John of Capistrano: Lawyer, Governor, Warrior Priest

Saint John of Capistrano (1385-1456) was born in that city in Abruzzi, the son of a German-born Knight. His early career resembles that of Saint Ambrose. John studied at the University of Perugia, attaining degrees in both church and civil law. After graduation, he practiced law in the courts of Naples. He was well-regarded and was appointed governor of Perugia while he was still in his twenties.

In the course of attempting to end a regional war as a negotiator, he was imprisoned by enemy forces. During his captivity, he experienced a vision of Saint Francis, and radically changed his life. It is reported that in reparation for his sins, he chose to humble himself by riding backwards on a donkey, wearing a cap made of paper on which he wrote his gravest sins in a script all could read.  After his marriage was annulled, he entered the Franciscan Order, learning how to preach from Saint Bernardine of Siena, who had a special devotion to the Holy Name of Jesus. John was an ascetic, walking barefoot, wearing a hair shirt, sleeping little, and practicing a regimen of extreme fasting. Contemporary accounts described him as “a man small of body, withered, emaciated, nothing but skin and bone, but cheerful, strong and strenuous in labour.”

Saint John became a noted preacher, drawing hundreds of people to his sermons. After one sermon, it is claimed that 100 who heard him preach sought to enter the Franciscans.

He was a warrior for God, both figuratively and literally. Figuratively, he preached strongly against the heresies of his time in Italy, Germany, Austria, Hungary, Poland, Bohemia, and even Russia. He was named Inquisitor for Italy, Hungary and Bohemia. He was also commissioned by the Pope to preach a crusade against the Turks, who were then invading eastern Europe. Literally, he helped recruit and lead some of the Christian soldiers, mostly peasants, against the Turks in the Battle of Belgrade in 1456, armed only with a standard bearing the Holy Name of Jesus. He also served as a diplomat for the papacy, including service at the Council of Florence, which sought to, and temporarily was successful in, healing the rift between the eastern and western churches.

Saint John died on October 23, 1456, shortly after the successful defense of Belgrade, as a result of an epidemic which struck the area. His feast day is on the anniversary of his death, having been moved from the prior date of March 28. He is the patron saint of military chaplains. The mission and town of San Juan Capistrano in Orange County, California – famous for the return of the American cliff swallows each Spring – was named after him by his Franciscan Brothers in 1776, one of whom was Junipero Serra.






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Charles Borromeo: Catholic Reformer

The name of Charles Borromeo (1538-1584), a Catholic saint, is often associated with seminaries, and, indeed, the seminary in Philadelphia which was visited by Popes John Paul II and Francis is named after him. But Borromeo should be remembered not only for his work in fostering the establishment of seminaries, but also for the many other things he accomplished in his short life as a prominent member of the Catholic Counter Reformation, along with such saints as Francis de Sales and Philip Neri.

Borromeo was born to a pious and aristocratic family with close connections to the Catholic hierarchy. His uncle became Pope Pius IV in 1559. The new pope was a Medici, as was Charles’ mother, and he named his nephew a cardinal when Borromeo was only 22 years old. Borromeo had by then completed his studies in civil and canon law at the University of Pavia, attaining a doctorate in those fields, but had not then been ordained to the priesthood. His uncle gave him many administrative responsibilities, at which he excelled, and Borromeo spent six years in Rome where his closest friend was Philip Neri. Those two future saints followed an ascetic lifestyle, and Borromeo began a lifelong practice of almsgiving. While in Rome, he also established a Carthusian monastery and a college for poor students at the University of Pavia.

At the age of 25, Borromeo employed his administrative expertise to organize the last session of the Council of Trent. That highly influential council responded to the Protestant Reformation with many new initiatives, including, among others, teachings and definitions on the Eucharist, Holy Orders, and Matrimony, the foundation of seminaries to train priests, the requirement that priests wear cassocks and reside in their dioceses, formation of a universal catechism, and revision of the Roman Missal and Divine Office.

After his service in Rome concluded, Borromeo moved to Milan, where he spent the last 18 years of his life. He served as Milan’s Archbishop and Cardinal for 20 years, and he was the first such prelate to live in that city in 80 years. He preached reform and taught the Catholic Faith all over the diocese, walking, some times in bare feet, to towns that had not experienced an apostolic visitation for hundreds of years. His reforms were not always popular, and a member of a religious order affected by those reforms shot him. When his vestments deflected the bullet, the people of Milan saw it as a miracle and gave him even greater support.

