Who Was Gov. Lynn Joseph Frazier?

During the recent Wisconsin gubernatorial recall election, commentators frequently noted that the effort to remove Governor Scott Walker from office was the third attempt to recall a governor in American history. Less frequently mentioned were the names of Walker’s two unfortunate predecessors, Gray Davis of California and Lynn Frazier of North Dakota.

Davis is by far the more recent of the two, and many Wisconsin voters probably remember his 2003 recall, which led to the election of the “Governator,” Arnold Schwarzenegger. Frazier, on the other hand, appears to be a virtually forgotten historical figure.

This is unfortunate because the story of Frazier’s recall and his subsequent career is one of the most fascinating chapters in American political history.

In 1921, Frazier became the first American governor to be removed from office through the mechanism of the Progressive Era reform, the recall. Although many of the advocates of the recall saw it as a useful tool against corruption, neither Frazier nor Davis (or for that matter, Walker) were targeted because of personal corruption. While Davis was removed for what was widely believed to be the mismanagement of the California economy, Frazier, like Walker, drew the ire of opponents primarily because of the supposedly radical nature of the policies that he had implemented after winning office.

While Davis was a Democrat, Frazier and Walker were both Republicans, but the similarity between the two men ends there. Walker has been strongly associated with the right wing of the Republican Party and has become something of a darling of the Tea Party Movement. In his time, Frazier was identified with the Progressive wing of the Republican Party and was regularly accused of being sympathetic to socialism, charges that Frazier did not necessarily deny.

Lynn Joseph Frazier was born in 1874 in Minnesota, but when he was six years old his family staked out a homestead in northeastern North Dakota, near the town of Hoople. Other than the years spent in college and in Bismarck and Washington as an elected official, Frazier lived on this farm throughout his life.

After graduating from nearby Grafton High School in 1892, Frazier obtained a teaching certificate from Maryville Normal School in 1895, and for the next two years combined careers in public school teaching and farming. However, in 1897, he enrolled at the University of North Dakota with the intention of becoming a physician.

At UND, he played on the football team and earned a bachelor’s degree in 1901. Unfortunately, his plans to study medicine had to be abandoned, after the deaths of his father and older brother required him to return to the family farm. He married shortly afterwards, and he and his wife had five children. For the fourteen years between 1902 and 1916, Frazier devoted his efforts to agriculture.

However, concern over the fairness of the policies of the North Dakota state government led him to become involved in the Nonpartisan League, a political movement begun in 1915 by North Dakota farmers who felt that they were being exploited by railroads, Wall Street, and out-of-state corporations. With intellectual ties to both the Populist Party of the 1890’s and the American Socialist Party, the Nonpartisan League sought to use the power of the state to protect the interests of farmers and workers.

Unlike the Populists and Socialists, the members of the Nonpartisan League decided not to organize a third party, but instead sought to take control of the North Dakota Republican Party, which had been the traditional political home of many of its members. In 1916, the party chose the 42-year old Frazier as its candidate for governor, primarily because it wanted to run “a real farmer” and not a lawyer or professional politician for the state’s highest office.

In his first run for political office Frazier entered and won the Republican gubernatorial primary, defeating the incumbent Republican, Howard Wood. In the ensuing general election, he was elected to a two-year term as governor with an overwhelming 79% of the popular vote. In the same election, the Nonpartisan League took control of the lower house of the North Dakota legislature and came close to taking control of the Senate as well. Also elected in 1916 was the Nonpartisan League candidate for Attorney General, William Langer.

In 1918, Frazier was reelected by a comfortable margin (receiving 60% of the vote) as the League took control of the Senate as well as the lower house. At this point, the Nonpartisan League was able to enact its agenda into law. Under Frazier’s direction North Dakota established a state-owned grain elevator, a state-owned Bank of North Dakota, and made plans for a state-owned railroad. (The grain elevator, the North Dakota Mill and Elevator, consisted of seven milling units, a storage elevator, and a warehouse and, at the time that it opened, was the largest milling operation in the United States.)

In addition, the legislature approved women’s suffrage, adopted a graduated income tax, created a state hail insurance fund and enacted a workers compensation law. Somewhat ironically, it also adopted a provision allowing for the recall of elected officials.

Unfortunately for Frazier and the Nonpartisan League, the bottom dropped out of the North Dakota economy at the end of the 1910’s. Fueled by the general deflation in commodity prices that occurred in the aftermath of World War I, agricultural income declined significantly in the state, and the process was further aggravated by the onset of the drought that would plague the states of the Great Plains for more than a decade.

