Kaskel’s Chutzpah
By Gary Stein
“Your people must leave all the villages,” the government official barked. “The district must be emptied. I have an order here!” With that command begins the expulsion of the Jews from the town of Anatefka in The Fiddler on the Roof. This fictional scene of Old World anti-Semitism is instantly recognizable to millions of Americans and, especially, American Jews.
Yet not many Americans, and probably not many American Jews, are aware of a strikingly similar real-life instance of anti-Semitism that took place on American soil. During the Civil War, Union General – and future President – Ulysses S. Grant issued General Orders No. 11, expelling “[t]he Jews, as a class” from a military district comprising portions of Kentucky, Tennessee and Mississippi. Like the expulsion order in The Fiddler on the Roof, General Orders No. 11 was directed at all Jews indiscriminately, solely because they were Jews. There is one notable difference: The Jews of Anatefka were given three days to gather their belongings and leave. General Grant gave the Jews of the Department of the Tennessee only twenty-four hours to comply with his order.
In When General Grant Expelled the Jews, Brandeis University Professor Jonathan D. Sarna has popularized the little-known story of General Grant’s infamous 1862 order, just in time for its sesquicentennial anniversary. Oddly enough for a chronicle of “the most notorious anti-Jewish order by a government official in American history,” this is an inspiring story with a feel-good ending. The reason Grant’s order has garnered so little historical attention is that it had so little effect. The order was rescinded almost immediately by President Lincoln; it was resisted by many Union officers in the field during its brief existence; and it was generally reviled by the press and politicians. For years General Orders No. 11 hung like a political albatross around General Grant’s neck, undermining his presidential ambitions. Grant himself later condemned it, describing it as “a source of great regret” and rationalizing it as having been issued “without any reflection.”
As President, Sarna writes, Grant “sought to atone for General Orders No. 11,” for instance by appointing Jews “to government positions they could never have aspired to before.” When Russia sought to expel thousands of Jews from their homes in 1869, President Grant lent a sympathetic ear to protests from American Jewish leaders and publicly denounced the Russian action. The author of General Orders No. 11 now exclaimed that “[i]t is too late, in this age of enlightenment, to persecute any one on account of race, color or religion.” Thus, instead of tainting the American tradition of religious liberty. Grant’s clumsy bigotry wound up confirming it, and solidifying the position of American Jews within it.
As Professor Sarna recounts, the short shelf life of General Orders No. 11 is due in no small measure to the vociferous protests made by the American Jewish community and, in particular, by a Paducah, Kentucky merchant named Cesar Kaskel. A 30-year old Jewish immigrant, Kaskel had faith that America was different from his native Prussia. When summoned by Paducah’s Provost Marshal on December 28, 1862 to receive news of his banishment, Kaskel “instantly decided to fight.” That same day – within a few hours of being served with the expulsion order – Kaskel, together with his brother and three brothers from another Jewish family, fired off a telegram to President Lincoln. Far from a diplomatically worded plea for mercy, the telegram forcefully proclaimed the Jews of Paducah “greatly insulted and outraged by this inhuman order, the carrying out of which would be the grossest violation of the Constitution, and our rights as good citizens under it.” The telegram asked Lincoln to take “immediate” action to countermand General Orders No. 11. In fact, as Sarna notes, the telegram repeated the word “immediate” three times in three sentences.
Failing to get an immediate response to his telegram, Kaskel set off for Washington in a steamship and distributed a broadside against General Orders No. 11 to the press, urging them to lend their aid “to blot out as quick as possible this stain on our national honor.” Arriving in Washington on January 3, 1863, Kaskel, with the assistance of a Republican Congressman, sought and received an immediate audience with President Lincoln (who had remained blissfully unaware of Grant’s order). Kaskel got what he came for. Lincoln immediately instructed General Henry Halleck, in charge of the Union Army, to revoke General Orders No. 11. Victorious, Kaskel went back home to Paducah (only to move, during the war, to New York City, where he opened a haberdashery shop).
The reaction of Kaskel and other American Jews contrasts sharply with that of the fictional inhabitants of Anatefka and the countless real Russian Jews who were the victims of actual expulsion orders in the nineteenth and early twentieth centuries. In Fiddler on the Roof, Tevye and his neighbors initially contemplate resisting the expulsion order; calls ring out to “defend ourselves,” “refuse to leave,” “fight!” But this talk quickly fizzles out into resigned acquiescence, after the sympathetic Russian official who delivers the order reminds them of the power of the Russian militia and army. The Rabbi counsels that they will have to wait for the Messiah someplace else, and the Jews of Anatefka console themselves by reflecting that “Anatefka hasn’t exactly been the Garden of Eden” anyway. An actual Russian rabbi of the time advised Jews to be “as quiet as water and lower than the grass.” Such submissiveness came under withering attack from within the Russian Jewish community in the early twentieth century, most famously in Chaim Nachman Bialik’s poem, “In the City of Slaughter,” condemning the failure of the Jews of Kishinev to resist a particularly brutal pogrom in 1903.