Borromeo had a great devotion to three saints, two of whom were martyrs remembered for their opposition to the kings of their time. Borromeo kept pictures of  the martyred Thomas Becket and John Fisher in his residence, and also had a great devotion to Saint Ambrose. He also supported the reform orders, including the Franciscans and Carmelites, and served as visitor of those orders and of the Knights of Malta, a lay religious order devoted to defending the Catholic Faith and serving the sick and the poor.

He was in contact with other lights of the Catholic Counter Reformation, and the future English martyr and saint Edmund Campion visited Borromeo in Rome for eight days before he returned to England.

As he had done from his earliest days, Borromeo spent virtually all his considerable wealth in almsgiving and care for the poor. When a plague broke out in Milan, he remained in the city through the entire two-year outbreak of bubonic plague from 1576 to 1578.

Cardinal Borromeo had a great interest in Church architecture, and composed a treatise applying the teachings of the Council of Trent to the design of churches. Among other things, he favored removal of the screen (“rood”) which blocked the congregation from the altar, replacing it with an low altar rail. He also suggested a direct line of sight from the church entrance to the tabernacle, and a high dome meant to evoke the journey to heaven in the eyes of the faithful. Borromeo also favored a separate church space for what we now call confessionals, enclosing the penitent to respect his or her privacy.

Borromeo died from a fever in 1584 at the age of 46, weakened from his continuous practice of asceticism. Evelyn Waugh described Borromeo in his later years as “living in ascetic simplicity, among the lavish retinue, eating his thin soup, sleeping on his folding bedstead, wearing his patched hair shirt, moving with halting gait, chilly even in the height of summer, speaking in a voice so subdued that it was barely audible, [and] grave and recollected as a nun.”

Borromeo was canonized in 1610 by Pope Paul V. His feast is commemorated on November 4, and he has been named patron saint of seminarians.

It is said that God raises up saints in times of crisis. The Catholic Church, in particular, needs such new saints today, to reform the church and especially to protect victims of priest abuse, including the seminarians for whom Charles Borromeo serves as patron saint.

Further Reading:

See Chapter 6 of Jerome K. Williams, True Reformers: Saints of the Catholic Reformation (Augustine Institute, 2017), on which I have relied for this post.

The quote on Borromeo’s asceticism from Evelyn Waugh appears on page 94 in his Edmund Campion: A Life (Ignatius Press, 2005), on which I have also relied.

On Borromeo and church architecture, see Elizabeth Lev’s wonderful How Catholic Art Saved the Faith: The Triumph of Beauty and Truth in Counter-Reformation Art (Sophia Institute Press, 2018), at 19-22, 44-47.

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The Law Professor Who Became a Saint

Few law students would think of any of their professors as saints. Nevertheless, one such professor did attain the status of sainthood. His name was Turibius of Mogrovejo, and he was born in Spain to a prominent family in 1538. Too few know of the remarkable story of this holy lawyer made bishop.

Turibius graduated with a law degree from Spain’s celebrated University of Salamanca, and spent many years at his alma mater teaching law. While teaching law, he was named by King Philip II chief judge of the ecclesiastical court of the Inquisition in Granada. In 1581, Turibius was tapped against his will to be the Archbishop of Lima, Peru, a mission territory. In their Lives of the Saints, Alban Butler and Herbert Thurston explain that “he seemed to be the one person who had force of character sufficient to remedy the serious scandals which stood in the way of the conversion of the Peruvians.” Like Saint Ambrose, Turibius was then a layman, and was quickly ordained a priest and bishop before he undertook the lengthy boat trip to Peru, landing some 600 miles from Lima.

The Archdiocese was comprised of approximately 170,000 square miles, and was then experiencing both secular and clerical scandals. Turibius spent 26 years in Peru, during which time he made three lengthy walking visitations of the entire diocese, teaching the native population, whose cause he championed against repression and discrimination, as well as the Spanish settlers. In his visitations, he learned the natives’ languages, and baptized about half a million souls, including future saints Rose of Lima and Martin de Porres. He also began the first seminary in the Americas, reformed the clergy, held councils of the priests and other bishops in his diocese, arranged for the construction of schools and hospitals,and gave alms to the poor and needy, often going without food himself.

Turibius died at the age of 68 during his third visitation of the diocese, after traveling for some 14 months. He was canonized by Pope Benedict XIII in 1726, and his feast day is celebrated on March 23. Cardinal Pietro Ottoboni commissioned a painting of the new saint, The Miracle of Saint Turibius of Mogrovejo, by Sebastiano Conca. The painting is now housed in the Vatican Museums in Rome. It celebrates a miracle attributed to Turibius in which he struck a dried up riverbed which was critical for the water supply to a town. The waters immediately began to flow in the shape of a cross.

