1900, pp. 682–686. JSTOR, www.jstor.org/stable/1832774.

Gramlich, John. “How Trump compares with other recent presidents in appointing federal judges.” Pew Research Center, 15 July 2020, www.pewresearch.org/fact-tank/2020/07/15/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/.

Greenberg, Jon. “Fact-check: Why Barack Obama failed to fill over 100 judgeships.” Politifact, Poynter Institute, 2 Oct. 2020, www.politifact.com/factchecks/2020/oct/02/donald-trump/fact-check-why-barack-obama-failed-fill-over-100-j/.

Kalman, Laura. “The Constitution, the Supreme Court, and the New Deal.” The American Historical Review, vol. 110, no. 4, 2005, pp. 1052–1080. JSTOR, www.jstor.org/stable/10.1086/ahr.110.4.1052.

Kruse, Michael. “The Weekend at Yale That Changed American Politics.” Politico Magazine, Sep/Oct. 2018, www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608.

Madonna, Anthony J., et al. “Confirmation Wars, Legislative Time, and Collateral Damage: The Impact of Supreme Court Nominations on Presidential Success in the U.S. Senate.” Political Research Quarterly, vol. 69, no. 4, 2016, pp. 746–759. JSTOR, www.jstor.org/stable/44018054.

Mandery, Evan. “Why There’s No Liberal Federalist Society.” Politico Magazine, 23 Jan. 2019, www.politico.com/magazine/story/2019/01/23/why-theres-no-liberal-federalist-society-224033.

Matthews, Dylan. “The incredible influence of the Federalist Society, explained.” Vox, 3 June 2019, www.vox.com/future-perfect/2019/6/3/18632438/federalist-society-leonard-leo-brett-kavanaugh.

Robinson, Nick. “Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts.” The American Journal of Comparative Law, vol. 61, no. 1, 2013, pp. 173–208. JSTOR, www.jstor.org/stable/41721718.

Surrency, Erwin C. “The Judiciary Act of 1801.” The American Journal of Legal History, vol. 2, no. 1, 1958, pp. 53–65. JSTOR, www.jstor.org/stable/844302.

“What Is The Federalist Society And How Does It Affect Supreme Court Picks?” NPR, 28 June 2018, www.npr.org/2018/06/28/624416666/what-is-the-federalist-society-and-how-does-it-affect-supreme-court-picks

Williams, Joseph P. “McConnell to End Senate’s ‘Blue Slip’ Tradition.” U.S. News & World Report, 11 Oct. 2017, https://www.usnews.com/news/politics/articles/2017-10-11/mcconnell-to-end-senates-blue-slip-tradition.

The Smoke-Filled Room: Contested Elections in America

This was written before November 3rd, so if you’re wondering why I didn’t address some travesty or other, that is why. At the time of its posting, Joe Biden has been declared President Elect, but Trump continues refusing to concede, which unfortunately has ensured the continued relevance of this episode's subject matter.

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Prominent conspiracy theorist Donald Trump has long been casting doubt on the legitimacy of presidential election results. The most obvious early example of this was his claim, made very vocally in media appearances during Barack Obama’s 2011 reelection campaign, that Obama was not born in America, which if it were not completely false, would have made the 44th President illegitimate. Audio clips Then in 2015, when he was running for President, he made baseless claims about widespread voter fraud and election rigging and refused to commit to a peaceful transition of power. Audio clips Even after he won the office of President, he continued to claim that widespread voter fraud was the only explanation that he hadn’t won the popular vote, even going so far as to form a voter fraud commission to investigate. Audio clips Finding no evidence of widespread voter fraud, his commission was short-lived, and he quietly dissolved it without its having any effect on election law. Considering this background, it should have come as no surprise this year, during his reelection campaign, that he would again cast doubt on the legitimacy of the election before results were even determined. Audio clips Despite his claims, expert after expert have confirmed the security of mail-in ballots, which have long been used by absentee voters. But doubling down on his conspiracy theory, Trump went so far as to recommend that his base engage in voter fraud in order to counteract the voter fraud he suspected would be taking place. Audio clips And this wasn’t the only measure he took. It is one thing to expect election results not to be satisfactorily determined by the end of election day during a pandemic when many mail-in ballots have yet to be counted. It is quite another to hatch plans to contest the election results when polls are showing you trailing. Alarm bells rang earlier this summer when Trump appointees on the US Postal Service Board of Governors installed a new Postmaster General who began sweeping cost-cutting measures that some feared were designed to slow mail delivery ahead of the election, though it may be just as likely that these measures were an effort to make the USPS fail in order to justify its privatization, or that they were indeed earnest if misguided attempts to restore the agency’s solvency. Some of these may be conspiracy theories, and I recognize that, but Republicans certainly aren’t making it easy to disbelieve such claims. Here in California, the Republican Party got caught and admitted to placing more than 50 drop boxes om public that they had fraudulently labeled “official ballot drop off box[es].” Then there are the troubling inroads they’ve made with the Supreme Court, which Trump has had the opportunity to pack with conservative justices specifically sympathetic to his brand of authoritarian executive privilege because of the unfortunate recent deaths of sitting justices, and because of Republican obstruction during Obama’s final term and Senate hypocrisy in ramming through a nominee just days before the election. It is this conservative-packed Supreme Court bench that could be called upon to determine the outcome of a contested election, which seems more and more likely since all it would take would be for Trump’s sycophantic Attorney General to make some claims election fraud, and we have already seen that Bill Barr is willing to undertake whatever baseless investigation into political rivals that his boss requests. Already, without the benefit of having the latest Trump-nominated justice on the bench, this Supreme Court has decided that in Wisconsin, mail-in ballots that were postmarked by election day will not be valid if they are not received before the end of the day. In other words, voters who did everything they were supposed to do, and got their ballot in the mail in time, or even early, might have their ballots thrown out depending on the speed with which the postal service processes their ballot—a clear victory for Republicans, who have established themselves as the party of voter suppression. With the new justice Amy Coney Barrett on the bench, it would seem the circumstances favor Trump in the seemingly unavoidable event of a contested election. Indeed, by the time this episode releases, I anticipate that it will be well underway, unless one of the candidates wins by an inarguable landslide. It all seems rather chaotic and messy, not politics as usual… but is this really such an unusual scenario? What can American history tell us about how we deal with contested elections?

