Judge Robert H. Bork, R.I.P.

I was in Los Angles in late October 1987 to give a speech when I stepped into the hotel’s television lobby and saw the special news report. Reagan’s nominee for the Supreme Court, Robert Bork, had been rejected by a jaw-dropping Senate vote of 58 to 42. Even after being viciously treated in his Senate hearings, I naively thought his trashing was mostly posturing for the folks back home (the 1988 election was the following fall.) In retrospect, I now believe the current incivility in our political process can be traced in a straight line from the Bork interrogation.

The smear campaign began only 45 minutes after Reagan’s nomination of Robert Bork was announced. The virtuous Ted Kennedy strode to the Senate floor to deliver an obviously planned speech that curiously aired nationally, a rarity for impromptu senate speeches. Kennedy’s diatribe became known as the “Robert Bork’s America” speech. In part it alleged,

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.

A briefing book on the Bork record had been prepared for Joe Biden, who publicly announced his opposition to the nominee even though he would chair the Senate Judiciary Committee hearings. Judge Bork later wrote that the briefing book "so thoroughly misrepresented [my] plain record that it easily qualifies as world class in the category of scurrility." Biden delayed the committee hearings an unprecedented 76 days so that, as Kennedy later revealed, the anti-Bork media campaign would have time to gain momentum.

Actor Gregory Peck narrated a television spot that labeled Bork an extremist. For only the third time in its seven-decade history the ACLU weighed in to voice its opposition to a Supreme Court nominee. A biased Harris poll was so patently slanted to produce negative results that it unsurprisingly found 57% of Americans opposed the Bork nomination. Predictably the mainstream media joined the tag team match to assassinate the nominee’s character. It was later revealed that Bork’s trash cans were combed looking for evidence of scandal and even his video rentals were investigated hoping he had a penchant for pornography. Instead, investigators and reporters found his penchant was for old Fred Astaire and John Wayne movies. The anti-Bork campaign was such a well-organized blitzkrieg that it paralyzed the Reagan White House, which inexcusably made no response in defense of its nominee for over two and a half months.

It’s hard to believe in today’s political climate that nominations by the President for the Supreme Court were once respectfully conducted. Some hearings lasted only minutes. The presumption of fitness for judicial office and the deference to the President to appoint a person he wanted meant the Senate’s “advise and consent” role was administered with a light touch.

Eight years before the Bork nomination, Biden had hypocritically scolded Republican senators who questioned the fitness of Carter’s nomination of Abner Mikva to an appeals court because of Mikva’s record of judicial activism. Biden argued “I think that the advise and consent responsibility of the Senate does not permit us to deprive the President of the United States from being able to appoint that person or persons who have a particular point of view unless it can be shown that their temperament does not fit the job.” Kennedy the Righteous had taken the Senate floor on that occasion too, but in this instance to defend Mikva’s nomination: “If strong political views were a disqualifying factor from serving on the federal bench, then all of us here today – and every man and women who has ever served in either house of Congress, or held political office – would be disqualified.”  Kennedy had argued a similar defense for Thurgood Marshall’s nomination in 1967 to the Supreme Court. 

Of course, those high-minded arguments became moot upon the nomination of Robert Bork, whose name would become a verb after the trashing it received from Kennedy, Biden, Arlen Specter, and Bob Packwood (who was later forced out of the Senate in a sex scandal.)

There have been 112 justices who served on the Supreme Court since the beginning of the Republic. Judge Bork was only the 12^th to be rejected by the Senate. His America was not the one deceitfully described by Kennedy. Robert Bork’s America was one in which elite judges would not have the power to remake American values. During his hearings he promised to practice apolitical jurisprudence based on what the Constitution explicitly said, not what it meant to an evolving modern mind.

When he was still in academia, Bork had the audacity to challenge the judicial activism of the Warren and Burger Courts. His writings argued, for example, that the Constitution articulates no general right to privacy – the foundation of the Roe v. Wade decision. He published the intellectual framework for originalism which influenced the judicial philosophy of Justices Antonin Scalia and Clarence Thomas. Originalism meant justices were obliged to interpret the Constitution in terms of what it meant at the time of its adoption and avoid willful discoveries and interpretations that are not expressly contained in its wording. His foes knew that putting an originalist like Bork on the Supreme Court would enable him to influence the jurisprudence of eight other justices and they were determined to prevent that. In a sense, Robert Bork was rejected because he took the law too seriously.

Bork’s judicial integrity showed through when responding to Senator Dennis DeConcini’s gotcha’ questions in the hearings. When DeConcini asked Judge Bork for his understanding of the Ninth Amendment, which says,

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Bork said he didn’t know what the Amendment was saying. He could only guess at its meaning and therefore would never rely on it to make a decision. DeConcini pressed harder probably believing that doing so would not turn out well for Judge Bork. Instead he responded brilliantly;

I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says “Congress shall make no” and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.