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How to Spot a Faithful Theologian

Social media today is ablaze with the conflicting views of professional theologians on important matters of faith and morals. How is a faithful believer to determine who is right? Of course, our own personal studies of these important matters, fortified by our faith traditions and teachings, is the key. These studies may be supplemented, however, by looking at the personal qualities of the professional theologians who choose to opine on issues of faith and morals. What should a faithful believer look to in making such an analysis?

In his excellent book, A Little Book for New Theologians (IVP Academic, 2012),Kelly Kapic assists us in our search by identifying several important qualities that a theologian should embrace. These include the following:

  1. Personal holiness. Kapic quotes Gregory of Nazianzus, who stated that for “one who is not pure to lay hold of pure things is dangerous, just as it is for weak eyes to look at the sun’s brightness.”
  2. Use of reason, fortified by faith. Kapic argues that “Faith expands the parameters of reason without needlessly sacrificing it.”
  3. A devotion to prayer. Kapic quotes Saint Anselm: “a theological thought can breathe only in the atmosphere of dialogue with God.”
  4. Personal humility and repentance. As Kapic notes, “Revelation and repentance often come together, as God draws people to a deeper knowledge of himself.”
  5. Compassion. Here Kapic argues that “If we are to pursue theology faithfully, we must contemplate the value God places on those who are most vulnerable and in need.”
  6. Respect for tradition. Kapic states that while tradition should not be blindly followed, nevertheless faithful theologians should “seek the counsel of the saints from both the past and the present.”
  7. Love of Scripture. Kapic states that “good, orthodox and worship-inducing theology must be rooted in, sustained by and continually nourished through Scripture.”

This is an impressive list, and theologians who manifest these personal attributes should be looked to for guidance when their writings are consistent with our Faith traditions and teachings.

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Ambrose of Milan: From Lawyer and Governor to Bishop and Saint

Those who have heard of Saint Ambrose of Milan most probably remember two or three things about him. First, they may recall that he was responsible for the conversion of Saint Augustine, who came to the Faith after years of rejecting Christianity, but only after hearing Ambrose preach. Augustine was impressed by Ambrose’ intelligence in explaining the Scriptures and by his skill in oratory, which was also Augustine’s strength. The second thing many may remember about Ambrose is that he was acclaimed as Bishop of Milan while still a 35-year-old unbaptized layman when a small child (more likely the people of the city) allegedly cried out “Ambrose, Bishop” when he entered the cathedral after the death of the prior bishop. Indeed, he was ordained bishop only eight days after his baptism. A third fact the more sophisticated may know is that Ambrose fought the Arian heresy, which was adhered to by the prior bishop of Milan and which divided the Milanese faithful at the time he became that city’s bishop.

There is much more to Ambrose than these few points. To begin with, Ambrose was a successful lawyer and the governor of the province in which Milan was located prior to starting his service to the Church. He was noted for his expert legal work and was said to have “argued cases so splendidly” that he was selected to sit in the government council. He used his legal skills in both his preaching and in his many theological works, acting as a lawyer would when taking on a new case. When he became bishop, for example, he undertook a study of the Scriptures and the Greek Fathers, with particular reliance on Origen, and he also consulted expert priests and theologians. Ambrose also studied the Arian beliefs and the Nicean opposition in depth, writing five books, “On Faith,” which were addressed to the Roman Emperor Gratian to refute the Arian doctrine. As a good advocate, he employed colorful analogies in his writings. Here is one example: “The overshadowing of the divine Spirit does not darken, but reveals secret things to the hearts of people. It is a luminous cloud that soaks us from the dew that sprinkles the minds of people with faith sent by the voice of almighty God.”

Ambrose wrote a great deal on Scripture. He is recognized as a great synthesizer and organizer of prior works, and is remembered for the coherence of his writing. We may attribute this, at least in part, to his legal training.

Ambrose was also a great exponent of the allegorical reading of the Scriptures, which he employed to plumb the depth of scriptural passages, going beyond a simple literal reading. This particular approach was influential in converting Augustine, who recoiled from the literal meaning of some verses, finding them unbelievable. Indeed, Augustine called Ambrose the “father” of his conversion.