Although many North Dakotans blamed the state’s Nonpartisan League government for the economic downturn, the reforms of the Nonpartisan League remained popular with North Dakota farmers. In spite of growing criticism, Frazier was elected to a third term in 1920, although his percentage of the popular vote fell to just 51%.

By 1921, the situation seemed dire. A shortfall in tax revenue forced the Frazier Administration to borrow money to cover the cost of government, but the state’s private banks refused to assist the state government in the refinancing of the debt.

Furthermore, the Nonpartisan League’s relative lack of political experience made its efforts to deal with the economic crisis seem clumsy and inept, and many of the state’s newspapers turned against Frazier and the party. When it became apparent that the state-owned Bank of North Dakota was bordering on insolvency, Frazier’s opponents began to campaign for his removal.

The recall event was led by the North Dakota Independent Voters Association, which had been organized in 1918 by ousted Republican state representative E. E. Everson as a means for conservative Republicans and Democrats to join forces against the Nonpartisan League. In a campaign that blamed Frazier for the state’s economic woes and which highlighted his anti-war stance during World War I, Frazier was voted out of office and replaced by Republican and Independent Voters Association member Ragnvold A. Nestos. (Nestos had beaten out former Attorney General William Langer who had also sought to challenge Frazier for the governorship. Langer had been dropped from the Nonpartisan League ticket in 1920 because of his refusal to support certain of the movement’s policies.)

The October election was close, but the conservative challenger Nestos edging Frazier by a margin of 4000 votes (111,000 to 107,000). Less than a month later, Nestos assumed the office of Governor.

In addition to Frazier, also removed from office were new state Attorney General William Lemke and Commissioner of Agriculture John Hagan. With Frazier, the two men made up the North Dakota Industrial Commission which operated as a board of directors for the new state-owned businesses.

The recall of Frazier, Lemke, and Hagan did not turn out to be as devastating a defeat for the Nonpartisan League as it probably seemed in October of 1921. Nestos, the new governor, did not attempt to dismantle the state bank and grain elevator, as many of those in the Independent Voters Association had hoped, but instead committed himself to returning them to full operation. Moreover, in other areas, Nestos continued the reform efforts begun by Frazier, as a state registry of births and deaths and a state health department were both created during his governorship.

Nor was the recall the end of Frazier’s political career. The following year, he brashly challenged incumbent United States Senator Porter J. McCumber in the Republican Primary. Although McCumber had represented North Dakota in the Senate since 1899 and was Chairman of the powerful Senate Finance Committee, Frazier bested him in the Republican Primary and then won election to the Senate in November. He would also be reelected to the Senate in 1928 and 1934.

In 1932, he was joined in Congress by his former Attorney General William Lemke, and the two were the sponsors of the controversial Frazier-Lemke Farm Mortgage Act of 1934, which was enacted by Congress despite the reservations of Franklin Roosevelt, who feared that it was too radical. (As feared, the act was declared unconstitutional by the Supreme Court the following year).

In addition, following the onset of the Great Depression in 1929, the Nonpartisan League regained political control in North Dakota under the leadership of former apostate William Langer, who had rejoined the Nonpartisan League in the late 1920’s. The Nonpartisan League programs of the early 1930’s, which included mortgage relief measures and a ban on corporate farming, were highly reminiscent of the programs of a decade earlier. Also returning to power in the 1930’s was Frazier’s former Agriculture Commissioner John Hagan who was reelected to his former post.

Although a Republican senator, Frazier generally supported the domestic programs of the New Deal. However, he bitterly opposed the idea of U.S. involvement in the Second World War and was an early critic of Roosevelt’s foreign policy.

Frazier somewhat unexpectedly lost his Senate seat in 1940, when he was defeated in the Republican primary by his sometimes rival William Langer who went on to win the seat in the general election. Langer’s decision to challenge Frazier appears to have been more personal than political, as the two men largely saw eye-to-eye on most issues. (If anything, Langer, who served in the Senate until his death in 1959, was even more of an isolationist than Frazier, and in 1945 was one of only two Senators to vote against the United States ratification of the United Nations Charter.

After leaving the Senate, Frazier returned to North Dakota, where he lived until his death in 1947. Only time will tell if the post-recall career of Scott Walker turns out to be as fascinating as that of Gov. Lynn Frazier.

This is a picture of Lynn Frazier as an adult. When he was elected Governor at age 42, the University of North Dakota student newspaper described him as “a physically rugged man, a bit portly and quite bald.”