As I write this, less than a week remains until election day, but I do not anticipate that by election day we will know the results of this election. Indeed, I expect the results to take some time to calculate based on the delayed return of mail-in ballots, and then I assume we will see some kind of challenge to the results, whether that be from Trump claiming fraud or from Biden citing voter suppression. So by the time I publish this, the issue may still be foremost on American minds. Of course, I may be wrong, and there may be a landslide victory such as cannot be denied, such that contesting the results reported by any one state wouldn’t make a difference, but I doubt it because of how close elections have been in recent elections. In 2016, it was close enough that Trump won without earning the largest number of votes. And similarly, in 2000, George W. Bush also won the Electoral College vote but not the popular vote, and that election ended up being decided by the Supreme Court—not because Bush’s rival Al Gore had earned more votes, but because of voter irregularities in Florida that cast doubt on whether Bush should have taken its electoral votes. Who can forget the ceaseless jabbering of cable news talking heads about the Florida punched card ballots, which apparently presented a lot of clarity problems when their chads not completely punched, resulting in “fat chads” and “hanging chads” that weren’t properly counted by vote tabulating machines. While this ballot system was discontinued in the U.S., Trump’s recent grumblings about ballot security may portend another long battle looking endlessly at the ballots used certain states. Again, if I’m wrong, great! Even so, a close look at the history of our presidential election process seems warranted, and we must start with the Electoral College, which caused much upset and debate in the aforementioned elections of 2000 and 2016.

Punch card chads, photo by Marcin Wichary, licenced under Creative Commons (CC BY 2.0)

One delegate at the Constitutional Convention of 1787 described the issue of how to decide presidential elections and “the most difficult…on which we have had to decide.” The sovereignty and factionalism of separate states in the Union required an arcane and unique system. In seeking a historical precedent for the electoral college, one would have to look to the Holy Roman Empire, whose emperor was chosen prince-electors, or the Roman Catholic Church, whose Pope is selected by a College of Cardinals. This is especially ironic given the Founding Fathers’ feelings about royal governments and papistry. The idea, though, was to preserve the union by assuring small states that they too had a stake in the election of the chief executive. Thus, while electors, or representatives appointed to cast a vote for the president, were apportioned based on population, every state would receive at least two electors automatically. And in the event of no single candidate earning a majority of electoral votes, which the Framers expected would usually be the case, the contest would be decided by the House of Representatives, in which case each state would receive one vote only, completely equalizing populous and less populous states. And all states would enjoy the freedom to determine how they would select each of their districts’ electors, whether it be by popular vote or caucus. Almost immediately problems with the system arose, the first being that the number of electors apportioned to Southern states would be inflated by their slave population, who were not permitted to vote. Their notorious compromise to address this problem at the convention was that slaves would only count as three-fifths of a person with regard to not only number of electors apportioned but also House representation and taxation. The next complication was the emergence of partisan politics. By the original design, the runner-up would be installed as the vice-president, but in 1796 this resulted in an administration of bitter rivals, with John Adams as president and his opponent Thomas Jefferson as vice president. Imagine for a just moment if Hillary Clinton had been installed as Trump’s Vice President. Then in the election of 1800, during the Illuminati scare that I spoke so much about in a recent episode, the Democratic-Republicans nominated Jefferson for president and Aaron Burr as their choice for Vice President, but the two of them tied for electoral votes, which cast the contest into the House of Representatives to decide who would be President. Since electoral votes for not a particular office, Burr had as legitimate a claim to the presidency as Jefferson, despite being his party’s second choice. In fact, as every state had equal say in the House contingency, their Federalist rivals, bitter over their recent defeat, tried to vote Burr in to spite Jefferson, and it took more than thirty votes ending in an impasse with no clear majority until a single representative from Delaware final broke the deadlock and gave the majority to Jefferson. Thereafter, the Twelfth Amendment was ratified, requiring electors to cast different ballots for the offices of president and vice president.