Most lawmakers in the House and Senate are constitutional illiterates. Certainly none then or now had an intellect that matched Robert Bork. His responses to their questions were forthright, not the timid, safe, non-committal responses nominees give today. No doubt he realized the risk he was taking by instructing his interrogators on the fine points of his constitutional interpretation. But in doing so, he ran intellectual rings around them.

In a book he published years later, he elaborated the answer he’d given DeConcini:

The judge who cannot make out the meaning of a provision is in exactly the same circumstance as a judge who has no Constitution to work with. There being nothing to work with, the judge should refrain from working. A provision whose meaning cannot be ascertained is precisely like a provision that is written in Sanskrit or is obliterated past deciphering by an ink blot. No judge is entitled to interpret an ink blot on the ground that there must be something under it.

Bork was a Phi Beta Kappa at the University of Chicago law school, he had been a Marine, a member of a prominent Chicago law firm, and a longtime professor of law at Yale Law School. His students had included Bill Clinton, Hillary Rodham, Jerry Brown, Gary Hart, and Anita Hill, among others, although he said of these, “They weren’t my students. They were in the room. But they weren’t my students.”

Professor Bork was given a leave of absence from Yale to serve as President Nixon’s Solicitor General of the United States. When the Watergate scandal erupted and Special Prosecutor Archibald Cox asked Nixon for his Oval Office tapes, Nixon ordered Attorney General Elliot Richardson to fire him. Richardson refused and resigned. Deputy AG William Ruckelshaus was ordered to do the deed and he refused and resigned. This made Bork Acting Attorney General in Nixon’s infamous Saturday Night Massacre. When Bork contemplated resigning Richardson and Ruckelshaus talked him out of it, fearful that the entire leadership structure of the Justice Department would collapse. They advised Bork to fire Cox and hire another Special Prosecutor. Bork hired Leon Jaworski who completed the investigation with integrity, forcing Nixon from office. Despite this outcome, Bork had sown the wind by firing Cox and would reap the whirlwind, when his enemies vilified him for being Nixon’s hatchet man.

Acting Attorney General Bork, in the meantime, negotiated a plea agreement by which then Vice President Spiro Agnew would plead nolo contendere to criminal wrongdoing and resign, bringing Gerald Ford to the vice-presidency. With Nixon’s resignation, Ford became President. Thus Bork resolved a complicated mess – avoiding a constitutional crisis along the way – which put Ford in the White House. Ford showed his gratitude by skipping over Bork when a Supreme Court opening occurred, nominating instead John Paul Stevens, a “safe” candidate.

With the election of Jimmy Carter, Bork returned to Yale and teaching until Reagan was elected and tapped him for the US Court of Appeals for the District of Columbia. His judicial brilliance on that court attracted Reagan to nominate him to replace retiring Supreme Court Justice Lewis Powell.

After the toxic Senate hearings lesser men might have withdrawn in bitterness and left public life behind. Not Judge Bork. He resigned from the Court of Appeals to devote himself to a career of writing and intellectual development. Rather than exiling him to ignominy, his conduct during the Senate witch hunt caused him to become more admired, if not famous. He produced The Tempting of America: The Political Seduction of the Law, a best seller that confronted his rejection by the Senate head-on and warned against the erosion by politics in constitutional interpretations. The remedy for resisting this temptation, he wrote, is an unyielding commitment to the theory of original understanding, leaving the elective legislative processes to resolve matters on which the Constitution or its framers are silent or ambiguous.

Two books later, he had expanded his commentary to the cultural malaise in American society with the publication of Slouching Towards Gomorrah: Modern Liberalism and American Decline. The title is descriptive of its thesis – that liberalism and the rise of The Left had introduced the corrosive tolerance of abortion, media violence, sexualization, assisted suicide, affirmative action, and a decline in religious discipline into society.

In one of his last books, A Time to Speak: Selected Writings and Arguments, Judge Bork included an essay entitled “Thomas More for Our Season.” It drew parallels between now and then – then being the time Thomas More lived, 1478-1535 – to illustrate what happens when law becomes politicized. Thomas More was a deeply religious man. He was also a lawyer.

Robert Bolt’s play, A Man for All Seasons, created a dialog between More and his future son-in-law, William Roper which Bork used to demonstrate his own understanding of the law.

Roper urges More, who is the Lord High Chancellor, to arrest Richard Rich, whose perjury will eventually lead to More's execution. More answers that Rich has broken no law, "And go he should, if he were the Devil himself, until he broke the law!"

Roper protests that Rich is a bad man. Being a bad man is not against the law, More retorted. “But there is God’s law,” Roper appeals.

More: Then God can arrest him…. The law, Roper, the law. I know what’s legal not what’s right. And I’ll stick to what’s legal… I’m not God. The currents and eddies of right and wrong, which you find such plain sailing, I can’t navigate. I’m no voyager. But in the thickets of the law, oh, there I’m a forester.

