Drinks With Dead People

Raise a glass to history.

Category: 18th Century

James Jay’s Invisible Ink

Have a drink with: James Jay
They’ve given you a number and taken away your name

Ask him about: passing notes in class

Invisible Ink

With the recent news that Congressional Republicans have rolled back broadband protections on the harvest and sale of Internet search data by service providers, information on how to protect the privacy of your Internet existence is in high demand.

One of the words that most often comes up in this space: encryption. One of the cornerstones of modern information security is the ability to protect information in an algorithmic shield. But if you ask Revolutionary War spies about their information security program, they’d have one thing to tell you: scrambling is good, but hiding is better.

Continue reading

The Mainstream Media

Have a drink with: The Mainstream Media
Fake news. Sad!

Ask them about: thin-skinned Federalists

Today I’m over at the wonderful Historista blog with an essay on how the Trump administration’s media efforts to control news media echo the 1798 Sedition Act.

Go check it out!

Continue reading

The Electoral College

Have a drink with: The Electoral College
Neither elected, nor a college. Discuss.

Ask them about: Any December plans?

electoral_college_mg_2874

Most people hadn’t though much of the Electoral College before the contested Bush-Gore election in 2000, and many assumed that up to that point in American history it had mostly been a smooth, rubber-stamp affair. In truth, before 2000, seventeen elections ended in Presidents elected without a majority of the popular vote, and some scholars have figured out that minor vote shifts – a matter of 75,000 votes or fewer – could have changed the result in half of the elections for which data is available. (see detail here and here)*

So what did the founders mean when they set up this odd institution to elect the President? The Electoral College emerged from the Constitutional Convention of 1787, during which the founders were justifiably pissed off at having to spend their entire summer indoors in Philadelphia.

After long weeks of gridlock and argument over the structure of the Congress for our not-yet-unwrapped nation, there was no break in the fighting between small states and large. The Virginia Plan based the structure of Congress on state population, while the New Jersey Plan insisted each state have equal representation in the legislature. The Connecticut Plan won the day with the suggestion that one house be based on population and the other on equal allocation across states.

Then someone broke the news that they had to figure out how to elect the President, and it was late August by this point. Everyone could agree on one thing: we don’t want to repeat THAT whole mess again, plus we are running out of states after which to name proposals. Can we make the president thing easier? Yes.

Continue reading

David Bushnell

Have a drink with: David Bushnell
Damn the torpedoes.

Ask him about: The one that got away

bushnell_img_1929

Folks in Warrenton, Georgia were understandably sad when Doctor David Bush passed away in 1826. Single and in his eighties at the time of his death, the old man was a local institution: in more than thirty years in town Bush had practiced medicine, been active in local politics and even set up an area school. Folks knew the local doctor was quiet, civic-minded and accomplished.

So his secret identity may have come as a bit of a surprise.
Continue reading

Fanny Hill

Have a drink with: Fanny Hill
Grin grin, wink wink, say no more?

Ask her about: Sex and the (eighteenth-century) city

Fanny_Hill_2114

My friend Dan Klau, who writes a wonderful appellate law blog at Appealingly Brief, and who also just launched a government-accountability site at CT Good Governance – because transparency is very cool – recently posted this link about Ted Cruz’s advocacy as solicitor general in support of a Texas state law outlawing the sale or promotion of sex toys.

In 2007, Cruz and his team prepared a 76-page brief to the 5th Circuit, arguing to uphold the Texas statute and claiming in part that “‘any alleged right associated with obscene devices’ is not ‘deeply rooted in the Nation’s history and traditions.’”

I’ve got news for Ted: few things are a more consistent and popular part of the Nation’s history and traditions than alleging rights in the obscene.

Don’t believe me? Just ask the U.S. Supreme Court about Fanny Hill.

Continue reading

The All Writs Act

Have a drink with: The All Writs Act
Ain’t no party like a statutory party, because a statutory party
is subject to judicial review.

Don’t give it: your iPhone passcode

Judiciary_Act (23)

Beginning with the iOS8 version of its operating system, Apple has used encryption that makes it impossible for anyone but the user to access the passcode-protected information on their iPhone.  Yesterday, a California district court issued an order asking Apple to create a bypass by which the FBI could access information on a recovered iPhone linked to the December shootings in San Bernardino, citing the All Writs Act – a piece of legislation derived from the Judiciary Act of 1789 – as legal basis.

In an open letter Apple has opposed the order, citing the integrity of its customer relationships and the sanctity of customer information.

This is fascinating, and on the bleeding edge of technology, privacy, law and communication as they intersect in the 21st century. But in the meantime, wait: did that say 1789? Are we really going after an iPhone with a muzzle-loader?

Continue reading

The Gordon Rioters

Have a drink with: The Gordon Rioters
Angry Protestant mob, muse to Charles Dickens

Ask them about: Looting, pillaging, using the word “popery” without laughing. (Try it: popery popery popery.)

Gordon_Riots

“If they touch my work that’s a part of so many laws, what becomes of the laws in general, what becomes of the religion, what becomes of the country!”

You wouldn’t be wrong to wonder if this quote came out of Indiana in recent weeks, or perhaps Arkansas, in the face of debate over whether founding concepts of religious liberty could in fact literally be discussed over pizza. But in fact the quote is from Charles Dickens’ neglected novel Barnaby Rudge, in which a panicky hangman frets over religious freedom laws in 18th century England.

Dickens took his story from the events of June 1780, in which Protestants gathered with Lord George Gordon to march on Parliament and there present a petition for the repeal of Catholic relief legislation. The crowds grew and surged as they moved, and a week of “No Popery” violence broke out in London, requiring some 12,000 troops to restore peace.

Continue reading

Captain Kidd

Have a drink with: Captain William Kidd
Privateer, man of song and legend, unwitting pirate?

Ask him about: the tabloid trial of the (18th) century!

Captain_Kidd_08_14

William Kidd, a merchant captain and commissioned privateer, was tried and executed in 1701 for throwing away the king’s commission to turn pirate in the Indian Ocean. Not 25 years later, Captain Kidd was renowned in England as the man “whose publick Tryal and Execution here, rendered him the Subject of all Conversation, so that his Actions have been chanted about in Ballads.”*

To the end Kidd denied he’d been a pirate, and lamented a perfect storm of mutiny, betrayal and scapegoating.

So: birth of a pirate king, or a complete bus-chuck?

Continue reading