Boden Visitor A Reminder of Marquette’s Connection to Charles Evans Hughes

This year’s Boden Lecturer, Prof. Thomas Merrill, is the Charles Evans Hughes Professor of Law at the Columbia University Law School.   In addition to providing insight in the fascinating Wisconsin case of Melms v. Pabst, his presence also reminds us of an important connection between the Marquette Law Review and Charles Evans Hughes.

Charles Evans Hughes (1862-1948) was one of the great luminaries of American Law.  He is the only individual to have served two separate stints on the Supreme Court (1911-1916 and 1930-1941, the latter as Chief Justice).  He also served as Secretary of State in the Harding and Coolidge administrations, and he and William Howard Taft are the only two men in American history to have both served on the Supreme Court and have been a major party nominee for president of the United States.  However, unlike Taft, who was elected president  in 1908, Hughes lost the presidential election of 1916 to incumbent Woodrow Wilson, although in terms of electoral votes, it was one of the closest elections in American History.  (Wilson won by an electoral vote margin of 277-254.  Had less than 2,000 Californians switched their votes from Wilson to Hughes, Hughes would have become the 29th president of the United States.)

Hughes’ connection to Marquette came shortly after the 1916 election.  Although Woodrow Wilson ran for re-election with the slogan “He kept us out of war”[World War I], barely a month after the beginning of his second term, the U.S. declared war against Germany and the other Axis powers.  The declaration of war led to a mobilization of the American economy under the direction of the national government that was without precedent in American history, and at least some observers questioned the constitutionality of the actions of the Wilson Administration and Congress.

By the summer of 1917, Hughes had returned to the private practice of law in New York City, but he quickly came to the defense of the policies of his former rival.  In an address entitled “War Powers under the Constitution,” delivered to the American Bar Association at its annual meeting on September 5, 1917, Hughes endorsed the broad interpretation of presidential power embraced by President Wilson.  The address was widely hailed by those who supported the American war effort and thousands of copies of the address were distributed to newspapers and other groups by the ABA.

The address was also published as the lead article in Volume 2, Issue 1 of the Marquette Law Review, which appeared only a few months after the address was first delivered. The law review had been founded only the year before, and the journal received a major boost in credibility and visibility with the presence of Hughes already famous address in what was only its third issue.

As the Law Review itself noted at the opening of the issue, “The Marquette Law Review starts its second year as a legal publication with a great deal more confidence than it did the previous year.”  Being able to attract contributors of the stature of Charles Evans Hughes was indeed a reason to feel confident.

How it was that the Marquette Law Review acquired the rights to be the only law review to publish Hughes’ address is not clear.  The Review itself revealed no such information, although in an editorial it did thank Hughes for granting it permission to publish the address.  None of Hughes’ biographers make any reference to a Marquette connection; however, one is tempted to speculate that the connection came through faculty member Carl Rix, who was the law review’s faculty adviser in 1917, and who was an active member (and a future president) of the American Bar Association.

While Rix may be the connection, he did not attend the 1917 ABA meeting which was held in Saratoga Springs, New York.  In fact, that year only two lawyers from Milwaukee, Edward Fairchild and W. A. Hayes, attended the annual meeting , and neither had any connection to the Marquette Law School.

It may simply have been that some enterprising member of the law review staff came up with the idea of contacting Hughes and offering to publish his address.

In any event, its publication brought the law review a great deal of attention, and forever established a linkage between Marquette and Charles Evans Hughes.

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Obama’s “Feminine” Communication Style

A few weeks ago, Kathleen Parker, a writer for the Washington Post, likened Obama to a woman because of his negotiation style, calling him the first female president. (See the article here.)  Confronted with crises and criticisms, our President hasn’t responded in the alpha dog style of many male politicians. Instead, he’s a listener and talks it out. Traditionally, according to Parker, these methods are exercised almost exclusively by women. While the author is quick to commend the President on this refreshing change from the norm, she also points out that his style, especially in response to crises like the BP oil disaster, may have decreased his effectiveness.  Does this mean that women, in negotiating and communicating in this talk-it-out method are also less effective? Or is that assessment only true of men who adopt that style? The article goes on to cite research from University of Minnesota Professor Karlyn Kohrs Campbell, who asserts that men can adopt feminine communication styles without the consequence of being labelled as ineffective. Parker, however, isn’t convinced that Obama hasn’t suffered for his adoption. 