This was by no means the end of the issues with the Electoral College system the Framers had settled on. As indicated, the Framers actually expected that presidential candidates would rarely earn a majority of electoral votes, which would mean that elections would typically be decided by the House contingency of one vote per state. It ended up being quite the reverse, though. The last time there was no electoral majority and the House contingency decided an election was in 1824, and it was far from a neat solution. The old political party system, of First Party System, had been in decline for a decade, with American politics now dominated by the party of Jefferson, the Democratic-Republicans, and in 1824, four candidates vied for the highest office all under this party’s banner: Henry Clay, William Crawford, John Quincy Adams, and Andrew Jackson. You may remember Donald Trump declaring early in his presidency that he believed himself to be very much like Andrew Jackson, an assertion that promptly drew criticism because of Jackson’s atrocities against Native Americans. Maybe Trump was referring to the way Jackson was not taken seriously early in his campaign, but more likely he meant Jackson’s reputation as a populist president, wrongfully denied the office he had earned through popular support when a rigged system gave the election to John Quincy Adams instead, afterward leading to his indisputable populist victory in the next election cycle and earning him the nickname King Mob. Indeed, this is a view of the election of 1824 promulgated by many historians, for although Jackson did not win a an electoral majority, he won a plurality, meaning he won more electoral votes than any other candidate, and unlike Trump, he also appears to have won the popular vote. Nevertheless, the House of Representatives voted in John Quincy Adams, which on its surface certainly does seem like a miscarriage of national politics, as they gave the office to a candidate with both fewer electoral votes and fewer votes generally. In reality, though, it’s not so clear that Jackson won the popular vote. Then, as today, it appears that many votes were suppressed, as entire counties worth of votes were not counted because they arrived late, or because when they did arrive, a certain seal that was required was missing. Furthermore, a lot of tallies of Jackson’s lead in the popular vote are calculated by which electors people voted for, that that is unreliable, as many electors appear to have been pledged to other candidates, like Clay or Crawford, but only gave their vote to Jackson later, which certainly doesn’t mean the people in those districts were voting to Jackson. And remember that number of votes from Southern states that supported Jackson are exaggerated by the Three-Fifths Compromise. Furthermore, the popular vote figures commonly cited today don’t even include states whose electors were chosen directly by their legislatures, including the extremely populous New York, which likely would have increased the popular vote count for John Quincy Adams since support for Jackson in New England was non-existent. So the idea that Andrew Jackson was such a clear winner may be something of a myth. But that’s not really the issue. Even if he were the clear winner of the popular vote, the fact that he didn’t get a majority of electoral votes meant that the House got to decide, in the proverbial smoke-filled room, with one vote per state, regardless of the will of the people. That’s how the Constitution was written, and that’s the problem.

This perceived “corrupt bargain” contributed to Jackson being swept into office in the next election, as depicted in the above public domain illustration.

The further problems with the Electoral College were apparent by this election of 1824. The Framers had expected states to choose electors on a district by district basis, such that not all electors in a state would vote for the same candidate, thus better representing the “sense of the people” as Alexander Hamilton put it, but many chose instead to use a winner-take-all system instead, and by 1836, all but one state had followed suit. The clear incentive to the winner-takes-all method was that a state’s influence in the Electoral College would be diluted if they allowed their electors to vote for various candidates. Then, of course, winner-takes-all politics contributed to the stranglehold of a two-party system, which in turn guaranteed that there would always be an electoral majority. After 1824, it has happened again four more times that a candidate won the office of president without receiving the most votes, and since the two most recent instances, 2000 and 2016, many have called for getting rid of the Electoral College. Predictably opposed to such a change, Constitutional purists, as always, tout the wisdom of the Framers of the Constitution, but in truth, the Electoral College did not turn out how the Framers envisioned. They did not anticipate winner-takes-all politics or a two-party system as we have it now, and further, they did not anticipate the apportionment of electors eventually providing an advantage to less populous states, such that now, per capita, voters in populous states like California have less clout than voters in, say, Wyoming, based on number of electors per voting-age citizen—about 200% less clout in fact. And the winner-takes-all system means empowers so-called “swing states,” encouraging candidates to cater to the issues of small populations just to ensure electoral college victory, while taking “safe states” for granted. Then of course there is the feeling of powerlessness in safe states when voting for a different candidate than most of the state. But getting rid of the Electoral College is more difficult than it sounds. It can’t be done by executive order, or ratification by the House or Senate alone. In fact it would take ratification by two-thirds of both houses of Congress, and then further ratification by 38 states! There are alternatives, though. Some states are entering into a compact to pledge their electors to whichever candidate wins the popular vote. If enough states entered this compact, it would eventually make the Electoral College something of a dead letter. Another option is ranked-choice voting, which, if states allowed it, could make it possible for third-party candidates to get a foothold and break through this two-party system.

Finally, as our last historical example of a contested American presidential election decided in an honest to God smoke-filled room, let’s look to 1876, the first incident of a candidate winning the popular vote but losing the election after 1824, for this was by far the most acrimonious and bitterly fought election in our history, and came close to ending in national chaos. The specter of the Civil War still haunted the country, with the surrender at Appomattox only a decade earlier and the chance at a peaceful reconciliation killed with President Lincoln at Ford Theater. Since then, the Radical wing of the Republican party had reigned supreme, controlling the North and also the South through Federal troops stationed there during Reconstruction, Northern opportunists called carpetbaggers who went South to profit from Reconstruction, and emancipated slaves. During this decade of punishment, white Southerners of the Democratic Party strove slowly but surely to wrest back political control of Southern states, in in 1876, it looked like they had a fighting chance. Ulysses S. Grant was concluding a final term marked by scandal and corruption, and for their candidate, the Democrats nominated Samuel J. Tilden, a Governor of New York known for fighting corruption and famously bringing the corrupt politician “Boss” Tweed to justice. The Republicans, perhaps seeing the writing on the wall, ended up running a more moderate candidate, Rutherford B. Hayes, the Governor of Ohio, whose nomination might be looked at as a concession to the South that had suffered under the Radical wing of their party. At this point, I would be remiss if I didn’t address the elephant in the room. At this time, the two-party system of Democrats and Republicans was in full swing, but it must be recognized that the parties then were entirely different than the parties now. This is a common bit of Historical Blindness we see paraded about quite often, such as when people say the Democratic Party of today is the party of the KKK and for proof they show pics of Southern Democrats in the late 19th century, or when Republicans today brag about their party being founded by Abraham Lincoln. Audio clips In fact, if you were comparing Lincoln to the modern Republican Party, one would have to say he was Republican in name only. You see, a funny thing happened about 20 years after this election, when the Democratic Party nominated William Jennings Bryan unsuccessfully three times, undergoing an ideological shift that focused more on economic populism, decrying the abuses of the wealthy against poor workers and farmers and seeking solutions through government intervention. This was the birth of the modern Democratic Party, and simultaneously, Republicans gained a foothold in the South, where they had long been seen as the party of carpetbaggers, such that complete reversal in the electoral map occurred in the early 20th century, with almost all the states that previously went to one party now being taken by the other. So don’t let the names fool you, the Republicans and Democrats of 1876 were not the R’s and D’s of today.

