How Did We Get Here?

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Part Six of a Six Part series on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.

In an age where the presidential vote is relatively close, a two-party system dominates politics, and the average voter recognizes that voting for an independent/splinter candidate has no real shot at electoral success, is this really what the framers intended in 1787 when drafting the Constitution of the United States?

Doubtful.

Not only was the Electoral College system problematic almost from the moment it left the starting block, but the election process has grown more complicated, more winner-takes-all, and more divisive than perhaps the delegates could ever have imagined.

For instance, in 1797, Ththomas_jefferson_by_rembrandt_peale_1800omas Jefferson, the then-sitting Vice President, wrote a letter to his colleague, Edward Rutledge, in which Jefferson reported that the mood of the nation’s capital had become politically divisive:

“The passions are too high at present, to be cooled in our day. You & I have formerly seen warm debates and high political passions. But gentlemen of different politics would then speak to each other, & separate the business of the Senate from that of society. It is not so now. Men who have been intimate all their lives, cross the streets to avoid meeting, & turn their heads another way, lest they should be obliged to touch their hats. This may do for young men with whom passion is enjoyment. But it is afflicting to peaceable minds. Tranquility is the old man’s milk.” (Jefferson to Rutledge, June 24, 1797, in Jefferson, Papers, 29:456-57.)

Does Jefferson’s report of a political divide — in 1797! — sound familiar when looking at today’s election debate?

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The Teachings of Elections Past

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Category: Congress & Congressional Power, Constitutional Law, Election Law, Legal History, Political Processes & Rhetoric, Public
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john_quincy_adams_-_copy_of_1843_philip_haas_daguerreotypePart Five of a Six Part series on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.

In the run-up to Election Day, maps of the United States will be colored in as red or blue. This so-called “electoral map” is the focus of all the debate, particularly for the presidency, with pundits asking what color the “swing states” will shade. Of course, the maps don’t show green, purple, or even different tints of red or blue. There are only two colors, red or blue. So why is that?

Without getting too far in the weeds, as it were, and from a political science view, the shading is based on the “winner-takes-all” principle. One party wins and everyone else loses. When a party loses, that party is without representation. Weaker parties are pressured to join a more dominant party in hopes of gaining a voice. This leads to party-dominance. Voters learn that, because of party dominance, voting for a third party candidate is ineffectual to the result, and hence alignment into a two-party race between winners and losers.

And, in terms of the presidency, by devising a system of “electors” as opposed to popular vote, history teaches us that an indirect electoral-election scheme can lead to odd results.

The elections of 1876, 1888, and 2000 produced an Electoral College winner who did not receive at least a plurality of the nationwide popular vote. What did this mean? It meant that in 2000, Al Gore received 543,895 more popular votes than George Bush, yet lost the election. The same was true for Samuel J. Tilden (New York) losing to Rutherford B. Hayes in 1876 and Grover Cleveland (New York), the incumbent President, losing to Benjamin Harrison (Indiana) in 1888.

There is also tie-breaker history. Per the Twelfth Amendment, a candidate must receive an absolute majority of electoral votes (currently 270) to win the presidency. If no candidate receives a majority of electoral votes in the election, the election is determined by the House of Representatives. The House chooses the President from one of the top three presidential electoral vote-winners. (A run-off vote for Vice President belongs to the Senate.)

As to a run-off presidential vote, this has happened only once since 1804. Read more »

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The School Of Electoral College

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Part Four of a Six Part serwashington_constitutional_convention_1787ies on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.  Prior blog posts mentioned party-politics as having emerged during the Constitutional debate — in the framing days of the late eighteenth century, delegates began aligning along federalist and anti-federalist divides. Alignment shaped the compromise that became the Constitution of the United States, with the process of choosing the President — indirectly through electors — an example of compromise at work.

The compromised solution was complicated. Rather than allowing election by the populous or allowing Congress to choose the position, each state was given a number of “electors” and these electors would vote for the President.

Each state was left to determine the manner of selecting their electors, thus allowing the states a role in choosing the president. The electors would choose the president on the same day, all in an effort to even the playing field, as it were, in election and governance.

So how did it work, at least initially?

It was a problem.

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Whom Do I Want As My King?

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2014_1006_1024px-mount_rushmore2_largePart Three of a series on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.  Prior blog posts discussed the lead-up to the Constitutional Convention of 1787 and provided context to the debate over the American system of government. Here is further context.  For a more in depth discussion and a great read — upon which much of this blog finds its genesis — look to Ray Raphael’s book Mr. President: How and Why the Founders Created a Chief Executive (2012).

I begin with the delegates. Think of it like this: If you were a wealthy American landowner in the late eighteenth century, and held a position of prominence for some time, you probably wanted to ensure that, whatever government governed, your status remained unchanged. Should not your vote count a little more than someone else? Can we really let the people select of our elected officials?

