Ruth Bader Ginsburg and
the Confederacy's Judah Benjamin
Remarks for Jewish Council for Public Affairs in appreciation for the Albert D. Chernin Award, February 18, 2002
Publisher's Note: Associate Justice of the Supreme Court of the United States, Ruth Bader Ginsburg, passed away September 18, 2020 from metastatic pancreas cancer at age 87. She was popularly known as RBG. I am the political opposite of RBG but I admired her toughness and dignity in fighting through several life-threatening illnesses as she continued to do her work on the court. That kind of toughness is an All-American virtue we can all admire. Below, is a fascinating speech she gave, full of history and perspective, on Judah Benjamin and his life and accomplishments. It is interesting to read these admiring words from a very liberal Supreme Court justice about a man fighting for the ultimate in conservative principles: States' Rights, a weak Federal Government, power to the individual, low taxes and tariffs, and a true federal republic such as our Founding Fathers created in 1776. That magnificent republic is a foreign concept to big government liberals like RBG.
Ruth Bader Ginsburg
Supreme Court of the United States
February 18, 2002
The Court begins a heavy sitting period tomorrow. At such times, I seldom stray from the briefs piled on my desk. But I could not resist a pause in today's occupations to accept this award from the Jewish Council for Public Affairs, an organization comprising agencies devoted to the social imperatives of Judaism.
On walls of my chambers, I have posted in two places the command from Deuteronomy -- "Zedek, Zedek," "Justice, Justice shalt thou pursue." Those words are an ever present reminder of what judges must do "that they may thrive." There is an age old connection between social justice and Jewish tradition. Supreme Court Justice Arthur Goldberg, whose tenure on the Court, 1962-1965, was far too brief, once said: "My concern for justice, for peace, for enlightenment, . . . stems from my heritage." Justice Breyer and I are fortunate to be linked to that heritage.
Preparing some years ago for a lecture on the Jewish Justices who preceded Justice Breyer and me, I learned that Louis D. Brandeis was not the first Jewish nominee to the U.S. Supreme Court. I have since read more about the man who might have been first, and thought perhaps you would find his life as intriguing as I did. The person who might have preceded Brandeis hailed from Louisiana. His name was Judah Benjamin. He was intensely involved in public affairs, though you and I would agree that he chose the wrong side.
Publisher's Note: Ruth Bader Ginsburg was born in New York in 1933. She obviously was unaware that New York was one of three states that reserved the right of secession before acceding to the Constitution. The other two are Rhode Island and Virginia.
RBG should have known that the acceptance of the reserved right of secession of New York, Rhode Island and Virginia by the other states, also gave the right of secession to all of the states, because all entered the Union as equals with the exact same rights under the Constitution.
As a judge and interpreter of the Constitution, RBG's knowledge of the origins of the Constitution, and American history in general, were abysmal.
She must have thought the Constitutional Convention of 1787 was called so the Founders could establish the huge all-powerful Federal Government we have today.
If any participant had even mentioned such a thing, the rest would have run for the door. There never would have been a Constitution. None of the 13 states, North or South, would have even considered such an absurdity.
RBG should have known that Horace Greeley and even Abraham Lincoln believed in the right of secession until they realized Southern secession would affect their money.
She should have known that Northern states threatened to secede several times before the War Between the States and New Englanders almost did with their treasonous Hartford Convention.
As President Dwight D. Eisenhower said in a well known 1960 letter "we need to understand that at the time of the War between the States the issue of secession had remained unresolved for more than 70 years. Men of probity, character, public standing and unquestioned loyalty, both North and South, had disagreed over this issue as a matter of principle from the day our Constitution was adopted."
No, RBG. Judah Benjamin did not choose the wrong side.
He believed in the Declaration of Independence and consent of the governed, like his fellow Southerners.
They were not about to let a seething, rabid Northern party, out only for its own wealth and power, rule over them.
The Republicans were the first sectional party in American history and, as Wendell Phillips said, were the party of the North pledged against the South. Their campaign documents included Hinton Helper's The Impending Crisis, which called for the throats of Southerners to be cut in the night by slave insurrections.
Southerners were already paying most of the taxes through high tariffs, bounties, subsidies, and monopolies for Northern businesses though most of the tax money was spent in the North.
Even after all that Republican hate, 60% of the country still voted against Abraham Lincoln.
This phrase from the Declaration of Independence was the most widely quoted in the secession debate in the South in the year prior to their seceding:
Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
There was absolutely no consent of the governed in the South to be ruled by a hateful, violent, Northern sectional party that celebrated a murdering terrorist like John Brown.
Southerners are the heroes of American history fighting for independence against an invasion by a region that outnumbered them four to one and outgunned them 100 to 1.
They fought until the bitter end, until most of the South was destroyed and 750,000 men were dead and over a million more maimed. The South was laid waste and did not recover for three-quarters of a century.
Yet, if they had it to do over, they would without hesitation, because the principles for which they contended - independence, self-government, and a country such as our American Founding Fathers had intended for us - were not invalidated at Appomattox.
Lt. Gen. Jubal A. Early stated the case to perfection when he said "the result of the war decided no question of principle":
In no sense can (the South) be said to have submitted any of their rights to the arbitrament of arms any more than the traveller on the highway submits his money to the arbitrament of arms between himself and the robber . . .
Back to RBG:
In 1853, Benjamin declined the nomination of President Millard Fillmore to become an Associate Justice of the United States Supreme Court. Just elected U.S. Senator from Louisiana, Benjamin preferred to retain his First Branch post. His choice suggests that the U.S. Supreme Court had not yet become the co-equal Branch it is today.