Bishop Ambrose was also one of the first people to read scripture by himself silently, when the prevailing practice at that time was to read scripture aloud. He was fond of silent contemplation, common today, but rare in the Milan of the fourth century. In the words of Augustine, “In reading, [his] eyes scan the page and the heart penetrates the meaning; but his voice and tongue remain at rest.”

Finally, the good bishop left a significant musical heritage through his composition of many hymns, some of which remain today in the Roman Breviary.

When Ambrose left public life, he devoted himself completely to the Church and the people. He gave away his wealth to the Church and to the poor. He wrote, preached, served the people in multiple ways, and became an ascetic, being described as “a man of great abstinence, of many vigils and labors…[weakening] his body with daily fasts.” He was  also said to be “assiduous…in prayer day and night.” It was through this thorough passage from lawyer and governor to bishop that the lawyer became a saint.

Source Note:

The quotations in this post are taken from Cesare Pasini, Ambrose of Milan: Deeds and Thought of a Bishop (St. Pauls, English ed., 2013; Robert L. Grant, translator)

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Why Masterpiece Cakeshop Was Correctly Decided

The Supreme Court’s decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No.16-111 (June 4, 2018) disappointed both sides by failing to address the the key question presented for decision, namely whether sincere religious objections to same-sex marriage justified a baker in refusing to create a wedding cake celebrating such a marriage. Instead, the court ruled that the Colorado Civil Rights Commission violated the Free Exercise Clause of the First Amendment by demonstrating a “clear and impermissible hostility toward the sincere religious beliefs motivating [the baker’s] objection.” In my view, the case was correctly decided for the following three reasons.

First, as I urged in my blog post of September 14, 2017, the court properly crafted “a narrow opinion which will garner the greatest number of justices who will join it.” One reason for my recommendation was to “Let the free exercise claims develop further in the lower courts.” This approach, which the court chose to follow, wisely avoided a premature adjudication of an important and sensitive constitutional issue, and relieved the court from the criticism it has experienced from its decisions making early determinations declaring a constitutional right to an abortion, Roe v. Wade (1973), as well as to same-sex marriage. Obergefell v. Hodges (2015).

Second, by strongly declaring that religious objections need to be treated fairly by government decision makers without any bias demonstrated toward religious practice, the court sent a strong signal that the current, increasing hostility shown to religious institutions and their practitioners is not acceptable in government decision-making. In one passage, among several others, Justice Kennedy emphasized that “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” To take just one of many examples of a pervasive hostility to religion in some government circles, the City of Philadelphia recently revoked the ability of one Catholic and another Christian agency to continue to place children with foster parents because of their faith-based opposition to same-sex marriage. These two agencies placed nearly 400 children in foster homes in 2017. The city’s action was based on a bias against the two agencies’ religious beliefs, and was implemented despite the city’s making an urgent call to recruit 300 families to provide foster care because of an increasing number of children coming into that system because of the opioid epidemic.

Third, it is questionable whether the baker would have won his case if the broader issue had been reached. Opinions by Justice Kagan and Justice Ginsburg, joined respectively by Justices Breyer and Sotomayor, make it clear that those four justices would have decided that the baker had to conform his practices to a generally applicable anti-discrimination law absent the hostility shown to his religious beliefs by the Colorado Civil Rights Commission. By contrast, Justices Thomas’ concurring opinion, joined only by Justice Gorsuch, would have found that the baker’s free exercise claim would have protected him from being forced to create a cake for a same-sex wedding. In addition, in a separate opinion by Justice Gorsuch, joined by Justice Alito, there is a suggestion, without any explicit declaration, that the baker would possess such a right. It is of interest that Justice Alito did not join in Justice Thomas’ broader concurring opinion, and that Chief Justice Roberts was silent on the issue. As such, there is no evidence that a broader opinion would have resulted in a decision in favor of the baker. This is particularly so since Justice Kennedy, the court’s strongest advocate of gay rights, has several statements in his majority opinion recognizing the necessity “to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods and services.”

Given the majority opinion’s recognition that the proper adjudication of cases pitting religious objections to providing goods and services against the dictates of  anti-discrimination laws requires a close look at all the facts and circumstances, the court was wise to limit its opinion, and to permit the lower courts to decide particular cases based upon their specific facts and circumstances. As such, if and when a conflict arises, the court can revisit the broader questions, with the advantage of insights from the lower courts.

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Alexander Solzhenitsyn and the Masterpiece Cakeshop Case

In an article in the current issue of Touchstone magazine, L. Joseph Letendre discusses the famous commencement speech of Alexander Solzhenitsyn at Harvard University in 1978. One of the points that Solzhenitsyn makes in his speech regarding the decline of the West has application to the situation presented in the Masterpiece Cakeshop case.