On these basic questions the delegates to the Constitutional Convention were either conflicted, or outright opposed. As Roger Sherman, the representative from Connecticut proclaimed, “The people immediately should have as little to do as may be about the government. They want information and are constantly liable to be misled.” On the flip side was Alexander Hamilton who touted the “genius of the people” in qualifying the electorate.

Basically, even if a Constitutional Convention delegate agreed to a national government and an “executive branch” to that government, he still had open questions as to what should it look like, how much power it would have, and who would decide the person/persons for such an office.

So how did the delegates get from point A to point B? First, the delegates took the unusual move of calling for secrecy in their debates, something unheard of then and which continues to be a source of confounding discussion even in today’s society; in 1787, and as often argued today, the delegates wanted the freedom to speak freely.

Second, the delegates used England’s King George III as a counter-point to an executive. They wanted no part of a monarchy, or despotic leader, yet needed the executive position to have some teeth so that it would be recognized internationally and complement intra-national needs. Read more »

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What Does It Take to be “United” As States?

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washington_constitutional_convention_1787Part Two of a series providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.

Anyone who has been part of a committee, whether it be in government, business, or even the local PTA, will recognize that the same discussion points come up over, and over, and over again. In the political realm, the issue is largely taxation. In the PTA, it’s fundraising. Between April 15th and the local bake sale, the same discussions are had, year after year after year.

So imagine yourself in May of 1787, at the Constitutional Convention. The topic de jure was the present form of government — the Articles of Confederation — and how to improve on what was, by then, government gridlock (sound familiar?).

Those in attendance had a choice of throwing the baby out with the bathwater, as it were, or improving upon what got them there.

In retrospect, the choice of what to do was clear — out goes the baby — but in 1787 it was as clear as mud.

Keep in mind, the Articles of Confederation were years (decades) in the making, and were fashioned with state-interests in mind. Essentially, the delegates needed to ask themselves who they wanted to govern: themselves as states or a national government with power over the states.

And as the days dragged on, and as the weather changed from comfortable to hot, so too did the debate over what to do, how to do it, and why. Read more »

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How Many Years Does It Take to Bake a Constitution?

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articles_of_confederation_13c_1977_issueAs the first Tuesday following the first Monday in November approaches — that is, National Election Day — the talking-head debate intensifies over candidates, politics and what is right/wrong with the American system of governance.  There is one missing piece to the debate — context — that is seldom discussed, or understood. Indeed, if the average voter dislikes the candidates and the election process (something I hear a lot), then it’s time to take a step back and look at the big picture question of how we got here. In what I hope will be a six part series, I will attempt to provide context to our system of government, our election process and, hopefully, a little history to evaluate and consider in your next candidate-debate.

Part One – How Many Years Does it Take to Bake A Constitution?

If you polled the average American citizen, asking if they heard of the Declaration of Independence, most would answer yes. The citizen might even know the year and date — July 4, 1776.

But ask the same citizen when the Constitution of the United States was adopted (which technically means when it was “ratified” by the States), and you’ll likely get a blank stare, an “I don’t know”, or a guess — likely July 4, 1776.

The correct answer to that question is: June 21, 1788. Read more »

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America’s First Law School

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V__9AECI had the opportunity in August to spend a day at the Litchfield Law School in Litchfield, Connecticut.  Although several universities enrolled students in law departments during the final decades of the eighteenth century, almost all lawyers of the period prepared for practice by completing apprenticeships in lawyers’ offices.  Attorney and Judge Tapping Reeve thought that education at a formal law school would be a better way for lawyers to prepare, and therefore he founded the Litchfield Law School in 1774.

More than 1,100 students attended the Litchfield Law School before it closed in 1833.  Two of Reeve’s students (Aaron Burr and John C. Calhoun) went on to become Vice President.  Fifteen of the students became governors.  Three of the students became Justices of the Supreme Court of the United States.  Twenty-eight students became United States Senators, and another ninety-seven served in the United States House of Representatives.  Clearly, the Litchfield Law School was important in educating and credentialing a significant portion of the era’s most accomplished lawyers. Read more »

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A Different Perspective on Sir Thomas More

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Obelisque_alexanderNext year is the quincentennial of the publication of Thomas More’s Utopia, and celebrations of the book and its author have already begun. More, of course, is a darling of Western culture and politics. He was canonized and is considered the patron saint of politicians and statesmen. Essayist C.K. Chesterton said that More may be “the greatest historical character in English history.”

It therefore comes as a bit of a surprise to learn that More also has a following on the political left. None other than Marx and Engels praised More’s thinking, and Lenin honored him by listing his name on a monument erected in Moscow’s Aleksandrovsky Gardens.

More’s description of an ideal society in Utopia is what leads to the leftist lionizing. His society has no private property, state ownership of the means of production, and extensive welfare programs for the poor and elderly. Because of these public policies, More seems to some to be a “proto-Communist.”

