Happy Birthday to the 13th Amendment!

Dreamed of Abolition

Ditto

Made it Happen

Today is the 150th anniversary of the ratification of the 13th Amendment, which banned slavery and indentured servitude.  The Senate passed the Amendment on April 8, 1864, and the House of Representatives followed suit on January 31, 1865 after determined lobbying by President Lincoln and his administration.   Georgia ratified the Amendment on December 6, 1865, thereby providing the requisite three fourths of the states necessary to amend the Constitution.

Here is the text of the Amendment, in its entirety. 

Section 1

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction.

Section 2

Congress shall have power to enforce this article by appropriate legislation.

The Amendment implemented the abolitionist vision that George Wythe and St. George Tucker, both pictured above, had articulated more than half a century earlier.    Wythe, of course, occupied the Chair of Law and Police at William and Mary beginning in 1779 and was thus the nation's first law professor.  Wythe endorsed abolition and freed his own slaves.  As a judge on Virginia's Chancery Court, he announced in Hudgins v. Wright (1806) that the Virginia Declaration of Rights provided that all persons are free, regardless of race.    Tucker, one of Wythe's students, succeeded his teacher as William and Mary's second Chair of Law and Police in 1790 and echoed Wythe opposition to human bondage.  In 1796, Tucker authored a 116 page pamphlet addressed to the state legislature and entitled "A Dissertation on Slavery, With a Proposal for the Gradual Abolition of It, in the State of Virginia."  

Unfortunately the Virginia Legislature did not embrace Tucker's proposal, and an appellate court reversed Wythe's decision in Hudgins.  Instead, and tragically, it took the Civil War to end slavery.  During that war, Abraham Lincoln explained what was at stake in an April, 1864 speech.

"The World has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We call declare for liberty; but in using the same word we do not all mean the same thing.  With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men's labor.  Here are two, not only different, but incompatible things, called by the same name --- liberty.  And it follows that each of the things is, by the respective parties, called by two different and incompatible names --- liberty and tyranny."

Lincoln, of course, embraced the first definition, namely that "liberty" includes the right of each person to do as he or she pleases with himself or herself and with the product of his or her labor.  The Thirteenth Amendment finally made this definition a reality, at least as a matter of Constitutional Law, for all Americans.  If Virginia and the rest of the Nation had listened to Tucker and/or Wythe in 1796, 1806 or some time in between, America could have extended the blessings of liberty to all persons much sooner, eradiacted the evil of human bondage and avoided the cataclysm of civil war.

Liberty, Power and Hobby Lobby v. Sebelius

Imposers in Chief

 

 

Understood the Difference Between "Liberty" and "Power"

 

 

Ditto

 

A recent essay in Slate magazine by Dahlia Lithwick takes issues with the Tenth Circuit's decision in Hobby Lobby v. Sebelius, which invalidated, as applied to Hobby Lobby, Inc., regulations promulgated by Secretary of Health and Human Services (HHS) Kathleen Sebelius (pictured above with President Obama)  pursuant to the Affordable Care Act.  The regulations require corporations and other firms with fifty or more employees  to purchase various forms of contraception for their employees, even when purchasing such contraception violates the owners' unanimous and deeply held religious beliefs.  Like several other federal courts, the Tenth Circuit held that coercing the owners of Hobby Lobby, a closely-held corporation owned by five family members, to violate their religious beliefs in this manner contravened the Religious Freedom Restoration Act ("RFRA").   RFRA is a federal statute, the core of which prevents the Federal Government from  burdening religious liberty.    Passed after Employment Division v. Smith, 494 U.S. 872 (1990), which held that generally-applicable and neutral laws do not violate the Free Exercise Clause of the First Amendment, the statute prevents federal agencies from placing a substantial burden on the exercise of religion, even by means of a generally-applicable regulation, unless such a burden is the least restrictive means of accomplishing a compelling state interest.  In short, the statute reinstates, as against federal agencies, the standard articulated by Justices Brennan and Douglas, respectively, in opinions for the Court in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972), both of which Smith overruled.    See also Smith, 494 U.S. at 893-900  (O'Connor, J. concurring in the judgment) (endorsing the Sherbert test).   