Roper: So, now you give the Devil the benefit of law!  

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? …This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down… d’you really think you could stand upright in the winds that would blow then?… Yes, I’d give the Devil benefit of the law for my own safety’s sake.

Given his gloomy outlook for the future of constitutional law and American society, Judge Bork was once asked if there was any aspect of our culture for which he was hopeful. “Absolutely,” he replied without hesitation …”the martini.”  Robert Bork knew a lot about martinis, their history, their appeal, and the proper way to make one.  A Judge Bork martini was very dry – vermouth and ice were first shaken together before pouring out the vermouth – and Bombay Sapphire gin was added to the vermouth-coated ice and shaken until chilled.

The final product was served straight up with a twist of lemon peel – not with a “barbaric” olive – and certainly never served “on the rocks.” Bork recalled a dinner guest ordering a martini “on the rocks” and thinking, “Oh the horror, the horror!” Insofar as “on the rocks” inferred a state of bankruptcy, it was a perfect description for good gin being diluted by the minute from melting ice.

The final essay in his book, A Time to Speak, is entitled “Martini’s Founding Fathers: Original Intent Debatable.” This tongue-in-cheek masterpiece, published initially in the Wall Street Journal 18 years after running the Senate gauntlet, shows the good humor Bork still retained as he applied his originalist legal philosophy to critique an article written by Eric Felten about dry martinis. It’s a not-so-subtle lampoon aimed at advocates of an elastic interpretation of the Constitution.

What counts in mixology is the “original understanding” of the martini’s essence by those who first consumed it. The essence remains unaltered but allows proportions to evolve as circumstances change. Mr. Felton’s “near-perfect martini” is the same in principle as the “original-understanding martini” and therefore its legitimate descendant. Such latter-day travesties as the chocolate martini and raspberry martini, on the other hand, are the work of activist bartenders.

Mr. Felton lapses into heresy only once. He prefers the olive to the lemon peel because the former is a “snack.” Dropping a snack into a classic drink is like garnishing filet mignon with ketchup. The correct response when offered an olive is, “When I want a salad, I’ll ask for it.”

Notwithstanding the historic rejection of his fitness to serve on the highest court of the land, Judge Bork had the last laugh.  Kennedy, his principal tormentor, went to his grave a morbidly obese alcoholic; a pathetic laughing stock whose outbreaks of sanctimony on the Senate floor could never wash away his sins at Chappaquiddick. Bork, in contrast, went from one intellectual triumph to another, leaving behind a written intellectual legacy that will be read for generations.

Robert Bork died on December 19 in his 85^th year from heart disease and complications of COPD.

Broken Hearts at Wounded Knee

With the close of the Revolutionary War, waves of European settlers pressed against the western American frontier seeking room to pursue their agrarian lifestyle. Vast quantities of cleared land were required. Therefore justified by belief in their Manifest Destiny to settle America from coast to coast, these settlers set out to make history from east to west. The history of resistance by the indigenous population was made in the opposite direction.

One hundred and twenty-two years ago this week, their two histories collided for the final time astride Wounded Knee Creek in South Dakota. Arguably the saddest chapter was written in the struggle of two nations to live independent of each other in the same country.

This is that story.

At one time the Sioux nation in confederation with the Cheyennes and Arapahos controlled the area from the Rockies on the west to the Missouri River in the central Dakotas on the east and from the Yellowstone River on the north to the Arkansas River on the south. Through this vast area streamed wagon trains and railroads during the last half of the 19^th century. While many settlers and adventurers were headed to destinations west of Sioux territory, more than a few settled, prospected, trapped, and hunted on Sioux land. Their frequent clashes brought death to both sides and disease to the Indian population who lacked the immunity the whites had developed from centuries of urban living.

Numbering an estimated 26,000 even after two centuries of European encroachment, the seven main tribes of the Sioux nation created the plains horse culture which enabled them to control their large domain. Thousands of horses and millions of buffalo made the Sioux the richest and largest Indian nation in North America and certainly the wildest, living as they did on the buffalo plains.

The period from 1860 to 1890, however, became the Gotterdammerung of the Sioux culture. In 1868 the aim of US frontier policy was to bring all of the plains Indians under the control of the federal government. Accordingly a treaty was negotiated with the Sioux living west of the Missouri – i.e. west of the central Dakotas – to renounce the claims to most of their 450,000 square mile territory and live on a 16,000 square mile reservation comprising South Dakota west of the Missouri River – about half of the state. Agents were appointed and agencies were established for their governance. Military posts were positioned to create an archipelago of armed forces in the territory. Railroads were to be allowed to cross the reservation. The promise of annuity payments, food rations, cows, physicians, farmers, teachers, and other inducements were to help these prairie dwellers and hunters transition to the white man’s civilization. Thus in one stroke the Sioux were reduced from a free nation to dependent wards of a foreign government.