Solzhenitsyn criticized the West’s reliance upon what he described as its “legalistic life.” He explained that “Every conflict is solved according to the letter of law, and this is considered to be the ultimate solution. If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be entirely right,  and urge self-restraint or a renunciation of these rights, call for self-sacrifice and selfless risk: this would simply sound absurd.”

Some of the commentators on the Masterpiece Cakeshop case paint a factual picture which, if true, present an example of what Solzhenitsyn was criticizing.  They point out that there were other Colorado bakers conveniently located who would have been willing to create a special cake for the same-sex couple’s upcoming wedding in Massachusetts.  See, e.g., Thomas C. Berg and Douglas Laycock, “Masterpiece Cakeshop and Protecting Both Sides,” Georgetown University Berkley Center for Religion, Peace and World Affairs, posted December 4, 2017.(“The harm to the couple here is also limited because numerous other bakers were easily available in Denver.”) Indeed, the couple did in fact obtain a specially-designed wedding cake from another bakery. (See picture of their cake in “The Case of Masterpiece Cakeshop,”, posted December 27, 2017.)

Without deciding whether the denial of the Christian baker to create a specialty cake to celebrate this same-sex wedding was an actionable episode of discrimination (and I do not believe it was), the point made by Solzhenitsyn is squarely on point. In his words, the “legalistic life” followed in the West concludes that “If one is right from a legal point of view, nothing more is required,” and no one is permitted to “urge self-restraint or a renunciation of these rights.” Thus, in the “legalistic” view, the legal recognition of same-sex marriage mandates that all must honor it no matter what, and that those who wish to enter into such a marriage are right to force their beliefs on the others who do not share their views. Self-restraint is not required, and indeed would be “absurd.”

As he is most likely to have the decisive vote in Masterpiece Cakeshop, we give Justice Kennedy the last word. He observed at the oral argument that: “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual… And –because accommodation is, quite possible, we assume that there were…other good bakery shops that were available.” (Transcript of December 5, 2017 Oral Argument, No. 16-111, at 62.)


L. Joseph Letendre, “Schism in Harvard Yard: Solzhenitsyn’s Blunt Sermon Still Cuts Deep 40 Years Later,” Touchstone May/June 2018, at 30-35.


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The Election of 1912 and the Debate over Antitrust Policy

Since the initial initial passage of the Sherman Act in 1890, the antitrust laws have been the subject of great debate among lawyers, economists, and judges. Little interest, however, has been shown by the popular media in this debate over the years.  Stories tend to focus only on particular cases, rather than on broader issues of policy. This was not the case, however, during the presidential election of 1912, when the candidates presented different approaches regarding how the antitrust law should be enforced, and whether new legislation was required.

There were four major candidates for president in 1912. William Howard Taft, the incumbent president, was the Republican nominee. Theodore Roosevelt, the former president, became the candidate of the newly-formed Progressive (“Bull Moose”) Party, after he was denied the Republican nomination in what appeared to be a rigged convention. Woodrow Wilson, who had served as governor of New Jersey and as president of Princeton University, won the nomination of the Democrats. Eugene Debs, the firebrand labor leader, was once again the nominee of the Socialist Party.

Wilson was elected president, winning 43 percent of the popular vote, and carrying 40 states. He won, at least in part, because Taft and Roosevelt split the traditional Republican vote. The incumbent Taft won 23 percent of the popular vote, but carried only two states. Roosevelt won six states, and 27 percent of the vote. Debs accounted for most of the remaining seven percent.

In the campaign, the four major candidates presented four different views on antitrust.


Roosevelt distinguished between “good” and “bad” trusts, and did not believe that all large corporations should be broken up. He explained that “The corporations against which we had proceeded had sinned, not merely by being big (which we did not regard as in itself a sin), but by being guilty of unfair practices toward their competitors, and by procuring advantages from the railways.” He directed his animus against what he called “malefactors of great wealth,” writing that “When I took the presidency, it was a common and bitter saying that a big man, a rich man, could not be put in jail. We put many big and rich men in jail.”

Roosevelt believed that the antitrust laws were ineffective to restrain corporate abuses. As such, he argued for “thoroughgoing administrative control by the government,” which would exercise “a steady expert control” over corporations because large corporations required “close and jealous supervision.” He therefore supported the establishment of a commission “covering the whole field of interstate business, exclusive of transportation.”