Jewish passivity in the face of persecution has been called, derisively, the “galut mentality” – the feeling of powerlessness that comes with being a people in exile (galut) who are strangers in the nation in which they live. The nineteenth century Jews who resisted General Orders No. 11 were also in galut, in the Diaspora. Measured in temporal terms, they were less at “home” in America than the Russian Jews who had populated towns like Anatefka for generations. (Learning of the expulsion decree, an uncomprehending Tevye protests that Anatefka “has always been our home.”) By contrast, Kaskel, who had emigrated to the United States in 1858, was a relative newcomer – Paducah, Kentucky had been his home for only four years.
Moreover, the conditions for resistance were far from optimal. American Jews at the time represented a tiny minority and did not possess significant political influence. Although swelled by waves of immigration during the 1840s and 1850s, the ranks of American Jews still numbered only about 150,000 persons in 1860, about one-half of one percent of the total population. There were no high-level Jewish officials in the Lincoln Administration, no Jewish federal judges, and only one Jewish member of Congress (out of more than 230). Further, the United States was in the midst of a bloody Civil War, its future hanging in the balance. Already known as one of Lincoln’s few generals who could actually win a battle, Grant claimed the expulsion was necessary to clamp down on smuggling that was hampering the war effort. He was about to launch the Vicksburg campaign, which would cost the lives of tens of thousands of Union soldiers. The Department of the Tennessee was under martial law. If there ever was a time for Jews to not rock the boat and to submit to an odious decree under the influence, or the excuse, of the galut mentality, this would appear to have been it.
The intriguing question that Sarna’s book raises is, why didn’t they? Their actions cannot be viewed, in the American context, as aberrational. In an eerie historical parallel not mentioned by Sarna, a very similar scene had played out just a few months before in Confederate territory. On August 30, 1862, the town of Thomasville, Georgia, gripped by fear of an economic crisis and a Union attack, issued a resolution directed at the “class of German Jews, located among us” who were allegedly issuing counterfeit currency and extorting high prices for scarce goods. The Jews were ordered to leave Thomasville within 10 days, and no other Jews were allowed to settle in the town. A “Committee of Vigilance” was appointed to oversee the expulsion.
As with General Orders No. 11, the Thomasville resolution was met with furious and organized Jewish resistance. The German Jewish community of nearby Savannah, as well as the German Jewish members of two Georgia infantry regiments, issued angrily-worded public denunciations and advised Jews to cut their ties to Thomasville and supporters of the expulsion. In the end, the Thomasville anti-Semites backed down: the Jews were not expelled, and there were no lasting consequences for Jewish economic success or social integration in the town. The experience confirmed for one of the protest leaders, 23-year old Charles Wessolowsky – who, like Cesar Kaskel, had emigrated to the United States from Prussia four years earlier – that “the Jews in America could combat hatred whenever and wherever it reared its ugly head.”
If American Jews were rejecting the accommodationist policies inherent in the galut mentality, it may be because they were reinventing the concept of galut itself. As Israeli Professor Ofer Shiff has explained, American Jewish leaders of the mid-nineteenth century, particularly in the emerging Reform Judaism movement, rejected “the inherent incompleteness of life in galut” as traditionally understood, with its hope of ending the Jews’ “alien status” by returning to the “Old Zion,” a Jewish state in Palestine. Instead, these Jews heralded America as a “New Zion,” where Jews not only could freely practice their religion without interference, but also could shed their alien status. Not all felt this way; traditionalists like the Philadelphia Orthodox Jewish leader Isaac Leeser, notes Sarna, felt that Grant’s order made clear that American Jews “were still in exile, subjected, like all other Diaspora Jews, to the ‘decrees of those in power, who are not restrained by any feeling of humanity and justice from inflicting injury on us.’” Leeser seems to have missed the larger lesson – that “those in power,” supported by popular opinion, had stopped Grant’s decree before it could inflict great injury.
