The United States Constitution

A forum for discussing the meaning of the United States Constitution for our political process.

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I am concerned about the direction of the United States economy and politics, and about our declining influence in the world. I feel we are losing our moral and ethical bearings.

Friday, October 27, 2006

Is a Massachusetts Gay Marriage Legal in All States?

  Ira Krakow - The United States Constitution - The United States ConstitutionThe United States ConstitutionShare your views about the Constitution with the world.
Share your views about the Constitution with the world.

I am a citizen of both the United States of America and the Commonwealth of Massachusetts.  Massachusetts is the only state (even though Massachusetts, like Kentucky, is technically a Commonwealth, for legal purposes Massachusetts is a state as well) where same sex marriage is legal.  Are all the other states, and the Federal government as well, required to recognize a Massachusetts same sex marriage?  I will also discuss civil unions, such as the recent New Jersey ruling, as a possible alternative to gay marriage.  My totally untutored legal brain, based on a simple reading of the United States Constitution, says "yes" to both questions.  Article 4, Section 1 states, in part:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

Getting married in Massachusetts (it's something I actually have done and it's still legal and binding as far as I know) is certainly a public act of Massachusetts.   If my wife and I  (we're a heterosexual couple) move to Florida, we're still married as far as Florida is concerned.  Is marriage a proper area in which Massachusetts can pass laws?  Absolutely!  Article 1, Section 8 specifically lists all the areas in which Congress can pass laws.  These are the so-called enumerated powers.  Last time I looked, marriage was not on the list.  Just to drive home the point, the 10th Amendment states that:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Each state is thus free to set its own marriage laws, free of Federal intervention.  By tradition, that's exactly what has happened, producing different rules for marriage and divorce, property rights, child custody, contract rights, estates and trusts, and so on, in each state.  For example, if you get divorced in California, a community property state, all the assets acquired during the marriage, no matter how the asset is titled, is deemed to be held 50/50 by each spouse.  In Massachusetts, the asset's ownership is based on how it is titled.  If the car is titled in my name I own it 100%, for example.  So if a homosexual couple marries in Provincetown, Massachusetts and later divorces in San Francisco, California, the same rules should apply as (perish the thought) a divorce action between me and my wife in California.

Another example - suppose a gay couple married in Massachusetts adopts a child in Massachusetts, moves to California, and one spouse refuses to pay child support.  Can the other spouse sue in California (or Massachusetts) for child support?  Will California abandon the child, or seize the child from the parents, or refuse to honor a Massachusetts child support order?  Certainly the child support obligations apply to my marriage and children, no matter what state I live in.

The Constitution seems clear.  The other 49 states, and the Federal government, must recognize the validity of any marriage under the laws of Massachusetts.  To do otherwise is to violate the original intent of the Constitution's framers.  To change this, you need an amendment to the Constitution.  Of course, an amendment is a difficult thing to pass, requiring a 2/3 vote of both houses of Congress and ratification by 3/4 of the state legislatures.

Opponents of gay marriage have tried to get around the amendment route by pushing for laws, at both the Federal and state level, to forbid gay marriage, or where it exists, to limit its scope in some way.  This opposition has been bi-partisan, with its start in the Clinton administration.  The Democrats have been particularly wishy-washy on this issue because they have significant support in the gay community.  However, for political reasons, they don't want to offend potential voters, such as devout Catholics, either.  So they flip flop, straddle the fence, and try to please both sides.

President Clinton, during his term, stated that he was opposed to gay marriage.  I assume that's still his position, as well as the position of his wife, the junior Senator from New York.   When Senator Kerry ran for President, he also stated that he was opposed to gay marriage, but that he supported civil unions.

The campaign to limit gay marriage started with the Defense of Marriage Act (DOMA),  passed by Congress by a vote of 85-14 in the Senate and a vote of 342-67 in the House of Representatives.   The Act was signed into law by President Bill Clinton on September 21, 1996.   Its main provisions (I'm quoting from the Wikipedia article) are:

  1. No state (or other political subdivision within the United States) need recognize a marriage between persons of the same sex, even if the marriage was concluded or recognized in another state.

  3. The Federal Government may not recognize same-sex or polygamous marriages for any purpose, even if concluded or recognized by one of the states.

The motivation behind the Defense of Marriage Act was a reaction to a Hawaii Supreme Court ruling in 1993 (the case of Baehr v. Lewin) in which the Court ruled that Hawaii needs to show a compelling state interest if it is to prohibit same sex marriage.  In other words, the DOMA was a defense against the possibility that a state might legalize gay marriage.

The Defense of Marriage Act is still on the books.  The Supreme Court has not ruled on its constitutionality, even though it has had opportunities to do so.  Federal agencies, such as the Internal Revenue Service, have issued rulings consistent with the Defense of Marriage Act.  In Massachusetts, same sex couples can file as married; however, they are not considered married for Federal income tax purposes.  This makes the determination of income and tax very complicated, as this document from the Massachusetts Department of Revenue illustrates.