Even though it was less than what they previously possessed, the land set aside for the Sioux would probably have been sufficient for their numbers if the buffalo had remained and the white man kept away. But times changed rapidly. The railroads enabled tens of thousands of hunters and emigrants to invade the plains on which the Sioux were given exclusive hunting rights beyond their reservation. In a few years the buffalo and native game were hunted by skinners to virtual extinction, eliminating the major food supply of the Sioux. When gold was discovered by illegal prospecting in the Black Hills – property within the reservation boundaries – thousands of miners and law-breakers steamed in despite their treaty violation and Indian protests. The Sioux were forced to renegotiate their land treaty, losing a third of their reservation, including the Black Hills.

Broken treaties and the loss of their last hunting grounds precipitated the Custer wars, which culminated with the massacre of almost the entire 7^th Cavalry Regiment in 1876. Six years later, the Sioux were told their reservation would be further broken up into five smaller reservations – Pine Ridge, Rosebud, Lower Brulé, Cheyenne River, and Standing Rock – mostly non-contiguous. In the process, the Sioux lost the Bad Lands, a 60-mile strip which separated the Pine Ridge and Rosebud reservations on the south from the Cheyenne River and Standing Rock reservations on the north.

Within eight years of the Little Big Horn battle, the buffalo were entirely gone and the Sioux were dependent on government beef rations. Their lives, which for centuries had been organized around plains hunting, now became lives of idleness on the reservation and humiliating dependency. Between 1886 and 1889 Congress cut the Pine Ridge beef ration from eight million pounds to four million pounds and substituted Texas beef herds, which would lose 200 pounds of body flesh during the Dakota winters, instead of the agreed upon northern beef herds, which wintered better. Similar reductions were made on the other reservations.

However, unknown to the eastern Sioux tribes of Dakota, a hopeful great awakening was developing in the west among the Paiute tribe in the territories of Oregon and Washington. Their principal medicine man foretold an Indian millennium in which the Indian ancestors of all tribes and nations would be resurrected, the game and buffalo would be restored, Indians would be forever young, and the Europeans would be driven from Indian ancestral lands.

The apocalyptic Paiute who received this revelation from God, the Great Father, was called Wovoka, a man who alternately referred to himself as the Messiah and the Christ. He claimed to have originally come to earth to bring the white man to repentance from his evil ways, but Wovoka the Messiah had been rejected and indeed crucified by the whites, causing him to return to God. He would now be the Messiah to Indians only. He preached a non-violent lifestyle, exhorting Indians to live peaceful lives, abjure from lying, theft, and alcohol. God, Wovoka prophesied, would eliminate the white man in a flood whose precursor would be an earthquake, signaling Indians to climb to the tops of mountains until the flood recessed.

In order to bring about his apocalyptic millennium, Wovoka instructed all Indians to perform a Ghost Dance in accordance with a method he demonstrated to his early disciples. At the center of the dance circle a sacred pole would be erected. Four being a sacred number in Indian culture, they were to dance continuously throughout four nights and four days, repeating this ritual often in order to hurry the resurrection of their ancestors. The Dance of the Ghosts would also enable them to see some of their dead ancestors even before the final Indian eschaton. Wovoka prophesied that would occur in 1891 with the greening of the spring grasses on the prairie. Indeed other Paiute medicine men claimed to see ancestral ghosts at the edge of the dance circle when the Ghost Dance was performed, and entranced dancers told of encounters with long dead relatives after completing a dance.

Predictably, the news of the Ghost Dance religion spread across the country from tribe to tribe until it reached the ears of Sitting Bull, the most prestigious Sioux medicine man, and Red Cloud, their most famous chief. To confirm the veracity of the Ghost Dance religion, its prophet Wovoka, and to learn the dance ritual, Sitting Bull, Red Cloud, and other chiefs selected a legation of minor chiefs from several reservations and sent them west to find the Messiah. Remarkably, the delegates traveled west by train and were met at the terminus by Indians who said they were expecting them. Their hosts took them to the base of the Sierras where after two nights of waiting, they met Wovoka around a night camp fire. He told them he had seen them coming in a dream, in fact he claimed he had called them to come. The Sioux visitors saw the scars of crucifixion on his wrists but since he wore moccasins, they couldn’t see his feet. Throughout their visit to Wovoka, the Sioux delegation saw other representatives from many tribes who came and went after confirming the existence of the Messiah and learning his Ghost Dance.

The Sioux remained with Wovoka’s Paiutes through the winter. When Wovoka bade them goodbye in the spring he told them that on their return trip they would encounter a buffalo herd – something that would have been almost unheard of at that time. They were to kill one animal, leaving its head, tail, and feet on the prairie so the buffalo could come to life again. Not only did they encounter a rare herd, but also following Wovoka’s instructions to leave parts of the animal, they claimed to have seen a restored buffalo and the parts were gone.