More attuned to the new American realities, Reform Judaism even advanced “a new definition of galut as a means to propagate the universal truths of Judaism to the rest of humanity.” The idea that God dispersed the Jews to all parts of the world as a “punishment for the sinfulness of Israel” was incorrect, explained Rabbi Isaac Mayer Wise of Cincinnati, the nation’s leading voice of Reform Judaism, in 1868; instead God saw it as an opportunity “for the realization of [Judaism’s] high priestly mission, to lead the nations to the true knowledge and worship of God.” Chicago Rabbi Bernhard Felsenthal echoed this sentiment four years later in explaining to Christians: “We do not look upon the dispersion as a curse; on the contrary, we regard it as a blessing – a blessing for you and all mankind.” In America, Jews even converted Christians to Judaism. As Professor Sarna described in an earlier work, this was nothing short of “remarkable” and alarmed Jews in Old World nations such as England, who refused to accept converts out of fear they would provoke reprisals.
Thus, the more fundamental question raised by the failure of General Grant’s expulsion order is, why did the galut mentality never take hold in America the way it did in Europe? Granted, the Jews who led the fight against expulsion in 1862 appear to have been relatively well-off, well-educated and well-integrated into mainstream society, certainly in comparison to the shtetl Jews of Eastern Europe. But the history of Germany Jewry in the nineteenth century belies any argument that affluence and assimilation guarantee acceptance. While striving towards greater civil rights and, ultimately, emancipation, German Jews were well aware of their outsider status, that “the Jew was always a Fremdkӧrper, an alien body within Germany.” Their reaction to outbursts of anti-Semitism during the nineteenth century can generally (if over-simplistically) be characterized as hunkering down and waiting for the storm clouds to pass.
It thus would be difficult, if not impossible, to attribute Cesar Kaskel’s courageous resistance to General Orders No. 11 to a mindset shaped by his prior Prussian experience. After all, Kaskel had fled Prussia partly because of, according to Sarna, its “severe legal limitations on where [Jews] could live and what kinds of occupations they could pursue.” Rather, Kaskel’s anti-galut mentality seems inescapably the product of the political and social conditions of America, which nurtured it and allowed it to bloom into an open, direct and unapologetic assertion of basic human rights in the face of official oppression. Kaskel felt strongly, writes Sarna, that that “in America opportunity was unlimited and freedom guaranteed to people of all faiths – Jews included.”
Lawyers (like me) instinctively credit the Constitution as the wellspring emboldening aggrieved minorities to speak up for themselves. And indeed, as noted above, Kaskel’s telegram to Lincoln specifically characterized General Orders No. 11 as a gross “violation of the Constitution, and our rights as good citizens under it.” Other opponents likewise denounced General Orders No. 11 not only as an affront to principles of humanity and religious liberty, but as a violation of law. Rabbi Wise of Cincinnati, who played a central role in organizing protest to Grant’s order, demanded that the order be rescinded based on the President’s oath “to enforce the laws” – meaning, presumably, the Constitution. A petition from the Missouri branch of the B’nai B’rith called upon President Lincoln, as “the Defender and Protector of the Constitution,” to annul the order and thus “protect the liberties even of your humblest constituents.”
Certainly the Constitution gave American Jews an important argument not available to those who had been, and would be, the victims of expulsion orders in Europe and elsewhere. Those in galut traditionally sought salvation in prayer, in an appeal to God to bring forth the Messiah and restore the land of Israel. In America, however, they could seek salvation in the nation’s founding document, which stood foursquare against religious discrimination. Despite his later claim that American Jews had not escaped exile, Isaac Leeser reveled in 1845 that in America “it matters not whether the majority be Christian or Jewish; the constitution knows nothing of either;” “in the fundamental charter of the United States, neither Christianity nor Judaism is mentioned by name;” “[b]oth Jews and Christians . . . were placed upon such an equality that a preference was given to neither.” Anchoring assertions of Jewish equality in the Constitution, universally embraced throughout American society as the definitive expression of the nation’s most sacred political values, gave those assertions unquestionable legitimacy.
And yet constitutional law played essentially no role in the fight against General Grant’s expulsion order. From the perspective of the early twenty-first century, what is perhaps most striking about that fight is the weapon that was not used. If something similar were to happen today, opposition to it surely would not rely simply on supplication to Presidential authority. The principal means of resistance would be a lawsuit in federal court, seeking first an emergency restraining order and then a permanent injunction adjudging the order unconstitutional and barring its enforcement. No similar legal strategy was employed in 1862. No legal strategy was even contemplated, so far as appears from the historical record. Notably, while the appeals to President Lincoln invoked the Constitution in a general way, none of them specifically cited the First Amendment guarantee of religious liberty or the Fifth Amendment right to due process, or articulated any recognizably legal argument. For his part, Lincoln did not seek the advice of government lawyers before deciding whether to sustain Grant’s order. His Attorney General, Edward Bates, upon forwarding the B’nai B’rith petition to the President, expressed “no particular interest in the subject.”