The New Jersey Supreme Court ruled, on October 25, 2006, that homosexuals are entitled to the same benefits as heterosexuals, and ordered the state legislature to pass a law within 180 days to give equal rights to same sex couples.  This seems odd - the court ordering the legislature to pass a law, with a deadline no less!  I don't believe the United States Supreme Court can order Congress around like that.  New Jersey, like Vermont, already allows same sex couples to apply for domestic partnership status, like a civil union.  Civil unions seems to me a kind of inferior class, something like "separate but equal" than full marriage.  It doesn't feel like the right solution to me - grant either full marriage status or nothing.

Opponents of gay marriage are moving on a number of fronts.  A number of state legislatures have passed laws defining marriage as the union of one man and one woman.  Here's the current status, state by state, according to this Wikipedia article:

Connecticut, Vermont, and California have created legal unions that, while not called marriages, are explicitly defined as offering all the rights and responsibilities of marriage under state law to same-sex couples. Maine, New Jersey, the District of Columbia, and Hawaii have created legal unions for same-sex couples that offer varying subsets of the rights and responsibilites of marriage under the laws of those jurisdictions. In contrast, nineteen states have constitutional amendments explicitly barring the recognition of same-sex marriage, confining civil marriage to a legal union between a man and a woman. Forty-three states have statutes defining marriage to two persons of the opposite-sex, including some of those that have created legal recognition for same-sex unions under a name other than "marriage."

At the Federal level, if the Defense of Marriage Act is declared unconstitutional, proposals for a Constitutional amendment to define marriage as the union of one man and one woman have been written.  The Federal Marriage Amendment, which failed to pass the Senate, is one such proposal.

To me, the debate is a constitutional and legal minefield.   If the Federal government wants to use constitutional amendments to legislate morality, why stop at marriage?  The 18th Amendment, which outlawed the sale of alcohol "for beverage purposes" because of the danger to the public health, proved to be a disaster, requiring another amendment (the 21st) to repeal it.  Some opponents of gay marriage have cited the second clause of Article 4, Section 1:

...And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

to support the idea that Congress can overrule state action.  I believe this opens a Pandora's box.  Congress would be able to override any state law.  What if a state allows a color blind person to get a drivers license?  Could Congress pass a national driver's license law to overrule this?  What if I have a license from such a state and show up in another state to rent a car?  If the state refuses to honor my driver's license, this would seriously disrupt interstate commerce.

The bottom line is that the constitutionality of all these laws is yet to be tested and none of the Federal branches - the Executive, the Legislative, nor the Judicial - wants to touch this particular legal third rail.

Monday, October 23, 2006

Was Vice President Aaron Burr Guilty of Treason?

Ira Krakow - The United States Constitution - The United States Constitution

Here's my suggestion for a Final Jeopardy Answer: "Who was the only Vice President who was tried for treason?". I'll even add a hint: "He also was the only Vice President who killed a political opponent while in office". Think of Dick Cheney with better aim.

Give up? The answer is Aaron Burr (1756-1836), our third Vice President, Thomas Jefferson's running mate. As I described in my episode on the Election of 1800, he tied Jefferson in electoral votes, which led to the election being decided by the House of Representatives. With all the political intrigue rampant in that election, Burr could easily have become our third President instead of Jefferson.

Who was this enigmatic man? Aaron Burr, Jr., descended from an influential and powerful family. His father, Aaron Burr, Sr., was President of Princeton University. His maternal grandfather was Jonathan Edwards, a famous Puritan preacher. He majored in theology at Princeton, but eventually switched to law. By all accounts, he aspired to a political career.

Burr had a distinguished Revolutionary War career. He volunteered in 1775, participated in Benedict Arnold's march to Quebec, and joined General Washington's staff in 1776. He spent the winter at Valley Forge.

After the War, he married and started a successful law practice in New York. At one time, his law partner was Alexander Hamilton. His political aspirations were rewarded when Governor Clinton named him Attorney General in 1789. He was elected Senator in 1791, defeating Alexander Hamilton's father-in-law, Philip Schuyler, and served 6 years. Hamilton believed Burr had stolen the election. Burr became an influential member of the anti-Federalist Democratic party. New York's ratification of the Constitution was by no means a done deal. In fact, only one New York delegate - Alexander Hamilton - ratified the Constitution. It was no accident that two of the three authors of the Federalist Papers, Hamilton and Jay, were from New York. Burr was in the anti-Federalist camp. Because of his political views, and of his power in the New York Democratic party, he proved an attractive running mate for Thomas Jefferson. They basically ran as the anti-Federalist "ticket", first unsuccessfully in 1796 and then successfully in 1800.