 

Lithwick's essay repeatedly asserts that firms such as Hobby Lobby are claiming the right to impose their owners' religious beliefs on others by somehow barring their employees from using contraception.  For instance, the subtitle of the essay predicts that: "[t]he Supreme Court will soon decide if CEOs can impose their religious convictions on the people who work for them."    The piece also contends that  "[e]mployees who choose to use contraception (as 99 percent of us will do at some point) shouldn’t do so at the sufferance of their bosses."  The piece also asserts that, under the Tenth Circuit's approach:  "Constitutional protections of a single employer’s individual rights of conscience and belief become a bludgeon by which he [or she] can dictate the most intimate health decisions of his [or her] workers, whose own religious rights and constitutional freedoms become immaterial." (emphasis supplied)  In other words, Lithwick claims that Hobby Lobby's exercise of religious liberty reduces the liberty of some of its employees, with the result that the HHS regulations invalidated in Hobby Lobby actually promote liberty.

If in fact employers were coercively dictating their employees' religious beliefs,  regulations necessary to forbid such coercion would satisfy RFRA's compelling state interest test.  However, Lithwick's colorful rhetoric fundamentally mischaracterizes the question that was before the Tenth Circuit in Hobby Lobby.   For one thing, the court expressly disclaimed any reliance upon the Constitution, choosing instead to ground its decision on RFRA.  (See page 9, n. 2)    More fundamentally, Hobby Lobby's  owners do not seek to impose their beliefs on anyone or otherwise prevent their employees from using contraception.  Nor does the rationale of the Tenth Circuit's decision even remotely threaten such a result.  After all, Hobby Lobby has no power to conscript employees to work for it; nor does it have the power unilaterally to impose particular terms of employment.  Instead, its employees are members of a free society who voluntarily consent to their place and conditions of employment. (Lithwick provides no evidence that Hobby Lobby or other religiously-motivated firms have used fraud, unfair bargaining tactics or coercion to induce employees to work for them.)  In these circumstances, an employer's failure to cover a particular medical service or procedure does not "impose" the employer's convictions (religious or otherwise) on the employee any more than the enforcement of a standard deductible or co-pay is such an imposition.  Invoking such reasoning, an employer could also claim that an employee who declines to work extra hours for no pay "imposes" its will on the employer.  

 

To be sure, some employment agreements may appear less than voluntary.  For instance, a particular firm might be the only employer in a small, remote town.  Or, an employee may have remained so long at a particular firm that his or her skills may be useless elsewhere, with the result that he or she has no meaningful choice but to remain at the same employer.  In such cases the employer in question could have market power in the labor market, power that it could use to pay unduly low wages or foist on employees terms of employment that would not survive in a more competitive environment.  Even in such circumstances, however, a failure to pay for contraception would not "impose" the firm's beliefs upon its employees.   After all, failure to pay for someone else's contraception is just that; a failure to pay.  Hobby Lobby has not sought to prevent employees from using their own incomes to purchase contraception, or anything else for that matter.  Indeed, firms that do not  provide such coverage will incur slightly lower costs, realize a slightly larger net marginal product from each employee and thus pay slightly higher wages, wages that employees can use to purchase whatever they wish, including contraception.  (This is true, it should be noted, even if a firm possesses market power.  Such firms cannot both use the same power to reduce wages and impose inferior benefits.  They must choose one or the other.)  Hobby Lobby's employees remain perfectly free to purchase their own contraception.  Treating such employees as victims of coercive interference with their own liberty, religious or otherwise, stretches such concepts well beyond any useful meaning.  One might just as well claim that a Progressive employer "dictates" employees' beliefs and reduces their liberty when he or she refuses to provide free parking because he or she has a religiously-grounded objection to global climate change and commuting by car. 

Indeed, Lithwick's claim of religious coercion proves far too much.  After all, if Hobby Lobby is dictating its employees' beliefs, then so too is every firm and individual that declines, because of religious beliefs, to purchase contraception (or anything else) for someone else.  Assume for a moment that some pharmacists provide free contraception to their customers, perhaps as a loss leader, to lure them away from competing pharmacists.  Assume further that other pharmacists decline to adopt such a strategy because of their religious beliefs.  Under Lithwick's reasoning, those pharmacists who decline to subsidize their customers' use of contraceptives are "dictating" these customers' beliefs and interfering with their liberty, even though the customers remain perfectly free (as do Hobby Lobby's employees) to purchase contraceptives at market prices.  Such a claim of coercion refutes itself and incorrectly equates individual liberty with a legal right to extract financial resources from others. 