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How Much Difference Does the Small State Advantage in the Electoral College Really Make?

EV_map_081104-1400ZOne of the many unusual features of the Electoral College established by Article II, Section 1, of the United States Constitution is the provision that specifies that each state shall have “a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

The one obvious consequence of this provision is to enhance the influence of the smaller states in the selection of the president.   Because of this provision, smaller states are disproportionately represented in the Electoral College.  For example, the 12 smallest states today—Alaska, Delaware, Hawaii, Idaho, Maine, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, Vermont, and Wyoming together account for only 17 (of 435) representatives in the House, or 3.9% of the total.  However, in the Electoral College, thanks to the “Senate bump,” the same states account for 41 electoral votes, or 7.6% of the total of 538.

Would the history of American presidential elections have been different, had this non-democratic element not been added to the Electoral College formula in 1787?  What if Electoral votes were calculated only on the basis of the number of representatives in the House of Representatives?  Have some presidential candidates been elected only because they captured the electoral votes of a disproportionate number of small states?

It turns out that the answer to the last question is yes, although the results of only three of the fifty-six presidential elections have been effected.  Not surprisingly, the three affected elections are also the three closest in American history.

The first was the Hayes-Tilden Election of 1876.  Widespread voter intimidation and corruption in the South made it impossible to determine which of the conflicting returns from South Carolina, Florida, and Louisiana were accurate, and Congress ended up establishing a special Election Commission composed of Senators, Representatives, and Supreme Court justices to sort out the mess.  Apart from the merits of the Commission’s decision, the official count produced the closest finish in history, with Hayes edging Tilden by a single electoral vote, 185-184.  However, Hayes carried 21 states to Tilden’s 17.  Had it not been for the assignment of two additional electoral votes to each state, Tilden would have prevailed, the rulings of the Electoral Commission notwithstanding, 150-143.

The second affected election occurred in 1916 when Democrat Woodrow Wilson ran for reelection against Charles Evans Hughes who stepped down from the Supreme Court to run for president.  In an election in which Wilson’s slogan was the ironic “He kept us out of war,” Wilson edged Hughes by a margin of 23 electoral votes, 277-254.  In sharp contrast to the late twentieth and twenty-first century pattern, the Republican Hughes’ support was concentrated in urban areas in the North and Midwest, while Wilson was strongest in the smaller states of the West and South.  Wilson ended up carrying 30 states to Hughes’ 18, and if the two additional votes were to be subtracted for each state, Hughes would have prevailed 218-217.

The third election was the 2000 presidential election in which George W. Bush defeated Al Gore, albeit not without great controversy, by a margin of 271-266 electoral votes.  (The total electoral vote was 537  because one Gore elector refused to cast his ballot.)  As in 1916, but with the parties switched, Bush carried most of the smaller states while Gore’s support was stronger in the larger, more urban states.  With the two electoral vote bump removed, Gore would have won 225-211.

If we view the “Senate bump” in the Electoral College as undesirable, nothing short of a constitutional amendment can completely remove it.  A dramatic increase in the size of the House of Representatives, which is within the power of Congress, could have almost the same effect, in that the value of the extra two votes would be minimized, if there were, say, 870 members of the House of Representatives rather than 435.  However, a much larger House of Representatives does seem to be an item on anyone’s political agenda.

That the Electoral College with its strange features has survived for more than two centuries (and with no modification since 1804) is more than anything else a tribute to the stability of American politics and the narrowness of the American political spectrum.  Compared to most European countries, the left and the right in American politics are so close together that presidential elections usually have little real effect on the direction of the country.  The Electoral College may produce an occasional unfair result, but so far the consequences of the unfair results have not been significant enough to inspire a large numbers of Americans to demand change in the current system.

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