Despite his reservations about the efficacy of the then-existing antitrust laws, the Roosevelt Administration filed numerous antitrust lawsuits. The most notable was the Northern Securities case, in which the Supreme Court found, by a five-to-four vote, that the formation of a holding company combining several railroads into one integrated operation in 17 states was an illegal combination because the holding company stock “was acquired and held to be used in suppressing competition between those companies. It came into existence only for that purpose.”


William Howard Taft was a lawyer strongly committed to the rule of law. He had served as a judge on the Sixth Circuit Court of Appeals, and would go on after his presidency to become Chief Justice of United States. He was the only person to serve as both president and chief justice, and was a strong defender of the judiciary, which Roosevelt had attacked in his campaign as “the agents of reaction.”

Taft believed that the dictates of the law should be clear and certain. He stated that American business should be assured “of that measure of stability and certainty in respect to those things that may be done and those that are prohibited which is essential to the life and growth of all business.”

In the area of antitrust law, Taft believed in strong enforcement of the existing law. In fact, his administration filed approximately twice the number of antitrust prosecutions in four years than Roosevelt did in seven. He felt that the trusts stifled competition by allowing “the aggregation of wealth in plants so great the owners of it were able, by cunningly devised means, to stifle compensation, to control prices of goods and shove them up above what the costs of production would justify.”

While he agreed with Roosevelt that the size of a corporation was not determinative — that “big” was not necessarily “bad” — he disagreed that the law could lawfully distinguish between “good” and “bad” trusts. As such, his administration filed an antitrust lawsuit against United States Steel, a mammoth corporation which Roosevelt had determined to be a “good” trust.

Taft was originally opposed to the concept of interpreting the Sherman Act under a so-called “rule of reason” approach, since the statutory language did not support such an interpretation. Nevertheless, after the Supreme Court chose to follow that approach in the Standard Oil case, he declared that while the court “did not take exactly the line of distinction I have drawn,… it certainly approximates it.”


Wilson believed in a legislative solution to the trusts problem. He sought to restructure competition by imposing rules of engagement, calling for “The destruction of monopoly not by regulation, but by the enactment of specific legislation.” These were enacted after Wilson’s election as the Clayton Act and the Federal Trade Commission Act. The Clayton act prohibited certain practices thought to be anticompetitive, including price discrimination, mergers that substantially lessened competition, interlocking directorates, and tying arrangements, under which one product was only sold in combination with another, less desirable, one. The Federal Trade Commission was empowered to seek out other, unspecified “unfair methods of competition,” and was empowered to issue cease-and-desist orders.

These legislative approaches reflected the Progressive Era system of imposing structure and order everywhere, with the government serving as a watchmaker deity over society.


The Socialist Party candidate, Eugene Debs, took the most radical approach of all the candidates. He sought no less than “mastery and control of industry.” He favored the approach taken in the Populist Party Platform of the 1890s, which called for nationalization of key industries, including transportation, communications, and banking.

Where We Are Now:

Today the rule of reason approach continues generally to be the polestar in antitrust litigation. Initially, after the Standard Oil decision, the courts differentiated between restraints that were judged under the rule of reason, and others that were deemed to be so pernicious as to be labeled “per se” violations of the Sherman Act. These per se violations included price-fixing and division of territories between competitors. In the era after World War II until the mid-1970s, the Supreme Court broadened this per se approach, following a populist consumer impact model that resulted in protecting small competitors and consumer interests rather than competition itself. That model was largely abandoned starting with the 1977 opinion in Continental T.V. Inc. v. GTE Sylvania, Inc., in favor of an expanded rule-of-reason inquiry using economic analysis in place of a consumer impact model. This reflected the influence of the Chicago school of economics, supported on the Supreme Court by Justices Lewis Powell, a former president of the American Bar Association, and John Paul Stevens, a former antitrust lawyer from Chicago. Today, most restraints are judged under a rule-of-reason approach that asks whether a restraint promotes or suppresses competition. The Supreme Court has explained that this rule-of-reason approach requires a court to decide “whether the questioned practice imposes an unreasonable restraint on competition, taking account a variety of factors, including specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint’s history, nature, and effect.” Nevertheless, some per se rules still apply, especially in the areas of price fixing and territorial allocations.