Lithwick's argument exemplifies what F.A. Hayek once characterized as the unfortunate tendency to redefine liberty as an individual's "power to do certain things," or "the effective power to do what we want," without external constraint.  See  Friedrich H. Hayek, The Constitution of Liberty, 16-20 (1960). Redefined in this way, such "positive liberty" often consists of the power to coerce others to subsidize the individual's chosen activities, whether parking or contraception.  This redefinition deprives the term "liberty" of any useful meaning, transforming normative questions about the proper scope of liberty into a policy choice between the wants and desires of competing individuals, each of whom can claim that a choice in his or her favor enhances (his or her) "liberty."  Even slave owners could (and did) claim that slavery enhanced their liberty, by increasing the slave owner's material welfare at the tragic expense of those unjustly enslaved.  Lincoln, of course, properly rejected this definition of liberty and the concomitant equation of "liberty" with power over others, calling such "liberty" the alleged right of "some men to do what they please with other men, and the product of their labor."  (See Address At A Baltimore Sanitary Fair, April  1864).  He instead preferred the right "of each man to do as he pleases with himself, and the product of his labor."

No doubt Lithwick, too, would sincerely reject the slaveowners' claim, although without invoking Lincoln's straightforward distinction between negative and positive liberty.  Still, her argument diverts attention from the real source of coercion in this context.  After all, as the Tenth Circuit held, the regulationsc hallenged in Hobby Lobby coerce some employers to violate their own religious beliefs.  That is, it is the Obama Administration, and not Hobby Lobby, that seeks to impose its views on others.  Legislative imposition of views is not ipso facto inappropriate; by its nature, laws "impose" some view on others.  However, regulations that require individuals to violate their sincerely held religious beliefs are prima facie violations of RFRA.  As shown above, such regulations do not enhance anyone's liberty, but instead extinguish it.  Absent identification of some other compelling state interest, RFRA's protection for liberty must prevail.

Should The United States Replace Seal Teams With Grand Juries?

Not a Grand Jury

Could Have Indicted Confederate Soldiers in 1861; Chose A Different Course

Over at the Atlantic, Conor Friedersdorf decries the lack of outrage over the Obama Administration's "secret" decision to assasinate American citizens abroad, including Anwar al-Awlaki, who have allied themselves with Al Qaeda and are thus levying war against the United States. Invoking the U.S. Constitution and an unsupported ACLU memo on International law, Friedersdorf seems to argue that the sole remedy against Americans who join foreign armies seeking to kill Americans is indictment by a Grand Jury and trial in civilian courts for Treason. Friedersdorf also asserts that, regardless whether an individual is an American Citizen, it violates International Law to launch an armed attack against a foreign enemy unless that enemy is in an "armed conflict zone." For the reasons outlined below, Friedersdorf and the ACLU that he is channeling are way off base.

1. The Constitution defines treason to include "levying war against [the United States]." Moreover, the Constitution plainly contemplates the use of military force against American citizens suspected of such treason, as it authorizes Congress to "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Congress so provides by authorizing the President to call forth the militia when needed to meet these emergencies, something it has done by statute from the earliest days of the Republic. Moreover, nothing in the Constitution prevents the President from employing non-militia armed forces to put down a rebellion.

Indeed, if Friedersdorf is correct, Abraham Lincoln erred when he resisted the South's effort to secede in 1861. That is, under Friedersdorf's logic, Lincoln should have abjured military force against the Southern rebellion and instead sought indictments against the 10s of thousands of Confederate soldiers --- all American citizens according to Lincoln --- who had taken arms against the union and, I suppose, asked them to turn themselves in. Fortunately Lincoln took a different approach.

2. Friedersdorf draws a distinction between "battlefields," on the one hand, and more pacific regions, on the other. The latter are, in his view, immune from the use of military force, even when such force is employed against individuals who have declared war on the United States. He quotes a late April, 2011 ACLU Letter to President Obama for the proposition that International Law prevents the use of force against enemy combatants, whether or not they are U.S. Citizens, unless those combatants are in "armed comflict zones." That letter, it should be noted, does not limit itself to attacks on U.S. citizens, but instead decries such attacks on U.S. citizens "and others." The letter also relies on ipse dixit, that is, cites no legal authority of any sort, international or otherwise, for the proposition that it baldly asserts. (Apparently the ACLU expects the President and/or his staff to conduct the ACLU's research for it, locating legal authorities, if there are any, to support the ACLU's assertions.) Nor does the letter attempt to define the term "armed conflict zone," or explain why International Law would adopt a rule that would encourage combatants to leave "armed conflict zones" and set up shop in peaceful regions.