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Punishing Paterno

For the past several days, sports journalists, the callers to sports talk radio shows, and just about everyone else has weighed in on the appropriate way to punish Penn State for its failure to disclose the sexual crimes of assistant football coach Jerry Sandusky.

As the report prepared by former FBI director Louis Freeh makes clear, the late Joe Paterno, the long-time head coach of the Nittany Lions, was aware of Sandusky’s crimes, at least since 1998, and took numerous steps to prevent them from coming to light. Paterno passed away shortly after he was fired last fall when the enormity of Sandusky’s crimes was finally brought to light.

The current debate revolves around the appropriate penalty for Penn State for the misfeasance of Paterno and other university officials. Much of discussion has involved the question of whether or not Penn State is an appropriate candidate for the NCAA “death penalty,” i.e., the elimination of its football program for a period of years. Technically, this penalty is available only for schools that were already on NCAA probation, which Penn State was not; moreover, as the Journal Sentinel’s Michael Hunt  and others have pointed out, draconian prospective punishments would most directly harm current players and new coach Bill O’Brien and his staff, none of whom were in any way responsible for the scandal.

I would like to propose the following as an appropriate punishment:

(1) Require Penn State to forfeit all its football victories since 1998 (or whenever Joe Paterno first learned of Sandusky’s crimes and decided not to report them). This would have the effect of removing Paterno’s name from the top of the list of college football coaches with the greatest number of victories. No longer would his name be in any way associated with the concept of coaching excellence, and it would be a meaningful punishment, especially for someone who is already dead.

(2) Require Paterno’s family to repay the more than $5 million dollar “retirement package” that Paterno negotiated while he was knowingly covering up Sandusky’s transgressions. The idea that the university is contractually obligated to make such payments is absurd, as is the idea that it would have agreed to such an arrangement had Paterno revealed that he had been covering up the heinous crimes of his pederast pal for more than a decade. The money can be used to support the victims of Sandusky’s crimes and Paterno’s indifference.

(3) Tear down the statue of Paterno that sits outside Beaver Stadium, the Penn State football field. If Paterno’s supporters in positions of power refuse to do so, then perhaps the good people of State College, Pennsylvania, will be inspired by the example of the residents of New York City in 1776, who on their own and in defiance of formal authority toppled the equestrian statue of King George III on Bowling Green and melted it down into slag.

 

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John Wesley Hardin’s Character and Fitness for the Practice of Law

Every state requires would-be lawyers to prove that they possess the requisite character and fitness to practice law. Usually, this has to be established before a student can take the state bar examination (or, in Wisconsin, be admitted pursuant to the diploma privilege).

While denial of bar admission on this basis alone is a fairly infrequent occurrence, it does happen. In a widely reported incident in January 2011, the Ohio Supreme Court denied a graduate of Ohio State University Law School the right to take the Ohio bar examination because he had accumulated too much student debt and had made no effort to figure out a plan for repaying what he owed.

Perhaps the most remarkable example of someone’s managing to pass the character and fitness portion of the bar admission process in American history came in 1895 when the notorious Texas gunman John Wesley Hardin (b. 1853) was certified as meeting the requirement. The certification was made by a Texas circuit court judge slightly more than four months after Hardin had been released from prison. From 1878 to 1894, Hardin served 17 years of a 25-year prison in Texas’ notorious Huntsville Prison.

The son of a Methodist minister who was named for the founder of his father’s denomination, John Wesley Hardin compiled an impressive record of carnage and mayhem in his early years. He stabbed a fellow classmate in elementary school (apparently in self-defense) in a dispute over the authorship of schoolhouse graffiti that insulted the purity of a female classmate, and at age 15 (in 1868), he killed an adult ex-slave who had sought revenge against Hardin after losing a wrestling match to him. The killing occurred in Texas during the Congressional phase of Reconstruction, and the pro-Union authorities dispatched three United States soldiers to arrest the former Confederate sympathizer. (Although John Wesley Hardin was not quite 12 when the Civil War ended, the senior Hardin had been a slave-owning minister who loyally supported the Confederacy during the war.)

Rather than submit to arrest, Hardin managed to shoot dead all three soldiers. After this incident, he became a fugitive, travelling throughout the southwest and frequently working in the cattle industry, as either a rustler or a trail boss.

By the time he was finally arrested in 1877 by Texas Rangers, Hardin claimed to have killed 42 men. (Others claimed that Hardin was prone to exaggeration and that the actual number was closer to 27.) Despite his reputation as the “most dangerous man in Texas,” Hardin insisted that he had never killed anyone without provocation. As the Texas Court of Appeals noted in 1997 (see below), Hardin frequently stated that “he had never killed anyone who didn’t deserve to be killed.”