By permitting businesses to justify many types of restraints, and by elevating economic analysis over populist ideals of preserving small producers and competitors, this approach continues a history tracing back to the Marshall Court of the Supreme Court’s protection of business against overregulation, a history which has been interrupted only briefly in the later New Deal years. Nevertheless, particularly with the emergence of giant corporations such as Amazon and Google swallowing up other businesses in different areas of the economy, and healthcare companies acquiring or being acquired by businesses in related areas of the economy, there are several voices seeking to cut back on a purely economic analysis, and calling for greater regulation of these large corporations, together with some calling for expanding the reach of the antitrust laws. In some ways, therefore, the ghost of Theodore Roosevelt rises again, in his call for a commission which would regulate virtually all large corporations operating in interstate commerce.

For Further Reading:

I discuss the Election of 1912 and the approaches taken by Roosevelt, Taft, Wilson, and Debs on antitrust issues in more detail in Chapter 4 of my book, Politics and American Business: The Growth of Industrial America, 1860-1960 (2016). In addition, the Supreme Court cases from this and later time periods are analyzed in my book, Shaping America: The Supreme Court and American Society (2009), at 93-100.

Case Citations:

Northern Securities Co. v. United States, 193 U.S. 197 (1904).

Standard Oil Co. v. United States, 221 U.S. 1 (1911).

United States v. United States Steel Corp., 251 U.S. 417 (1920).

Continental T.V. Inc. v. GTE Sylvania, Inc., 433 U.S. 36 (1977).

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Beyond Evidence: The Many Contributions of John Henry Wigmore

John Henry Wigmore (1863-1943) was a giant of American law. While most think of him only as the author of his massive treatise, Law of Evidence (1st ed. 1904-05), his impressive career touched on many other areas. His life is the subject of an excellent book by Andrew Porwancher, John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law (University of Missouri Press, 2016), on which I have heavily relied in this post.

Wigmore’s Life and Achievements

Born in San Francisco in the middle of the American Civil War, Wigmore went East and graduated first from Harvard College and then from Harvard Law School, where he  was one of the founders of the Harvard Law Review.

After a brief period of private practice in Boston, Wigmore spent three years in Japan as the first professor of American law at Keio University, where he began a lifelong interest in comparative law. He also played shortstop on what was the first baseball team in Toyko.

Wigmore returned to the United States in 1893, assuming a position as a faculty member of the Northwestern University School of Law. He became Dean of that institution in 1901, and served in that position until 1929. In his early years at Northwestern, he was recognized as a leading national expert on the law  of torts. During his tenure as dean, he also modernized the curriculum, raised money to construct a new law school building, and expanded the international law holdings of the law library. Although he retired from the faculty in 1934, he continued teaching as the emeritus dean.

Wigmore also served in the U.S. Army during World War I, performing special assignments and working for the provost marshall general and the judge advocate general. One such assignment involved a survey of the country’s need for manpower. He left the Army with the rank of Colonel.

Wigmore was a prolific author. In addition to three editions of his evidence treatise, he wrote 46 books, was the editor on 38 others, and contributed to nine books on Japanese law. He continued his interest in comparative law throughout his life, and was named to be the first chairman of the American Bar Association Section on International and Comparative law. Wigmore either spoke or could read in twelve languages, including Arabic and Japanese.

Wigmore was also active in other aspects of the work of the American Bar Association, and assisted in the founding of the Section on Legal Education. He ultimately was honored by the award of the ABA medal for a lifetime of service to the legal profession in 1932.

Wigmore was often consulted by those in high positions. For example, he served as a adviser to President Franklin Roosevelt on air travel law.

He died in 1943 in a tragic automobile accident when the taxicab he was in collided with a car. He was then 80 years old, and still a prolific contributor to many fields of the law.

Wigmore on Evidence

Wigmore’s massive Law of Evidence is well known even today, some 114 years after its original publication. It is still cited, and relied upon popularly as “Wigmore on Evidence,” and is considered a foundational text of American law. Citations to it abound in judicial opinions, scholarly articles, and numerous other legal publications. Advertisements for the first edition pointed out that the 4,000 page, four volume treatise “cites more than 40,000 cases and contains over 9,000 Statutes, parts of Statutes, and Code Sections.” By the  time of the third and last edition, the treatise had expanded to ten volumes with 85,000 citations. The Harvard Law Review opined that it was more than a restatement of existing law, because “It has created law.” This was because Wigmore commented on many of the cases he cited, and made suggestions for reform.

There were many influences on Wigmore’s work on the law of evidence, beginning with his years in Japan. Andrew Porwancher points out that Wigmore appreciated and incorporated the Japanese “advocacy of judicial discretion” in his treatise. Porwancher quotes Wigmore as stating: “The chief characteristic of Japanese justice as distinguished from our own may be said to be this tendency to consider all the circumstances of individual cases, to confine the relaxation of principles to judicial discretion, to balance the benefits and disadvantages of a given course, not for all time in a fixed rule, but anew in each instance.”