Public Domain portrait of Abraham Lincoln, perhaps the most well-known RINO in American history.

Outside of the names of the parties, though, there were some real parallels with the current election. The corruption of the incumbent was a central issue, and fake news played a major part. Republicans distorted the facts to damage Tilden’s reputation, suggesting he had actually been colluding with the racketeer “Boss” Tweed, and that he’s been a proponent of Confederate secession, when neither of these was the case. Dirty tricks were also rampant, such as Republicans printing ballots in some states that placed a Republican symbol above the names of Democratic candidates hoping to trick illiterate voters. Come election day, though, it appeared that Tilden had won regardless, with a confirmed 184 electoral votes to Hayes’s 166. Rutherford B. Hayes actually went to bed that night conceding his defeat to his advisors, though, importantly, not making a public concession. Overnight, however, Republican strategists saw a path to victory in the remaining 19 electoral votes of three Southern states, Florida, Louisiana, and South Carolina. After a series of telegrams to the Republican canvassing boards, who had the power to throw out ballots and certify votes. When these three states declared for Hayes, the Democrats asserted fraud and certified their own electors. The Senate would decide which votes were legitimate, but the Senate was controlled by Republicans and refused to let the Democrat-controlled House of Representatives have a say. It appeared to many that Republicans were in the process of stealing the presidency, and another civil war loomed. Militias mustered, performing drills and parades, and Democratic governors discussed the possibility of commanding their National Guard troops to install Tilden in the White House by force, while President Grant sent troops into Southern state capitals and prepared to send the Army against the forces of any rebel states. Thankfully, some cooler heads prevailed. Recognizing that neither a Senate nor a House decision in the matter would be satisfactory, an Electoral Commission was formed consisting of five Senators, five House representatives, and five Supreme Court Justices. They voted strictly along party lines and found in favor of Rutherford B. Hayes, 8 votes to 7. This might have done nothing to head off the conflict, if it hadn’t been for Tilden’s acceptance of the decision, and most historians agree that he only accepted it because of some private dealings in a smoke-filled room at the Wormley Hotel in Washington. There, a negotiation took place that conceded much to Southern Democrats if they would accept Hayes as their President, the foremost of these concessions being a promise to recall Federal troops from the South and effectively end Reconstruction.

There was even more to this so-called Compromise of 1877, including tacit promises to fund a railroad, appoint a Southern Postmaster General, provide financial assistance for Southern states, and, ominously, to let the South deal with its own problems of race. Historians like C. Van Woodward and others have questioned the importance of the meeting at the Wormley in the resolution of the election or have suggested that the compromise has been exaggerated by historians, especially since Southern Democrats might have gotten all they wanted with Tilden as President and since it seems Hayes ended up not keeping up his end of this bargain in several respects. But whatever was the case, we can certainly see that politicians of the day worked to avoid absolute catastrophe. I look back on this episode in history with some hope. If, God forbid, a modern election resulted in such an impasse, with questions of fraud, legitimate or fabricated, casting such doubt on the results that violence or disunion appear imminent—and make no mistake, with Qanon conspiracy theorists ready to declare revolution against an imaginary Deep State and white nationalist militias demonstrating their lack of compunction about storming capitol buildings with firearms, it is a real possibility—with a packed Supreme Court being so clearly partisan and the Senate and House dominated by different parties, I would hope that those with the reins of government will actually do their jobs and find a peaceful solution. While an Electoral Commission like that of 1877 is not strictly Constitutional, there is historical precedent for it, and it helped to give at least a semblance of impartiality to the resolution of that election. And if those who govern the people have to make shadowy dealings in a smoke-filled room in order to avoid bloodshed, as distasteful as that may be, it may still be preferable to the alternative.

Political cartoon from Harper’s Weekly

*

When I wrote this, I was feeling more pessimistic than I feel now. My rather obvious prediction that Trump would contest the results with lawsuits that he hopes to bring before his Supreme Court has proven accurate, but now, with Biden declared President Elect by credible news outlets as well as by partisan networks, I am feeling more confident about a peaceful transition, regardless of Trump's tantrums. So far, threats of violence or disunion appear subdued and relegated to the fringe. This could change of course, but as it stands now, rather than hoping for some arcane bipartisan arbitration, I'm hopeful that Trump's baseless claims of election fraud will not be seriously entertained. And so far, this seems to be the case even among many who have previously enabled such rhetoric. One further concern could be faithless electors, that is electors who are pledged to give their Electoral College vote to a certain candidate but give it instead to another--yet one more serious problem with Electoral College. This leeway was meant to allow the wiser among us to prevent the election of demagogues that rise on a cult of personality, but clearly that check wasn't used in 2016. There was a record number of faithless electors that year, but some of them gave their vote to the demagogue when they were pledge to the other candidate! Some states have laws preventing the validation of faithless electoral votes, but many don't. Nevertheless, with the electoral lead that Biden has...is poised to have, the number of validated faithless electoral votes would have to be record-breaking--far more than the already historic 7 electors that defected from their pledged candidates in 2016. But while there may still be rocky shoals to avoid, it appears the ship of state has successfully entered safe harbor. Now it's time to reconcile with each other. 