Moreover, on their return trip, the Sioux delegates claimed to have encountered warriors who had been killed in the Indian wars as long ago as 40 years.

All of these wondrous things were reported to Sitting Bull and Red Cloud upon their return in April 1890. The delegates said Wovoka made the animals speak and made distant objects appear near. A traveler who wearied of his journey would wake up closer to his destination than he had been when he fell asleep the previous night. Their individual accounts of all they had seen were consistent, and having been selected for their character and reputations, they had no motive to collaborate in a lie.

Two of the delegates, however, Short Bull and Kicking Bear, were Sioux conservatives opposed to the white’s policy to civilize them and force abandonment of Indian ways. They supported the Ghost Dance religion and belief in its apocalyptic Indian millennium but not its philosophy of non-violence. They introduced into the dance special Ghost Shirt which, they claimed, would make the wearers impervious to the bullets of whites. Sitting Bull and Red Cloud, conservatives themselves, agreed with the innovations and ordered the dances to begin among all of the Sioux on each reservation.

Local white residents of South Dakota who witnessed the frenzied Dance of the Ghosts as performed by the Sioux became alarmed that it was a prelude to an outbreak of violence. They insisted that the agents stop its practice. Fatefully, after four Republican administrations Grover Cleveland, a Democrat, had been elected president in 1885 – about the time the Ghost Dance religion began to sweep the Indian tribes. Experienced Indian agents appointed and retained by Republican presidents had almost entirely been replaced by Cleveland with inexperienced agents. Not only were those agents alarmed by the Ghost Dance, especially among the Sioux, but also they had no relationship with the chiefs, medicine men, and sub-chiefs as their predecessors had which would have avoided a confrontation. One of the experienced ex-agents called the Ghost Dance religion “absurd.” The inexperienced current agents called for military intervention.

A list of Indian conservatives was compiled with recommendations that they be arrested and removed to military prisons to prevent their support of the Ghost Dance movement. Sitting Bull was among the names on that list. Every reservation had an all-Indian police force under the command of the Indian agent for the reservation. Sitting Bull lived on the Standing Rock reservation and its agent ordered the Indian police to arrest him under the cover of darkness.

When the police arrived at this cabin before dawn on December 15 and awoke him, Sitting Bull initially agreed to go with them after he dressed. But stepping outside, a crowd of supporters had converged and Sitting Bull changed his mind. When the police attempted to force him to mount his horse, one warrior in the angry crowd shot the police officer in charge, who in turn shot Sitting Bull in the chest. Another of the police shot Sitting Bull in the head and was himself shot. A close quarters gun fight erupted resulting in the deaths of Sitting Bull and seven supporters including his 17-year old son, six police, and two horses. The two police who killed Sitting Bull died in the hospital later.

Spotted Elk, who was called by soldiers the derogatory name of Big Foot, was chief of the Miniconjou Lakota Sioux. Hearing that Sitting Bull had been killed, he led his tribe off of the Cheyenne River reservation to join Red Cloud on the Pine Ridge reservation. Fearing that the intervention of the military would provoke widespread slaughter of the Sioux, their plan was to negotiate a peaceful resolution of the unrest the Ghost Dance had caused. However, before they could join forces, the military launched a search of the Black Hills with orders to arrest Big Foot. The unit assigned to find and arrest the Miniconjou chief was a battalion of the reconstituted 7^th Cavalry. Some of the battalion troopers were veterans of the 1876 Sioux uprising which wiped out most of their Regiment.

Major Whitside, the battalion commander, came upon Big Foot and his followers on December 28, 1890 in their encampment about 30 miles from Pine Ridge. They offered no resistance and put up a white flag asking for a parley. Whitside refused and demanded unconditional surrender, which was immediately given. The chief was seriously ill with pneumonia and was coughing blood. Unable to sit astride a horse, he had been transferred to a wagon. Surrounded by cavalry troops, Big Foot’s company was moved to Wounded Knee Creek to encamp for the night.

Additional troops arrived during the night commanded by Colonel Forsyth, swelling the military presence to 470 men to guard 106 warriors in Big Foot’s band plus about 230 women and children – all hungry, tired, and cold. Forsyth assumed overall command and stationed a cordon of troopers to surround the Indian teepees encamped around a pole on which the Indians had hoisted a white flag as a sign of peace and hope for safety. This cordon targeted the teepees with four Hotchkiss rotating cannons – a precursor to the heavy machine gun – each capable of firing a two-pound explosive projectile at a rate of nearly 50 rounds per minute. Forsyth’s massive show of military strength was a disaster in the making, especially since some of the Custer veterans hated the Sioux.