Porwancher contends that Wigmore’s views also paint him as a Progressive/Pragmatist of the early twentieth century, with mentors such as Justice Oliver Wendell Holmes and Harvard Law Professor James Bradley Thayer further and more directly influencing his writings. Indeed, he dedicated the first edition of his treatise to Thayer, whom he described as “the great master.” These American thinkers sought to modernize American law, including the law of evidence, and Wigmore followed their lead, going well beyond them in the field of evidence law.

Wigmore’s treatise reflected several key propositions, most of which can be traced back to early Japanese practices, as well as to similar American Progressive ideas:

First, because of his distrust of the biases of juries, his discussion was limited to evidence offered in jury trials.

Second, and related, he endorsed broad judicial discretion in application of any law of evidence.

Third, he felt that there were no universal rules, but that evidence must be judged on a case-by-case analysis which focused upon the particular conditions presented in the specific case. In this regard, he embraced Holmes’ dictum that “General propositions do not decide concrete cases.” Rules of evidence, in Wigmore’s view, were only flexible guidelines, not Procrustean limitations. He followed a practical approach, not a logical one.

Fourth, he examined the historical record to divine the reasoning underlying specific approaches to evidence, evaluating whether the circumstances then existing justified continuing the approach of the founding era to a changed, modernized society.

Fifth, he often cited literary sources and the Bible in support of his approaches to evidence. Shakespeare and Dickens were two he often cited, and the Bible provided other examples, including Susanna’s trial by the elders, where Daniel argued for interviewing her accusers separately, demonstrating their inconsistent stories, thus exonerating her. (Daniel 13:51-62)


In devoting his life’s work to many varied topics, including not only evidence, but also torts, the history of Japanese law, comparative law, international law, and legal education, Wigmore deserves high recognition as a giant of the American Legal System. His contributions in each of these fields were significant, and few others have approached his productivity.

Additional Reference:

Richard D. Friedman, “Wigmore, John Henry,” in The Yale Biographical Dictionary of American Law (Yale University Press, 2009) (ed., Roger K. Newman)






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Saint John Roberts: Law Student, Priest, Martyr

One of the Forty Saints of England and Wales canonized in 1970 by Pope Paul VI bore the same name as the current Chief Justice of the United States. This earlier John Roberts was a Welshman, born and raised as a Protestant. He studied first at Oxford, but left without a degree to enroll at the Inns of Court to pursue a career in law. While subsequently traveling in Europe, he converted to Catholicism through the influence of one of his traveling companions.

Roberts took his new faith seriously, entering the college in Douai, the study hall of the English martyrs, which enrolled 160 of its seminarians in the scroll of martyred Catholic priests and lay persons executed under the reign of Queen Elizabeth I.

Once again, as had been the case at Oxford, Roberts left Douai before graduation to pursue a vocation with the Benedictine Order. He went to Santiago de Compostela in Spain to complete his studies, and was ordained a priest. After his profession, he left for England at the end of 1602. For the next eight years, Roberts was engaged in a cycle of serving English Catholics, being caught, arrested, sent to prison, or banished to the continent. In all, Roberts was exiled from England four times. After his third banishment, he returned to Douai, where he started a Benedictine house, which later became the Monastery of  St. Gregory in Douai.

After returning to England in 1607, Roberts was caught yet once again, and imprisoned. Keeping his lucky streak alive he escaped, but was recaptured. He was able to avoid execution only through the efforts of the French ambassador, and was banished from England once again.

When he again returned to England he was recaptured, and tried and convicted of the capital crime of ministering as a Catholic priest in England. As with many of the other Catholic martyrs of England and Wales, he was hung drawn and quartered. His execution on December 10, 1610, occurred almost eight years to the day that he first reentered England as a Benedictine Catholic priest. His body was sent to St. Gregory’s Monastery in Douai for burial. He was 35 when he died.

Roberts’ fascinating story has several important lessons. Here are two of them: First, we see the importance of personal witness and friendship in evangelization efforts, for his conversion to the Catholic Faith was a direct result of the example of his unnamed Catholic traveling companion with whom he toured Europe after his time at the Inns of Court. Second, Roberts’ life of service as a priest and his resulting gruesome martyrdom provides another example of the strong faith and fruitful service of Catholic converts.

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