Further Reading

Azari, Julia, and Marc J. Hetherington. “Back to the Future? What the Politics of the Late Nineteenth Century Can Tell Us about the 2016 Election.” The Annals of the American Academy of Political and Social Science, vol. 667, 2016, pp. 92–109. JSTOR, www.jstor.org/stable/24756145.  

Chang, Stanley. “Updating the Electoral College: The National Popular Vote Legislation.” Harvard Journal on Legislation, vol. 44, no. 1, 2007, pp. 205-229. Fairvote.org, archive.fairvote.org/media/documents/chang.pdf.

Heath, Brad. “'Dueling' electors, 'hanging chads': a history of contested U.S. elections.” Reuters, 23 Oct. 2020, www.reuters.com/article/us-usa-election-contested-examples/dueling-electors-hanging-chads-a-history-of-contested-u-s-elections-idUSKBN2781G4.

Kleber, Louis. “The Presidential Election of 1876.” History Today, vol. 20, no. 11, Nov. 1970. History Today, www.historytoday.com/archive/presidential-election-1876.

Peskin, Allan. “Was There a Compromise of 1877.” The Journal of American History, vol. 60, no. 1, 1973, pp. 63–75. JSTOR, www.jstor.org/stable/2936329.

Ratcliffe, Donald. “Popular Preferences in the Presidential Election of 1824.” Journal of the Early Republic, vol. 34, no. 1, 2014, pp. 45–77. JSTOR, www.jstor.org/stable/24486931.

A Rediscovery of Witches, Part Two: The Moon Goddess and the Cunning Folk

This is not a complete or accurate transcript of the podcast episode, as it does not include portions of my interview with Sarah Handley-Cousins.

According to Charles Godfrey Leland, as a child in Philadelphia, he had a Dutch nurse who was reputed to be a sorceress. One day, she carried him up into the attic of their home and performed a ceremony over him, placing a plate of salt with money and a lit candle by his head and laying a Bible, a key, and a knife on his little chest. Her ritual was meant to ensure that he would succeed in life as a scholar and as a wizard. The truth of this episode is impossible to determine, but indeed, Leland grew up to attend Princeton, study linguistics, and write numerous books about the traditional poetry and folklore of the Algonquian people and the Romany, or as he called them, Gypsies. Certainly the story of his early dedication to wizardry complements the eventual direction of his interests, which tended toward the occult. He spent a great deal of time traveling around Europe, especially Tuscany, and produced a volume in 1891 called Gypsy Sorcery and Fortune Telling. One of his principal sources was a woman named Maddalena, an Italian fortune teller whom Leland called his “witch informant.” From her, he received a manuscript, written in her own hand, that purported to lay out the doctrines of an ancient religion in Italy, what Leland believed to be the tenets of Italian witchcraft going back to antiquity. In prose poetry which Leland translated and expanded upon, Aradia, the Gospel of the Witches, as he called it, revealed that those persecuted as witches by the Church in early modern times were in fact a cult to the goddess of the moon, Diana, theirs was a religion of the oppressed or the outcast, revenging themselves upon the feudal lords who did them wrong and holding naked orgies in worship of Diana, which rites were mistaken by the Church as gatherings to worship the devil. The book had Judeo-Christian parallels, for in it, it was said Diana and her brother, Luciferus, the god of the sun, had a daughter named Aradia, whom they sent to earth to be the leader of the witches. Leland’s book proved to be relatively obscure, but after the spread of Margaret Murray’s witch-cult hypothesis, it was rediscovered by some and raised as proof of Murray’s thesis. The problem is, scholars like Ronald Hutton have cast doubt on its authenticity. It is fundamentally different from medieval texts derived from ancient Latin works, Hutton argues, and appears to be of 19th century origin. As it was said to have been written in Maddalena’s own hand, some have suggested that Leland’s witch informant had hoaxed him, while others have suggested that Leland himself authored the work, making it a literary fraud. Whatever the case, there is certainly no evidence beyond the book of the organized religion it describes.

Margaret Murray, who later propagated the myth that women accused of witchcraft were actually observing a secret religion, wasn’t working in a vacuum when she formulated her witch-cult theory. As I noted, she was influenced most notably by the comparative religion work of James Frazer. But she also wasn’t the first to suggest the idea that the witches of early modern persecutions in Europe were actually pagan cultists. However, Leland’s book doesn’t appear to have been an influence on Murray. Its claims were very different. It made no assertions that the Italian witchcraft it described was a pan-European religion, and nowhere was the Horned God of Murray worshipped. In her earlier work, Murray did acknowledge Diana as a goddess the witches worshipped, but she suggested that it was really Janus, the Roman god of passages, rather than Diana, the Roman goddess of the hunt. She, of course, had in mind the medieval canon law called Canon Episcopi, which described the existence of “some unconstrained women, perverted by Satan, seduced by illusions and phantasms of demons, [who] believe and openly profess that, in the dead of night, they ride upon certain beasts with the pagan goddess Diana, with a countless horde of women, and in the silence of the dead of the night to fly over vast tracts of country, and to obey her commands as their mistress, and to be summoned to her service on other nights.” This canon law was claimed to be from the 4th century CE, but many scholars believe it to have been a medieval forgery dating to the 10th century. This was the law that had encouraged more lenient treatment of witches as people with erroneous beliefs, who had been misled to believe that their dreams of night flights with Diana were real, a view reversed by the time of Pope Innocent VIII’s bull declaring them to be real devil worshipers. But even if it only dated to the 900s, where did this idea of women worshiping Diana come from? And was this the same Diana described in Leland’s Aradia?