The next morning, December 29, began with preparations to disarm Big Foot’s band before they decamped. The first 20 warriors to emerge from teepees were told to surrender their weapons, but retreating to their teepees and assembling again in front of them, only two old rifles were produced. The cordon was tightened to within 20 paces of the warriors, all of whom had come out of their teepees by this time, including Big Foot who was seated on a bench in front of his. Troopers were dispatched to search the teepees, which agitated the warriors and their families as personal effects were thrown about in the search. About 40 more weapons were found, mostly old hunting rifles and muskets.

A soldier snatched the blanket off of a warrior named Black Coyote who was deaf, revealing a rifle which he refused to surrender because of the amount he had paid for it. The soldier’s demand for the rifle literally fell on deaf ears, and in the ensuing struggle for the weapon, it fired. Hearing rather than seeing what happened, the cordon troopers released a sheet of fire killing about half the warriors at point blank range. The surviving warriors threw off their blankets and fought the soldiers with knives, pistols, and war clubs. Because the Indians were poorly armed, the struggle was hand to hand and therefore especially bloody. Seeing the melee from their positions on a surrounding knoll, the Hotchkiss guns opened fire raking the teepee assembly area. Teepees set afire by exploding shells collapsed on their wounded inhabitants burning them alive. Within minutes 200 Indian men, women, and children lay dead among 60 troopers killed by friendly fire. Big Foot died in front of his teepee.

The Indian survivors of this holocaust raced for a dry ravine behind their encampment and were chased by enraged soldiers firing indiscriminately as Sioux fled unarmed. The Hotchkiss guns were brought up to deliver withering fire into the ditch. Bodies of women and children – obvious non-combatants – were scattered over two miles from the site of the initial confrontation, dispelling any argument that the butchery was not a massacre.

The slaughter at Wounded Knee Creek effectively ended the Ghost Dance religious movement and marked the close of the Indian wars against white domination. The Sioux nation effectively ceased to be a culture.

As the army on the scene began to clear the “battlefield” of bodies, a blizzard blew in from the north which lasted three days. The effort to remove corpses had to be suspended. When the blizzard subsided, the bodies had frozen into grotesque shapes. Civilian contractors were hired to remove and bury the Sioux in a mass grave atop the knoll where the deadly Hotchkiss guns had been placed. Remarkably, four infants were found alive in the human debris, wrapped in their deceased mothers' shawls.

The senior commander in the field, General Nelson Miles, severely criticized Colonel Forsyth’s handling of the capture of Big Foot and blamed him for the Wounded Knee slaughter. Miles relieved Forsyth of command and convened an Army Court of Inquiry to investigate him for his tactical dispositions. Forsyth was exonerated of responsibility for the massacre and later rose to the rank of Major General before retiring from the Army.

Twenty Medals of Honor were awarded by the US Army to troopers who fought in the Wounded Knee massacre. Throughout most of the 122 years that have followed, critics have repeatedly petitioned the federal government to rescind those medals. As yet, the government has refused.

The Gift of the Magi

If ever there was a story that portrayed the spirit of Christmas it is The Gift of the Magi, William Sidney Porter’s short story about a poor and very young couple who had little more than their love to give each other. Still, each managed to buy and give a sacrificial gift and that is the theme of the story.

The nom de plum of William S. Porter was O. Henry, and using it for reasons I’ll shortly give, he perfected the genre of short stories. Perhaps his ability to tell a poignant tale derived from a life that was itself filled with poignancy. Born near Greensboro North Carolina in the second year of the Civil War, Porter received no formal education except what he got from an aunt who taught at a local country school along with access to her books. As a young man, he moved to Texas for his health in the 1880s where he held odd jobs herding sheep and drawing survey maps before settling in Austin to become a teller for the First National Bank of Austin.

Though Porter had left the bank to dabble in writing, a shortage of bank funds was traced back to the time of his employment with First National. He had married by then and had a small daughter. It’s unlikely that Porter was actually guilty of embezzlement because the bank was badly managed, but rather than confront the charges, he left his sickly wife and daughter and fled to New Orleans and then Honduras. His wife’s failing health forced his return and she shortly died of tuberculosis, a common killer in those years. In 1898 he was found guilty of the embezzlement charges and sentenced to five years in an Ohio prison.

During his imprisonment, Porter wrote fourteen short stories – mostly under the pseudonym O. Henry in order to hide his prison record. All were published.

As a young man in North Carolina, Porter had learned the practice of pharmacy from his uncle who was himself a pharmacist. Although he was a licensed pharmacist, Porter never practiced until he was imprisoned. Setting up shop, Porter became the prison’s pharmacist, presumably never spending time in a cell block. He was released for good behavior within three years.

Rejoining his daughter, who was then 11, Porter married his childhood sweetheart and moved to New York where he could be close to his publishers. His published oeuvre grew to 300 works and he was famous by any definition. Yet he began to drink heavily. As his work suffered, his wife left him.