Of course, President Lincoln’s swift reversal of General Grant’s order obviated any need for litigation. But assume that Lincoln had instead backed Grant, and the Jews had mounted a legal challenge to General Orders No. 11. Would it have succeeded? There is little reason to believe that it would have. The order was a military measure, whose justification was the need to inhibit the flow of smuggled goods into the Confederacy, which was undermining the Union’s efforts to suppress the rebellion. As such, had it come before a federal court, it would have been reviewed with great deference. Antithetical to our core constitutional values as the forced expulsion of an entire religious group may seem, the federal judiciary’s track record during the Civil War was far from stellar in safeguarding even core constitutional rights from Executive Branch intrusions justified on the basis of military necessity.
For example, in April 1863, Union General Ambrose Burnside, the commander of the Department of the Ohio, issued General Orders No. 38, specifically targeting political speech in opposition to the war. It announced that “[t]he habit of declaring sympathies for the enemy will not be allowed in this Department” and that violators “will be at once arrested.” After giving a speech the following month describing the war as “wicked, cruel, and unnecessary” (and attacking General Orders No. 38 as a “base usurpation of arbitrary authority”), anti-war Democrat Clement Vallandigham, a former congressman, was arrested on Burnside’s orders, and tried and convicted by a military tribunal. Applying for a writ of habeas corpus, Vallandigham’s lawyers argued that his arrest and prosecution violated bedrock constitutional guarantees to, among other things, due process of law, the right to indictment by a grand jury, and the right to a public trial by an impartial jury. They also argued that Vallandigham’s conduct was constitutionally protected speech under the First Amendment.
These arguments, impressive as they may seem, got Vallandigham exactly nowhere. The federal court denied his application, holding that it lacked authority to issue a writ of habeas corpus for a person in military custody, that it was inexpedient to interfere with the exercise of military power, and that constitutional rights normally inviolable must yield during wartime. Unable to “shut its eyes to the grave fact that war exists,” the court found in the Constitution “such a capacity of adaptation to circumstances as may be necessary to meet a great emergency,” adding that it was “not a time when any one connected with the judicial department” should “embarrass or thwart the executive in his actions to deliver the country from the dangers which press so heavily upon it.”
An even more extreme viewpoint was expressed in 1866 by a different federal judge, who wrote that it was “useless to speak of law – meaning thereby the laws of peace – when [a] state of war actually exists.” In a state of war the law “refrains from speaking, and is, of its own accord, silent and unenforced.” Even the Constitution, the supreme law, is “still law,” and thus powerless to protect even religious liberty during a state of war: “The Constitution guarantees to every citizen ‘the free exercise of religion;’ but the state of war prevails, and the free exercise of religion is gone.”
Nor should such judicial diffidence be deemed a product of the uniquely existential threat posed by the Civil War. During World War II, the federal government issued an expulsion order of a similar nature to General Orders No. 11 but on a much larger scale – the forced resettlement and internment of more than 100,000 Japanese Americans solely because of their race. The Supreme Court, in Korematsu v. United States, nevertheless upheld the measure as constitutional. Projecting Korematsu’s reasoning back in time, it is easy to imagine how the Supreme Court would have made short work of an imaginary lawsuit by Cesar Kaskel challenging the constitutionality of General Orders No. 11:
[Kaskel] was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with [the Confederate States], because the properly constituted military authorities . . . felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of [Jewish] ancestry be segregated from [the Department of the Tennessee]. . . . There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short.
This is especially true when one takes into account the fact that Kaskel’s lawyers would not even have had at their disposal arguments based on the Equal Protection Clause – which was not adopted until 1868 – and the doctrine of strict judicial scrutiny, inspired by that Clause, for laws discriminating on the basis of race, religion or nationality.
When we search for reasons why Cesar Kaskel and the American Jewish community were able to free themselves of the galut mentality, we must look beyond the shibboleth that America is a nation governed by the rule of law and beyond any sense of empowerment that American Jews may derive from their ability to assert legally enforceable rights against the state. Far more fundamental was their conviction that American Jews, just as much as every other American, were part of the state. Kaskel’s letter to the press denounced Grant’s order as a “stain on our national honor,” a revealing choice of words suggesting that, in Kaskel’s view, America belonged to Jews as well as to Christians. That sense of belonging is something that Jews in Kaskel’s native Germany, despite their yearnings, could never truly attain, unless they stopped being Jews and converted to Christianity, as thousands of them did in the nineteenth century (only to discover that even then, they still stood apart).