Depiction of the goddess Diana portraying all her associations with hunting, the moon, and night flight. Public domain, via Wikimedia Commons.

It seems that what the Canon Episcopi was describing was a certain strain of folklore, and as usual, when delving into the development of folklore, it is a story of syncretism, or the merging of beliefs. For instance, the Roman goddess Diana was not the goddess of the moon but of the hunt, with perhaps some association with the sky or daylight if one can judge by the etymology of her name. However, through identification with the Greek goddess of the hunt, Artemis, she inherited associations with Selene, the goddess of the moon, and Hecate, the queen of the dead. Hecate’s rides with the unquiet dead, which became all mixed up with Northern European folklore about the Wild Hunt, may be the basis for the idea of night rides with Diana, and may also be the point of intersection between these goddess traditions and folklore about faeries, creatures whom Diana leads in her rides, much as Hecate leads a host of the dead or Odin leads a host of faeries from the underworld in his Wild Hunt. In order to account for the strange creatures described in witchcraft trials as demons, Margaret Murray came up with an unusual explanation that again shows how she leapt to absurd and unsupported extremes in reaching for some interpretation that could make the witch narratives both real and rationally explainable. She suggested that faeries, styled as demons by witch-hunters, were really a now extinct race of diminutive people, like pygmies. But lacking substantive support for such a theory, I think we can just look at it quizzically for a moment before moving on. Another strange bit of syncretism in this folklore derives from the Old Testament. Some versions of the Wild Hunt folklore motif associated it with Herod the Great’s hunt for the “Holy Innocents” who might become the prophesied King of the Jews. And strangely, Diana appears to be strongly syncretized with Herodias, wife of Herod the Great’s youngest son, Herod Antipas, who convinced her daughter Salome to ask King Herod for John the Baptist’s head on a platter as reward for a particularly alluring dance she’d performed. According to legend, once the deed was done, Salome was remorseful, and a powerful wind blew from the murdered saint’s mouth, blowing her into the sky where she was doomed to fly forever. Salome seems to have become identified with her mother, so that it was said Herodias was the legendary flying dancer, and some used Herodias’s name or some derivative of it, like Aradia, as being synonymous with the pagan goddess Diana. As usual when I delve into folklore, I come out with my head spinning, but what can we take from all this? Despite a throughline of folklore that might help us identify the myth of Diana associated with witchcraft, there remains no evidence of a widespread religion devoted to her worship. What may be more likely is that, as folklore, these myths were passed as oral traditions, and the medieval church first misunderstood these tales to be real experiences that their tellers believed they were having, and later that the stories were real indeed. And even if women of the age occasionally got together and acted out the legends of Diana/Herodias, it would not been an organized revival of pagan religion but rather a reenactment of a popular folktale. These notions would, however, be involved in just such a revival but centuries after the early modern witch purges.  

In 1951, the Witchcraft Act of 1735 was finally repealed in Great Britain, replaced by Parliament with the Fraudulent Mediums Act, and almost immediately, a man named Gerald Gardner began to give interviews with the press claiming that he was a practicing witch, carrying on an age-old tradition of witchcraft. Gardner was a colonialist, having made his fortune operating rubber and tea plantations on the Malay peninsula. After retiring to England in 1936, he took the interest he had developed in Malay tribal magical practices and applied it to the field of folklore, writing a number of monographs. Once there was no longer a law against such claims, he let it be known that there existed a coven of witches in the New Forest district of Hampshire who had initiated him into their old religion. He named a certain local woman, Dorothy Clutterbuck, as the leader of the coven, and his favorite story about her coven was that they had engaged in magical battle against Hitler, gathering numerous covens to New Forest for what was called “Operation Cone of Power.” This was an ancient and powerful spell which had previously been directed against Napoleon, and before that against the Spanish Armada. The witches danced nude in the cold night with such abandon in casting this spell that some of them died of exposure or exhaustion. This coven’s rites involved much in the way of naked dancing as well as circle rituals and feasting, much of it for the purpose of promoting fertility and to achieve trance states that brought them closer to their gods. As Gardner described this religion in his book Witchcraft Today a few years later, they worshipped two gods in a duotheistic system. One was the Horned God described by Margaret Murray, while the other was the Goddess of the Moon described by Charles Godfrey Leland. While Murray had envisioned her witch-cult as a patriarchal system led by male priests, despite her feminism, Gardner described a more feministic secret witch-cult, and it is Gardner’s work in bringing this ancient witches’ religion to light that serves as the foundation for the modern religion of Wicca and neopagan beliefs generally. But how much truth was there to what Gardner taught?