3. The Congress of the United States apparently has a different view of International Law. On September 18, 2011 it passed the Authorization for use of Military Force, empowering the President to employ military force against Al Qaeda and those who support it. The AUMF contains no limitation on where the President may employ such force. Nor does it purport to prevent the President from using such force outside "armed conflict zones." Congress passed the AUMF after observing the consequences of taking an ACLU-like "law enforcement" approach to Al Qaeda, even after that organization had committed several acts of War against the United States, including the 1993 bombing of the World Trade Center and expressly declared war against the United States in 1998. (See The Report of the 9-11 Commission, beginning on page 47; id. at 59-62 ("War on the United States 1992-1996")). The 1998 Grand Jury indictment of Bin Laden can be found here. The indictment was apparently ineffective.

4. Even if a treaty or other rule of international law purported to implement the approach sought by the ACLU, Congress could, if it wished, abrogate that rule as a matter of domestic Constitutional Law. That is, the Supreme Court has repeated recognized the so-called "last in time rule," under which a statute trumps a previously-passed treaty. As between the AUMF and any purported rule of international law, then, the AUMF, which expressly authorizes the unrestricted use of military force against Al Qaeda, would prevail.

5. The rule proposed by Friedersdorf and ACLU would produce odd results, to say the least. Imagine, for instance, if Al Qaeda were to take over Iran and move thousands of fighters there. The country would not be a "zone of armed conflict." Thus, under the Friedersdorf/ACLU approach, America and her allies would have to stand idly by and do nothing as this enemy gained strength. (The only exception, according to the ACLU, would be for an imminent threat; one suspects that the victims of such a "threat" would only become aware of it after it was too late.) Of course, the United States could issue a warrant for the arrest of various members of Al Qaeda, but one doubts that those indicted would surrender themselves to U.S. authorities or that the FBI could serve such warrants without great risk.

6. Indeed, the Friedersdorf/ACLU logic calls into question the recent raid that killed Osama Bin Laden, to say the least. The sleepy suburb of Abbottabad, Pakistan is no more a "zone of armed conflict" than is Yemen --- the suspected whereabouts of Anwar al-Awaki. Nor did Bin Laden on May 1 pose any qreater threat to the United States than Anwar al-Awaki. According to the ACLU, however, the United States cannot use military force against citizens or non-citizens outside a zone of armed conflict. We should all look forward to the ACLU's effort to explain its views on the legality of the recent raid in Abbottabad and how, absent such a raid, we could have eliminated Mr. Bin Laden.

7. Finally, it should be noted that Friedersdorf relies on two make weight arguments designed to make his position apparently stronger than it really is. First, he frames his argument around the President's effort to attack American citizens. However, the arguments he derives from international law apply with equal force to attacks on citizens and non-citizens alike. Second, Friedersdorf decries the "secrecy" of President Obama's order. At the same time, one doubts that Friedersdorf and others opposed to President Obama's order would feel better if the order were published in the New York Times. "At bottom" Friedersdorf is apparently arguing that, American citizen or not, an enemy's presence outside a zone of armed conflict should immunize him or her from military action, until of course that enemy chooses, at his leisure, to attack us.

Does The President Have the Courage of His (Purported) Constitutional Convictions?

Had the Courage of His Constitutional Convictions

?????????

Earlier today, Attorney General Eric Holder announced that the Obama Administration will no longer defend Section 3 of the Defense of Marriage Act. Here is a portion of his statement.

"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur in the President's determination."

In other words, both President Obama and Attorney General Holder In other words, both President Obama and Attorney General Holder believe that DOMA's discrimination against gays and lesbians is more analogous to discrimination based on race or religion and thus subject to heightened constitutional scrutiny than, say, discrimination based on age, which is subject only to minimal scrutiny. Because the President and Attorney General cannot imagine a strong government interest justifying such discrimination, they will refuse to defend the law they have enforced and then defended for the past two years.