To be sure, German Jews, in 1871, eventually achieved full emancipation under the unified Germany’s new constitutional charter. But that fact highlights the limits of law, even constitutional law. Emancipation in Germany did not flow from a doctrine of natural rights that recognized Jews’ innate humanity as entitling them to legal equality. It was, instead, based on a “quid pro quo” that demanded Jews abandon their supposedly degenerate culture and economic practices and imitate German manners. Moreover, vast segments of Christian society in Germany bitterly opposed emancipation, continuing to view the Jews in medieval terms as irredeemably parasitical and inhuman, as was also true in France, despite the granting of full legal equality to Jews in the French Revolution. Formal legal emancipation proved woefully insufficient to forestall the tragic tsunamis of anti-Semitism that swept Germany and France in the late nineteenth and twentieth centuries.
A comparable point can, of course, be made about the experience of American blacks. After the Civil War, the former slaves attained full legal equality under the Constitution with the adoption of the Thirteenth, Fourteenth and Fifteenth Amendments. But that did not stop Southern whites from inflicting horrific acts of violence upon them. As this history underscores, there is a dialectic between majority antipathy and minority assertiveness. It is not easy for the minority to resist when resistance may awaken murderous impulses on the part of the majority. Whatever hesitations American Jews may have had about challenging General Orders No. 11, concern for their physical safety does not appear to have been one of them. Anti-Semitism has a lengthy, ugly and even occasionally deadly history in America, especially in times of stress such as the Civil War. But it has been different in kind from the virulent strains of eliminationist anti-Semitism found in Europe, where “everybody had the disappearance of the Jews on the agenda,” whether through expulsion, assimilation, conversion or extermination.
European anti-Semitism was molded by medieval corporatism. Jews were viewed as a corporate body “‘placed outside the framework of general society,’“ which “encouraged Christian ruling authorities to assign collective responsibility, and even collective punishment, to an entire Jewish community for the real or imagined hostile acts of individuals.” Outbreaks of anti-Semitism in Europe were often fueled by this belief that Jews bore collective responsibility for the misdeeds of its members (a belief ultimately traceable to the charge of collective Jewish guilt for the crucifixion of Christ). The conditions existed for this perverse logic to be applied in the Department of the Tennessee in 1862; some Jewish merchants unquestionably were involved in illicit smuggling activities (as were some Christian merchants). As Professor Sarna notes, General Orders No. 11 hearkened back to the “older, corporate view of the Jew common in the Middle Ages,” treating Jews “as a class” rather than as individuals. Yet in the highly individualistic and decidedly non-corporatist culture of America, this concept of collective responsibility could not gain traction. President Lincoln himself reportedly explained that he had revoked Grant’s order because “I do not like to hear a class or nationality condemned on account of a few sinners.”
America, “the first nation in the world to base its nationhood solely on Enlightenment values,” as Gordon Wood has described it, never passed through a medieval or feudal phase. Therein, perhaps, lies the answer to why American Jews were able to view themselves – and assert themselves – as full-fledged members of American society. “The great advantage of the Americans,” Alexis de Tocqueville famously observed in Democracy in America, “ is that they have arrived at a state of democracy without having to endure a democratic revolution; and that they are born equal, instead of becoming so.” Less familiar, but arguably equally insightful, is de Tocqueville’s observation in his immediately preceding sentence: “Democracy leads men not to draw near their fellow-creatures; but democratic revolutions lead them to shun each other, and perpetuate in a state of equality the animosities which the state of inequality engendered.”
To paraphrase de Tocqueville, the great advantage of American Jews is that they were born equal – or arrived equal, in the case of immigrants like Cesar Kaskel, Charles Wessolowsky and the real-life Tevyes driven away from their Old World homes by official edict. As a result, the anti-Jewish animosities engendered by centuries of bigotry and butchery, which continued to afflict European nations even after their democratic revolutions, simply never took root in the same way in the United States. Secure psychologically that the logic of American liberty and equality extended to them – and secure physically that they would not thereby precipitate a pogrom or an outbreak of mob violence – American Jews could feel free to fight back against anti-Semitism, even if that meant standing up to a prominent military commander in the nation’s darkest hour.
Gary Stein is a lawyer in private practice in New York City.