None of these policies are even remotely possible in the contemporary U.S., and the collapse of actual Communist regimes of the late-twentieth century is well-documented. However, More deserves credit for reflecting on what type of socioeconomic structure might produce what type of consciousness. More thought that the population of his utopian society would avoid alienation and adopt a genuinely social worldview rather than a greedy, self-interested individualism.

More was a dreamer. Yet his variety of dialectical materialism remains appealing 500 years after he teased it out – in Latin no less!

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The Initial Appeal of Chief Justice John Roberts’ Dissent in Obergefell v. Hodges

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Human Rights, Judges & Judicial Process, Legal History, Political Processes & Rhetoric, Public
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b599a34c0d512e42e3f5277e172bbebcd745dd98Rainbows abounded on the morning of Friday, June 26, 2015, when the United States Supreme Court held 5-4 that same-sex couples have a constitutional right to marry and a right to have their legal marriages recognized in every state.

The Court’s decision in Obergefell v. Hodges was not unexpected. The divide in the Court, too, was not unexpected: Justice Anthony Kennedy wrote the majority opinion for himself, Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Sonia Sotomayor.

(An interesting side note: Justice Kennedy, a 1988 Reagan nominee, has authored all four of the major SCOTUS cases on lesbian, gay, bisexual, and transgender (LGBT) rights: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and now Obergefall v. Hodges. As well, three of those cases were handed down on June 26Lawrence on 6/26/03; Windsor on 6/26/13; Obergefell on 6/26/15).

When I first read the Obergefell decision, I found myself skeptical. Make no mistake: I fully agree with and welcome the holding. However, I was concerned about the Court’s reasoning. My first thought, upon reading the opinion, was to wonder why the Court did not base its holding more on the Equal Protection Clause, like Judge Richard Posner did in his opinion in Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). That seemed to me to be the easiest argument. There is simply no compelling justification for the State to distinguish between opposite-sex and same-sex couples when it comes to marriage.

So, when I got to Chief Justice John Roberts’ dissent, it initially made some sense to me, and I could envision its appeal to many others. Read more »

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Stanley Kutler, American Legal Historian

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Stanley KutlerThe obituaries for Stanley Kutler, a retired University of Wisconsin professor who passed away on April 7, tended to stress Kutler’s large role in obtaining public access to the Nixon Watergate tapes. Only 63 hours of those tapes had been released before Kutler’s lawsuit against the National Archives and Records Administration, but his efforts resulted in the release of more than 3,000 additional hours. Kutler and other scholars were then able to use material on the tapes to detail the Nixon Administration’s frequent and sometimes shocking abuses of political power.

Unfortunately, the obituaries largely overlooked Kutler’s decades of extraordinary work as a legal historian. His numerous books and articles include Judicial Power and Reconstruction Politics (1969), Privilege and Creative Destruction: The Charles River Bridge Case (1971), and American Inquisition: Justice and Injustice in the Cold War (1984). All of these works explored specific cases in the context of broader historical movements. The facts and social complexities of the cases were always more important for Kutler than were the rules and corollaries spouted from one appellate bench or another.

Kutler’s work as a legal historian placed him at the center of the “new legal history” that emerged during the 1960s. Read more »

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A Rebellion of Giants: Dixon, Ryan, and Taming the Railroads in the Gilded Age

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Chief Justice Luther S. Dixon

Chief Justice
Luther S. Dixon

This is the fifth in a series of Schoone Fellowship Field Notes.

Eastern jurists such as John Marshall, James Kent, Oliver Wendell Holmes, and Benjamin Cardozo have received the lion’s share of attention from law professors and historians over the years. Two fellow giants from the Midwest, Michigan’s Thomas Cooley and Iowa’s John Dillon, have been relegated to comparative obscurity.

Cooley and Dillon played a central role in shaping the contours of modern American constitutional law. They forged their philosophies in the heat of two critical judicial debates over the role of railroads in American society. Two Wisconsin justices, Luther Dixon and Edward Ryan, were also leaders in those debates, and their contributions to American constitutional law deserve to be better known. Read more »

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Wisconsin: The Final Firework in the Antislavery Legal Movement

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Lemuel Shaw

Mass. Chief Justice
Lemuel Shaw

This is the fourth in a series of Schoone Fellowship Field Notes.

Putting Wisconsin’s antislavery heritage in perspective. Wisconsin takes great pride in its antislavery heritage, particularly the Northwest Ordinance (1787), which ensured that Wisconsin would be a free state, and the Booth Cases (1854, 1859), in which Wisconsin stood alone in defying the federal government’s attempt to turn northerners into slavecatchers. This pride is justified but needs perspective. When Wisconsin arrived on the American stage as a new state (1848), American slavery was two centuries old and the legal reaction against slavery had been underway for 70 years. The Booth Cases were important, but they were merely the final fireworks in the drama of American law and slavery. Read more »

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