Porter died in 1910 in New York City of cirrhosis and complications from diabetes. He was then penniless and only 47 years old. He is buried in Asheville North Carolina. His daughter would live only 17 more years herself and was buried next to her father.

.

O. Henry wrote The Gift of the Magi in 1906. I hope this tale of Jim and Della and their memorable Christmas blesses your Christmas …

One dollar and eighty-seven cents. That was all. And sixty cents of it was in pennies. Pennies saved one and two at a time by bulldozing the grocer and the vegetable man and the butcher until one's cheeks burned with the silent imputation of parsimony that such close dealing implied. Three times Della counted it. One dollar and eighty- seven cents. And the next day would be Christmas.

There was clearly nothing to do but flop down on the shabby little couch and howl. So Della did it. Which instigates the moral reflection that life is made up of sobs, sniffles, and smiles, with sniffles predominating.

While the mistress of the home is gradually subsiding from the first stage to the second, take a look at the home. A furnished flat at $8 per week. It did not exactly beggar description, but it certainly had that word on the lookout for the mendicancy squad.

In the vestibule below was a letter-box into which no letter would go, and an electric button from which no mortal finger could coax a ring. Also appertaining thereunto was a card bearing the name "Mr. James Dillingham Young."

The "Dillingham" had been flung to the breeze during a former period of prosperity when its possessor was being paid $30 per week. Now, when the income was shrunk to $20, though, they were thinking seriously of contracting to a modest and unassuming D. But whenever Mr. James Dillingham Young came home and reached his flat above he was called "Jim" and greatly hugged by Mrs. James Dillingham Young, already introduced to you as Della. Which is all very good.

Della finished her cry and attended to her cheeks with the powder rag. She stood by the window and looked out dully at a gray cat walking a gray fence in a gray backyard. Tomorrow would be Christmas Day, and she had only $1.87 with which to buy Jim a present. She had been saving every penny she could for months, with this result. Twenty dollars a week doesn't go far. Expenses had been greater than she had calculated. They always are. Only $1.87 to buy a present for Jim. Her Jim. Many a happy hour she had spent planning for something nice for him. Something fine and rare and sterling--something just a little bit near to being worthy of the honor of being owned by Jim.

There was a pier-glass between the windows of the room. Perhaps you have seen a pier-glass in an $8 flat. A very thin and very agile person may, by observing his reflection in a rapid sequence of longitudinal strips, obtain a fairly accurate conception of his looks. Della, being slender, had mastered the art.

Suddenly she whirled from the window and stood before the glass. her eyes were shining brilliantly, but her face had lost its color within twenty seconds. Rapidly she pulled down her hair and let it fall to its full length.

Now, there were two possessions of the James Dillingham Youngs in which they both took a mighty pride. One was Jim's gold watch that had been his father's and his grandfather's. The other was Della's hair. Had the queen of Sheba lived in the flat across the airshaft, Della would have let her hair hang out the window some day to dry just to depreciate Her Majesty's jewels and gifts. Had King Solomon been the janitor, with all his treasures piled up in the basement, Jim would have pulled out his watch every time he passed, just to see him pluck at his beard from envy.

So now Della's beautiful hair fell about her rippling and shining like a cascade of brown waters. It reached below her knee and made itself almost a garment for her. And then she did it up again nervously and quickly. Once she faltered for a minute and stood still while a tear or two splashed on the worn red carpet.

On went her old brown jacket; on went her old brown hat. With a whirl of skirts and with the brilliant sparkle still in her eyes, she fluttered out the door and down the stairs to the street.

Where she stopped the sign read: "Mne. Sofronie. Hair Goods of All Kinds." One flight up Della ran, and collected herself, panting. Madame, large, too white, chilly, hardly looked the "Sofronie."

"Will you buy my hair?" asked Della.

"I buy hair," said Madame. "Take yer hat off and let's have a sight at the looks of it."

Down rippled the brown cascade.

"Twenty dollars," said Madame, lifting the mass with a practiced hand.

"Give it to me quick," said Della.

Oh, and the next two hours tripped by on rosy wings. Forget the hashed metaphor. She was ransacking the stores for Jim's present.

She found it at last. It surely had been made for Jim and no one else. There was no other like it in any of the stores, and she had turned all of them inside out. It was a platinum fob chain simple and chaste in design, properly proclaiming its value by substance alone and not by meretricious ornamentation--as all good things should do. It was even worthy of The Watch. As soon as she saw it she knew that it must be Jim's. It was like him. Quietness and value--the description applied to both. Twenty-one dollars they took from her for it, and she hurried home with the 87 cents. With that chain on his watch Jim might be properly anxious about the time in any company. Grand as the watch was, he sometimes looked at it on the sly on account of the old leather strap that he used in place of a chain.

When Della reached home her intoxication gave way a little to prudence and reason. She got out her curling irons and lighted the gas and went to work repairing the ravages made by generosity added to love. Which is always a tremendous task, dear friends--a mammoth task.