Gerald Gardner, via Fortean Picture Library

First, consider the source of Gardner’s knowledge. Scholarly historians, such as Ronald Hutton, have investigated Gardner’s claims extensively and concluded that they seem very unlikely. The woman he claimed inducted him, Dorothy Clutterbuck, appears to have been a pious Christian and conservative Tory pillar of the community, which would indicate that she lived quite a double life if true. Only one other person has been recorded as claiming to have known about the coven and its operation against Hitler, but he told of it after Gardner himself had and may have just been repeating the story as he’d heard it. There were reports that Aleister Crowley, when Gardner met him, confirmed the existence of the New Forest coven, which would seem a strange thing to need confirmed if Gardner had been initiated as he claimed, but Crowley’s diaries and other accounts of their meeting don’t mention this. What they do show is that Gardner came to him and exaggerated his academic credentials and Masonic clout, hoping to get Crowley to initiate him into the magical secret society Ordo Templi Orientis, with no such luck, as Crowley doesn’t appear to have thought much of him. What seems likeliest is that he was searching for some occult initiation to make his retirement more interesting, first in the Folk-Lore Society, then in a Rosicrucian Theater he joined, and afterward in Crowley’s order or other mystical societies, like the Order of the Golden Dawn or the Ancient Druid Order, both of which he dabbled in, and when he failed, he simply created his own brand of magical order. He made up a supposedly ancient witchcraft religion, perhaps as a prank suggesting a stodgy old woman he knew of, who had since passed away, had inducted him into her coven’s mysteries. By mashing up the work of Leland and Murray, he produced their doctrines, and for rituals he cherry picked whatever suited his fancy from those two sources, including nudity and sexual cavorting, and added some that seem to be more of his own practices, such as flagellation to produce ecstasies or hallucinations. Certainly as the religion developed, it became clear that the writings he claimed were ancient were actually, at least in part, written by him, for when a High Priestess he had initiated into his feministic religion later tried to take the reins, he conveniently produced a new discovery of supposedly ancient rules that clarified the power he as a man should have over the women in his coven, making it more of a patriarchy after all. Now, don’t get me wrong. I don’t begrudge neopagans or Wiccans the conviction of their beliefs or the freedom to express them by whatever observance they wish—as the Wiccan tenet goes, “An it harm none, do what thou wilt”—but I cannot pretend that the historical basis for the faith is any more valid than, say, that of Mormonism, or of Scientology, another religion fabricated by an acquaintance of Aleister Crowley.

Thus we have more than one myth borne out of Margaret Murray’s discredited work. First, her own myth of a pan-European pagan fertility cult mistaken for Satanists by their persecutors, and then, Gerald Gardner’s derivative neopagan religion of Wicca, claiming to be a continuation of an ancient religion that had been practiced in secret into modern times. Next came the myth that most women accused of being witches were practicing midwives, whose knowledge of medicine was feared and misunderstood as magic. But this myth did not originate from Murray. As with many descriptions of the witch, it was spread in early modern Europe by Heinrich Kramer’s book, the Malleus Maleficarum, which described midwives as the being in the perfect position to take newborns and offer their souls to the devil, or to take them for sacrifice. As we have already seen, Murray relied heavily on the Hammer of the Witches as a primary source for her interpretation, rationalizing what seemed outrageous and taking what pleased her at face value. As it went well with her theory, she argued in her characteristically assertive style that the female worshippers of her imagined fertility cult were also practicing midwives with medical expertise. This argument would be taken up again in the 1970s by second-wave feminists and as a result would be presumed true by many. In an effort to address the sexual politics and history of the marginalization of women in medicine, sociologists and social critics Barbara Ehrenreich and Dierdre English latched on to the Murray’s claims about midwifery’s connection to witchcraft allegations in their pamphlet “Witches, Midwives, and Nurses: A History of Women Healers,” and from there it spread. It would not be challenged as a myth until 1990, when medical historian David Harley wrote his article “Historians as Demonologists: The Myth of the Midwife-witch.” In his article, Harley revealed that it was actually relatively uncommon for midwives to be accused of witchcraft, as they were usually considered trustworthy women.

Witches dancing with devils, featured in The History of Witches and Wizards (1720), via Wellcome Library

While it may be a myth that midwives were common targets of witchcraft accusations, what about female healers generally? Historians have revealed to us the presence in early modern Europe of a class of folk healers whose folk medicine essentially was spellcraft, and there has long been a view both popular and scholarly that it was these wise men and women, or cunning folk, who were most commonly persecuted as witches. The problem is that this too appears to be a misconception propagated by 1970s scholarship that has since been challenged, specifically a 1979 article called “Who Were the Witches?” by Richard Horsley in the Journal of Interdisciplinary History. To clarify, cunning folk were practitioners of operative magic, meaning they performed services such as creating charms to cure people and livestock or acted as diviners for hire, telling the fortunes of those who paid them. Theirs was an especially practical magic, sought out in rural areas as a remedy to misfortunes that were believed to have been caused by evil magic or curses, counteracting black magic with white magic, as it were. I have given an apt example of cunning folk being accused of witchcraft in the famous case of the Pendle Witches in Lancaster, England, in a recent Patreon exclusive podcast episode. Because of prominent cases like these and the simple logic behind the proposition that it was practitioners of magic who were being accused of witchcraft, like the midwife-witch myth, the notion is easy to believe. I myself am guilty of having repeated the claim on previous episodes of this podcast. The problem is that there the evidence doesn’t allow for so grand a generalization. First of all, as we see in the Pendle Witches trial, much of the folk magic performed by cunning folk was widely considered a good magic and involved explicitly Catholic ritual elements—in fact, in his 1994 article in Social History, “Witch Doctors, Soothsayers and Priests: On Cunning Folk in European Historiography and Tradition,” Willem de Blécourt points out that there were even Catholic clergymen who dabbled in folk magic as well. The cunning folk certainly were not part of a pagan cult holding meetings. Historical records show they were almost invariably solitary figures, practicing extremely individualized rituals. Some may have been engaged in cursing those who had wronged them, as we see among the Pendle Witches, but those who were accused of evil magic, or maleficium, may have just been dealing with dissatisfied customers. If one hired a good witch to heal a family member or some livestock and instead of being healed their condition worsened, one might presume the charm they had worked was actually a curse. But the most problematic aspect of the cunning folk as witches claim is that it ignores the majority of the accused, who don’t appear to have engaged in the selling of magical services at all.