Hardin was finally convicted by a jury of second murder in the killing a Deputy Sheriff named Charles Webb, and in 1878, he was sentenced to 25 years in prison.

After several unsuccessful efforts to escape from prison, Hardin embraced a more contemplative life style. He began to study, first theology, and later law, on his own. His interest in theology he clearly got from his father, and his interest in law may have stemmed from his many run-ins with the authorities as well as his own case, John W. Hardin v. State (1878), in which he unsuccessfully tried to have his second-degree murder conviction overturned on appeal.

While behind bars, Hardin appeared to repent of his past sins and eventually became the superintendent of the Huntsville Prison Sunday School. He also suffered from poor health while in prison, and in 1892, his long-suffering wife passed away with her husband still incarcerated.

Growing sympathy for the apparently reformed Hardin, who had become an important part of Texas folklore while in prison, led to his early release in February, 1894, and to his receiving a full pardon from Texas’ progressive governor, Jim Hogg (the father of Ima Hogg), the following month.

As a free man, Hardin decided to embark on a career in law. In July 1894, he was certified as eligible to practice law—presumably because of his repentance of his past ways while in prison. Although he had accidentally killed a Mexican shortly after his release from prison, the man’s death was attributed to a practical joke gone wrong and the unfortunate incident was apparently not deemed sufficient to raise doubts about Hardin’s fitness to practice law. He passed the oral Texas bar examination (which was famously easy) and began the practice of law, initially in his home town of Gonzales, Texas.

Unfortunately, Hardin’s career as a lawyer lasted only a little more than a year. While there is little surviving evidence of his actual law practice, he appears to have concentrated, not surprisingly, on criminal defense work.

Shortly after his admission to the bar, he did manage to marry a 15-year old girl named Callie Lewis, but that relationship apparently did not work out, and a few months later Hardin relocated his law practice to El Paso with his new bride remaining behind in Gonzales. (Callie was actually one year older than Hardin’s first wife Jane Bowen was when he married her in 1872.)

In the summer of 1895, Hardin got into a dispute with an El Paso constable who had arrested one of Hardin’s female friends for brandishing a pistol in public. Hardin apparently humiliated the lawman, and on August 19, 1895, while playing dice in a saloon, Hardin was fatally shot in the head by the arresting officer’s 56-year-old father, John Selman, Sr., a lawman and a notorious gunfighter in his own right.

(As with many of the facts of Hardin’s life, there are conflicting accounts. An alternative version of the story of his death has it that Hardin fell in love with the wife of one of his clients and hired Selman, Sr. to murder the client. When he did, but then was not paid for the act by Hardin, he extracted his revenge by murdering his employer in the saloon. Typical of the history of the Wild West, only the Great Cowboy in the Sky knows for certain what really happened.)

Selman was tried for Hardin’s murder, but the jury was unable to reach a verdict. He was scheduled for a second trial, but before that happened Selman, Sr. was killed by U.S. Marshall George Scarborough, almost exactly a year to the day after Hardin’s death.

Hardin’s autobiography was published posthumously in 1896, which portrayed its subject as a good man, willing to stand up against those who sought to do harm to him and his friends. A century after his death, Hardin was back in court, as a group of his descendants (through his first wife) sought to have his body disinterred from his El Paso grave so that it could be taken back to Gonzalez County, Texas, where he had lived much of his life. They were opposed by a group of historically-minded El Pasoans who sought to keep the grave, which had become something of a tourist attraction, in the famous west Texas town. See Billings v. Concordia Heritage Ass’n (1997). To date, Hardin still rests in El Paso.

Bob Dylan’s iconic song, “John Wesley Harding” is based on the life of the gunfighter-turned lawyer John Wesley Hardin. In the song, Dylan accepts Hardin’s own account of himself as a good citizen who was more sinned against than a sinner: As Dylan sings, “He was never known to hurt an honest man.” Why Dylan, famous for dropping “g”s left and right in his songs, decided to add a “g” to Hardin is one of the many mysteries in the work of the troubadour from Hibbing. The song also makes no mention of the fact that Hardin ended up as a lawyer.

The legal profession is sometimes surprisingly forgiving of the past indiscretions of would-be lawyers, especially if they are candidly willing to admit to past wrong-doing. However, it is safe to say that even in the more relaxed climate of today a record of 42 prior homicides—by someone not wearing a military uniform– would almost certainly be viewed as disqualifying, no matter how much the aspiring barrister may have cast aside his or her old ways.

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