At the same time, Attorney General Holder's memo states that the Executive Branch will continue to enforce DOMA, that is, will continue to enage in the very discrimination that the President says violates the Constitution. As Holder put it: "Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President informs me that the Executive Branch will continue to enforce the law."



While some are praising his decision, others are criticizing the President for declining to defend a statute passed by Congress, particularly a statute that the President has enforced and defended for the first half of his Administration. For instance, Orin Kerr at the Volokh Conspiracy has suggested that the failure to enforce the statute is an "Executive Power Grab." He also also noted that, if the current President can refuse to defend DOMA, then a future President, perhaps a Republican, could decline to defend the coercive individual mandate contained in the recent health reform legislation, if that President believes there are no reasonable constitutional arguments in defense of that mandate. (See Kerr's post making this point here.)



My own take is a little different from that of Professor Kerr and other critics of President Obama's action. That is, unlike Professor Kerr, who believes the President has gone too far in using his office to further his constitutional vision, my own view is that he has not gone far enough.


As previously explained on this Blog, Presidents may decline to enforce statutes they believe to be unconstitutional, without waiting for a court to pass on the enactment. Indeed, at the Pennsylvania Ratifying Convention, James Wilson, a prominent founder, justified judicial review by arguing that the President could decline to enforce an unconstitutional statute and that, by analogy, judges could also review statutes to determine their constitutionality. James Madison explained that each Department or Branch of government had to interpret the Constitution for itself when carrying out the duties that the Constitution assigns to them, including, for instance, the execution of statutes. Moreover, students of Constitutional Law will remember Myers v. United States, which arose because President Woodrow Wilson fired and stopped paying a postmaster, contrary to a statute that required Advice and Consent of the Senate, which Wilson did not even attempt to obtain. (The Supreme Court upheld Wilson's view that the requirement of Senatorial consent was unconstitutional, without questioning his decision to fire the postmaster.) And, of course, in his first innaugural address, President Lincoln, pictured above, famously announced, as he had argued in the Lincoln-Douglas debates, that he did not consider himself bound by the Supreme Court's decision in Dred Scott v. Sanford, except with respect to the actual parties in the case. Thus, Lincoln ordered the Executive Branch to grant patents and passports to qualified African-Americans, even though Dred Scott had held that African-Americans were not citizens and thus, by implication, not entitled to such statutory benefits, because he (Lincoln) believed that Dred Scott was simply wrong.

Thus, President Obama's approach seems internally incoherent. On the one hand, he claims that he will not defend DOMA because it is unconstitutional, indeed, so unconstitutional that there are no reasonable arguments in support of the statute. At the same time, the President and his Attorney General both assert that they will continue to enforce what they believe to be a blatantly unconstitutional law. Huh? If DOMA really is so blatantly unconstitutional, because it works unconstitutional discrimination, analogous to discrimination based on race or religion, should not the President simply refuse to enforce DOMA altogether? Imagine if, instead of classifying individuals based upon their sexual orientation, DOMA classified individuals based on race or religion and, for instance, denied federal benefits to Catholics or Asian-Americans lawfully married in their state of residence. Would President Obama and Attorney General Holder enforce such a statute, forcing affected indiviuals to challenge it in court? Certainly President Lincoln would not have enforced an enactment he believed to be unconstitutional, and I hope President Obama and Attorney General Holder would follow Lincoln's lead in such a situation. Why President Obama nonetheless continues to enforce DOMA, given his purported belief that the statute is plainly unconstitutional, is perplexing and causes this blogger to wonder whether President Obama is as certain about his constitutional views on the subject as Attorney General Holder's statement suggests.

President Lincoln's 1863 Thanksgiving Proclamation

Washington, D.C. October 3, 1863
By the President of the United States of America.
A Proclamation.

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom.

No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People.

I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union.

In testimony whereof, I have hereunto set my hand and caused the Seal of the United States to be affixed.

Done at the City of Washington, this Third day of October, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the Unites States the Eighty-eighth.

By the President: Abraham Lincoln

Seven Score and Six Years Ago . . .

Today is the 146th Anniversary of Abraham Lincoln's Gettysburg Address. Here is the entire text:

Fourscore and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting-place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead who struggled here have consecrated it far above our poor power to add or detract. The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.

The speech, preceded by a two hour oration by Edward Everett, lasted just over two minutes.