So let us look at what was behind the accusations against those who were not admitted practitioners of folk magic. First, there were those who were assumed to have been practicing maleficium because they had given someone an odd look or even a harsh word and afterward by coincidence some misfortune had befallen the person they’d looked at or dealt with unpleasantly, as we see was the case with Alizon Device, the first of the accused Pendle Witches. Among these, being socially isolated made the accusation harder to refute, for if no one knew you well, imaginations could run wild about what you believed and what you did with your time. And of course, witchcraft allegations as mechanism for revenge played a role in many cases as well, for when one saw that the charge of witchcraft brought someone, even an innocent, to ruin and death, what better way destroy an enemy? As for the confessions of the accused, as alluded to before, we know enough now about coercion and the effects of torture to easily explain these. In fact, some scholars have even examined the differences in confessions given under different types of torture, such as physical torment as opposed to sleep deprivation, and observed that the confessions take on a different quality of detail, with those elicited by physical torture being brief and without detail, as if blurted out to stop the pain, and those produced by sleep deprivation being more dreamlike, as though from the description of a hallucination. Nor can we discount the mere threat of torture as a driving factor behind the confessions. The details may clearly have been fed to the accused by their torturers, or they may have been gleaned from common knowledge of what witches were being accused of. The witch craze happened to coincide with a revolution in publishing that resulted in the spread of cheap publications detailing witch trials, featuring woodcuts that depicted what witches were supposedly up to so that even the illiterate acquired a working knowledge of the claims. Many accused witches hoped that by confessing to their accusers and saying they repented, the inquisitors and magistrates would have mercy on them, which certainly worked for some of them. And others, as mentioned earlier, may have simply been describing folk stories about Diana and her night rides in such a way that witch-hunters may have taken it for an admission of first-hand experience when it was only an oral tradition. Wherein lies the reality? Likely in some combination of all these scenarios.

Witches feasting, featured in The History of Witches and Wizards (1720), via Wellcome Library

The question remaining, then, is what drove the witch-hunters themselves? Typically they are depicted as zealots, unable to see past the tips of their noses, which they’d buried in the Bible. Certainly it is hard to refute that this was the case, but in recent times a more nuanced view of their motivations has emerged. The papal bull of Pope Innocent VIII that is seen as the beginning of the early modern witch craze explicitly accuses witches of having “blasted the produce of the earth, the grapes of the vine, the fruits of the trees.” This has led some historians to suggest that the real impetus behind the witch craze was climate change, specifically the Little Ice Age that cooled Europe starting as early as 1250, causing many crops to fail. As the human mind is hardwired to find someone to blame for things that are outside our control, a scapegoat was sought, and witches fit the bill. Another theory has it that the worst of the witch purges occurred in places where civil authority was relatively weak, and the execution of outsiders as witches served as a show of strength to consolidate power and enforce social conformity. But recently, in 2018, two economists, Peter Leeson and Jacob Russ, put forward a different theory, based on statistical analysis. They claim that the evidence supports the idea that the early modern witch-craze was triggered by the Protestant Reformation. By their view, the Catholic and Protestant Churches engaged in witch purges as a kind of advertisement for their respective brands of religion, each demonstrating through their witch trials their power over the devil as well as their willingness to use violence against those who rejected their faith. This may seem like conspiratorial thinking, but this could be true even without an organized conspiracy to knowingly make false accusations against and put to death innocents. Economic forces may be at work without conscious knowledge of them, and furthermore, these economic motivators may have been working in combination with the people’s desire to scapegoat for failed crops and weak governments needing to enforce their authority. As I have shown time and time again, it is more the domain of conspiracist thinking to oversimplify very complicated episodes in history in order to create a tidy explanation at which one can point an accusatory finger.

Further Reading

Crabb, Jon. “Woodcuts and Witches.” The Public Domain Review, 4 May 2017, publicdomainreview.org/essay/woodcuts-and-witches.

De Blécourt, Willem. “Witch Doctors, Soothsayers and Priests. On Cunning Folk in European Historiography and Tradition.” Social History, vol. 19, no. 3, 1994, pp. 285–303. JSTOR, www.jstor.org/stable/4286217.

Ehrenreich, Barbara, and Deirdre English. Witches, Midwives, & Nurses (Second Edition) : A History of Women Healers. Vol. 2nd ed, The Feminist Press at CUNY, 2010. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=nlebk&AN=597965&site=eds-live&scope=site.

Harley, David. “Historians as Demonologists: The Myth of the Midwife-witch.” Social History of Medicine, vol. 3, no. 1, April 1990, pp. 1–26. Oxford Academic,  doi.org/10.1093/shm/3.1.1.

Hutton, Ronald. “Paganism and Polemic: The Debate over the Origins of Modern Pagan Witchcraft.” Folklore, vol. 111, no. 1, 2000, pp. 103–117. JSTOR, www.jstor.org/stable/1260981.

———. The Triumph of the Moon: A History of Modern Pagan Witchcraft. Oxford University Press, 1999.

Leeson, Peter T., and Jacob W. Russ. “Witch Trials.” The Economic Journal, vol. 128, Aug. 2018, pp. 2066-2105. PeterLeeson.com, www.peterleeson.com/Papers.html.

Magliocco, Sabina. “Who Was Aradia? The History and Development of a Legend.” The Pomegranate: The Journal of Pagan Studies, no. 18, Feb. 2002. The Wayback Machine, web.archive.org/web/20070717043727/http://chass.colostate-pueblo.edu/natrel/pom/pom18/aradia.html.

Murray, Margaret Alice. The God of the Witches. Blackmask Online, 2001. Internet Archive, archive.org/details/godwitch/mode/2up.

———. The Witch-Cult in Western Europe. Oxford University Press, 1921. Project Gutenburg, www.gutenberg.org/files/20411/20411-h/20411-h.htm.