Had Benjamin accepted the Court post, his service likely would have been shorter than the time I have already served as a Justice. [RBG had served nine years when she made this speech]. In early 1861, in the wake of Louisiana's secession from the Union, Benjamin resigned the Senate seat for which he had forsaken the justiceship. He probably would have resigned a seat on the Court had he held one, as did his friend Associate Justice John Archibald Campbell of Alabama. (Campbell, incidentally, opposed secession and freed all his slaves on his appointment to the Supreme Court. But when hostilities broke out, he remained loyal to the South.)
Benjamin is perhaps best known in the United States for his stirring orations in the Senate on behalf of Southern interests, and for his service as Attorney General, Secretary of War, and finally Secretary of State in the cabinet of Jefferson Davis. After the Confederate surrender, Benjamin fled to England; en route, he narrowly survived several close encounters with victorious Union troops, and the forces of storm and rough seas. Benjamin's political ventures in the Senate and in the Confederacy were bracketed by two discrete but equally remarkable legal careers, the first in New Orleans, the second in Britain.
Having left Yale College without taking a degree, Benjamin came to New Orleans in 1832 and was called to the bar that same year. Although he struggled initially, his fame and fortune quickly grew large after the publication, in 1834, of A Digest of Reported Decisions of [the Supreme Court of the Late Territory of Orleans, and of] the Supreme Court of Louisiana. Benjamin's book treated comprehensively for the first time Louisiana's uniquely cosmopolitan and complex legal system, derived from Roman, Spanish, French, and English sources. Benjamin's flourishing practice and the public attention he garnered helped to propel his election by the Louisiana legislature to the United States Senate. (In pre-Seventeenth Amendment days, until 1913, Senators were chosen not directly by the People, but by the Legislatures of the several States.)
Benjamin's fortune plummeted with the defeat of the Confederacy. He arrived in England with little money and most of his property lost or confiscated. His wife and daughter settled in Paris, where they anticipated support from Benjamin in the comfortable style to which they were accustomed. He nevertheless turned down a promising business opportunity in the French capital, preferring to devote himself again to the practice of law, this time as a British barrister. He opted for a second career at the bar notwithstanding the requirement that he start over by enrolling as a student at an Inn of Court and completing a mandatory three-year apprenticeship before qualifying as a barrister. This, Benjamin's contemporaries reported, he did cheerfully, although he was doubtless relieved when the Inn of Court to which he belonged, Lincoln's Inn, determined to waive some of its requirements and admit him early.
Benjamin became a British barrister at age 55. His situation at that mature stage of life closely paralleled conditions of his youth. He was a newly-minted lawyer, with a struggling practice, but, he wrote to a friend, "as much interested in my profession as when I first commenced as a boy." Repeating his Louisiana progress, Benjamin made his reputation among his new peers by publication. Drawing on the knowledge of civilian systems gained during his practice in Louisiana, Benjamin produced a volume in England that came to be known as Benjamin on Sales. The book was a near-instant classic. Its author was much praised, and Benjamin passed the remainder of his days as a top earning, highly esteemed, mainly appel-late advocate. His voice was often heard in appeals to the House of Lords and the Privy Council.
Benjamin's biographer tells us that, "[h]owever desperate his case, Benjamin habitually addressed the court as if it were impossible for him to lose." This in-domitable cast of mind characterized both Benjamin's courtroom advocacy and his response to fortune's vicissitudes. He rose to the top of the legal profession twice in one lifetime, on two continents, beginning his first ascent as a raw youth and his second as a fugitive minister of a vanquished power. The London Times, in an obituary, described Judah Benjamin as a man with "that elastic resistance to evil fortune which preserved [his] ancestors through a succession of exiles and plunder-ings."
One more historical vignette before I go back to the briefs. For this account, my source is Seth P. Waxman, who served with distinction as our nation's Solicitor General from 1997 until January 2001.
Seth spoke of one of his predecessors as Solicitor General, Philip Perlman, who broke with tradition in the 1940s and successfully urged in a friend of the Court brief the unconstitutionality of racially restrictive covenants on real property. The case was Shelley v. Kramer, decided in 1948. The brief for the United States was written by four lawyers, all of them Jewish: Philip Elman, Oscar Davis, Hilbert Zarky, and Stanley Silverberg. But their names were deleted from the filed brief. That decision was made by Arnold Raum, the Solicitor General's principal assistant and himself a Jew. "It's bad enough," Raum said, "that Perlman's name has to be there." It wouldn't do, he thought, to make it so evident that the position of the United States was "put out by a bunch of Jews."
I do not think Jewish names would be hidden from view in briefs filed in today's Court. The security I feel is displayed in my chambers not only in my "Zedek" posters, but also by the large mezuzah on my door post, gift from the Shulamith School in Brooklyn. Thanks to the efforts of organizations of the kind represented here, Jews in the United States are no longer afraid about letting the world know who they are.
It is fitting, I hope you agree, in thanking you for honoring me with the Albert D. Chernin Award, to close with words I often use to describe my heritage:
I am a judge, born, raised, and proud of being a Jew. The demand for justice runs through the entirety of the Jewish history and Jewish tradition. I hope, in all the years I have the good fortune to serve on the bench of the Supreme Court of the United States, I will have the strength and courage to remain steadfast in the service of that demand.
SOURCE: Supreme Court of the United States, Ruth Bader Ginsburg, Associate Justice, "Remarks for Jewish Council for Public Affairs in appreciation for the Albert D. Chernin Award, February 18, 2002," https://www.supremecourt.gov/publicinfo/speeches/
sp_02-18-02.html, Accessed 9-28-20.