Within forty minutes her head was covered with tiny, close-lying curls that made her look wonderfully like a truant schoolboy. She looked at her reflection in the mirror long, carefully, and critically.

"If Jim doesn't kill me," she said to herself, "before he takes a second look at me, he'll say I look like a Coney Island chorus girl. But what could I do--oh! what could I do with a dollar and eighty- seven cents?"

At 7 o'clock the coffee was made and the frying-pan was on the back of the stove hot and ready to cook the chops.

Jim was never late. Della doubled the fob chain in her hand and sat on the corner of the table near the door that he always entered. Then she heard his step on the stair away down on the first flight, and she turned white for just a moment. She had a habit for saying little silent prayer about the simplest everyday things, and now she whispered: "Please God, make him think I am still pretty."

The door opened and Jim stepped in and closed it. He looked thin and very serious. Poor fellow, he was only twenty-two--and to be burdened with a family! He needed a new overcoat and he was without gloves.

Jim stopped inside the door, as immovable as a setter at the scent of quail. His eyes were fixed upon Della, and there was an expression in them that she could not read, and it terrified her. It was not anger, nor surprise, nor disapproval, nor horror, nor any of the sentiments that she had been prepared for. He simply stared at her fixedly with that peculiar expression on his face.

Della wriggled off the table and went for him.

"Jim, darling," she cried, "don't look at me that way. I had my hair cut off and sold because I couldn't have lived through Christmas without giving you a present. It'll grow out again--you won't mind, will you? I just had to do it. My hair grows awfully fast. Say `Merry Christmas!' Jim, and let's be happy. You don't know what a nice -- what a beautiful, nice gift I've got for you."

"You've cut off your hair?" asked Jim, laboriously, as if he had not arrived at that patent fact yet even after the hardest mental labor.

"Cut it off and sold it," said Della. "Don't you like me just as well, anyhow? I'm me without my hair, ain't I?"

Jim looked about the room curiously.

"You say your hair is gone?" he said, with an air almost of idiocy.

"You needn't look for it," said Della. "It's sold, I tell you--sold and gone, too. It's Christmas Eve, boy. Be good to me, for it went for you. Maybe the hairs of my head were numbered," she went on with sudden serious sweetness, "but nobody could ever count my love for you. Shall I put the chops on, Jim?"

Out of his trance Jim seemed quickly to wake. He enfolded his Della. For ten seconds let us regard with discreet scrutiny some inconsequential object in the other direction. Eight dollars a week or a million a year--what is the difference? A mathematician or a wit would give you the wrong answer. The magi brought valuable gifts, but that was not among them. This dark assertion will be illuminated later on.

Jim drew a package from his overcoat pocket and threw it upon the table.

"Don't make any mistake, Dell," he said, "about me. I don't think there's anything in the way of a haircut or a shave or a shampoo that could make me like my girl any less. But if you'll unwrap that package you may see why you had me going a while at first."

White fingers and nimble tore at the string and paper. And then an ecstatic scream of joy; and then, alas! a quick feminine change to hysterical tears and wails, necessitating the immediate employment of all the comforting powers of the lord of the flat.

For there lay The Combs--the set of combs, side and back, that Della had worshipped long in a Broadway window. Beautiful combs, pure tortoise shell, with jeweled rims--just the shade to wear in the beautiful vanished hair. They were expensive combs, she knew, and her heart had simply craved and yearned over them without the least hope of possession. And now, they were hers, but the tresses that should have adorned the coveted adornments were gone.

But she hugged them to her bosom, and at length she was able to look up with dim eyes and a smile and say: "My hair grows so fast, Jim!"

And them Della leaped up like a little singed cat and cried, "Oh, oh!"

Jim had not yet seen his beautiful present. She held it out to him eagerly upon her open palm. The dull precious metal seemed to flash with a reflection of her bright and ardent spirit.

"Isn't it a dandy, Jim? I hunted all over town to find it. You'll have to look at the time a hundred times a day now. Give me your watch. I want to see how it looks on it."

Instead of obeying, Jim tumbled down on the couch and put his hands under the back of his head and smiled.

"Dell," said he, "let's put our Christmas presents away and keep 'em a while. They're too nice to use just at present. I sold the watch to get the money to buy your combs. And now suppose you put the chops on."

The magi, as you know, were wise men--wonderfully wise men--who brought gifts to the Babe in the manger. They invented the art of giving Christmas presents. Being wise, their gifts were no doubt wise ones, possibly bearing the privilege of exchange in case of duplication. And here I have lamely related to you the uneventful chronicle of two foolish children in a flat who most unwisely sacrificed for each other the greatest treasures of their house.

But in a last word to the wise of these days let it be said that of all who give gifts these two were the wisest. O all who give and receive gifts, such as they are wisest. Everywhere they are wisest. They are the magi.