Burr became Jefferson's Vice-President from 1801-1805. As Vice President, Burr was also President of the Senate. During his term, he ran for Governor of New York as an independent but was defeated by the Republican candidate, Morgan Lewis. Hamilton and Burr had, by that time, become political rivals. Hamilton supported Jefferson over Burr in the Election of 1800, as well as Lewis over Burr in the New York governor's election. The enmity had bcome so great (there were also some nasty personal articles about Hamilton's bastardy as well) that Hamilton and then Vice President Burr fought a duel. On July 11, 1804, they dueled in Weehawken, New Jersey. Hamilton fired first, missing Burr. Burr's shot hit Hamilton, piercing his liver and spine. Hamilton was evacuated to New York and died there.

After the duel, Burr's political career was effectively over. Although dueling was illegal in both New York and New Jersey, Burr was never tried for murder and he completed his term as Vice President. After his term ended, he fled to Philadelphia. There, he allegedly hatched a plan with his Princeton classmate, Jonathan Dayton, with the goal of creating a new nation out of a number of Spanish held territories in the Southwest, in what is Texas today. Burr's supporters claimed that he had simply leased 40,000 acres in Texas and wanted to retain title to it. However, Burr did have contact with General James Wilkinson, the Governor of Louisiana who was secretly in the pay of Spain, and Harman Blennerhassett, an Anglo-Irish aristocrat who owned land on the Ohio River. There were promises of help from Great Britain and Spain, and local Creoles in Louisiana were recruited as possible allies for this new southwestern "republic". Burr also recruited soldiers for this plot.

Wilkinson, afraid that the plot would fail, betrayed Burr to Jefferson. Burr was captured and, in 1807, was tried for treason before the circuit court at Richmond, Virginia. At that time, Supreme Court justices "rode circuit", presiding over the regional Federal circuit courts during the off-term period. The trial judge was none other than John Marshall, the Federalist Chief Justice of the Supreme Court, and Jefferson's political foe. By the way, in Marbury v. Madison, the famous case on which Marshall established the principle of judicial review, Marshall was actually ruling on whether his act of not giving Marbury his commission was constitutional or not. By our current rules of judicial ethics, he should have recused himself.

It's important to note that, even though Jefferson had purchased the Louisiana territory from Napoleon, the Louisiana Purchase had not been officially accepted by Congress. The definitive annexation and boundaries of the Louisiana Territory did not become final until 1819, by the Adams-Onis Treaty. Jefferson was having second thoughts. Also, there was sizeable local opposition from local planters and soldiers to the annexation. Was Burr raising an army to liberate these lands and set up a republic under his control?

The Burr treason trial was the trial of the century, even though the century was barely 7 years old. The case turned on some letters that Jefferson possessed, that Marshall requested. Jefferson claimed "executive privilege", thus establishing that defense many years before Nixon did the same in the Watergate era. In the end, Burr was acquitted of treason because the court ruled that the government had not proved that he committed the overt act, in the presence of two witnesses, required by the Constitution. Whether this is a purely legal decision or an act of political revenge against his hated rival is something you can decide.

PBS, for the American Experience series, produced a documentary on the Hamilton-Burr duel and the Burr treason trial. After the trial, Burr fled to Europe, had a number of mistresses, and was even sued for adultery when he was in his 80s. By any standard, he had the most checkered career of any Vice President in our history. There's an interesting fictionalized biography, called simply Burr: A Novel, by Gore Vidal, that tells this story from Burr's eyes. Sometimes biographies of people like Jefferson and Marshall read like the lives of the saints. This one is a bit more earthy, and certainly paints Burr in a more favorable light than most history books do.

Wednesday, October 18, 2006

World War II Treason Cases (Tokyo Rose, Nazi Plotters) and Gadahn

Ira Krakow - The United States Constitution - The United States Constitution

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The United States Constitution

The Bush administration has recently decided to try Adam Gadahn, an American citizen, for treason, for making tapes for Al Quaeda. Gadahn, 28, of Santa Ana, California, was indicted last Wednesday by a Federal grand jury for allegedly making tapes that called for the death of Americans and for attacks on United States targets.

Mr. Gadahn, aka "Azzam al-Amriki" (Azzam the American), grew up on a goat farm in Orange County, California. He praised the 9/11 attacks as "the blessed raids on New York and Washington". On one tape, he is actually introduced by Ayman al-Zawahiri, Osama bin Laden's second in command. He stated that "the streets of America shall run red with blood". There's a million dollar reward, from the Rewards for Justice Program, for information leading to the arrest and conviction of Mr. Gadahn. Deputy Attorney General Paul McNulty believes there is a solid case for treason, a charge that has not been brought for over 50 years, for World War II defendants.

In this episode, I will discuss the treason cases arising out of World War II and give my understanding, as an ordinary citizen just trying to understand the law, of what the government has to prove in the Gadahn case, based on these cases. Three of the cases relate to Nazi Germany (Cramer v United States, ex parte Quirin and Haupt v United States), and two relate to Japan (Tokyo Rose and Kawakita).

First, what is treason? Treason happens to be the only crime that is explicitly defined in the Constitution. Article 3, Section 3 states:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The Framers were afraid that a tyrannical executive (the King of England) could arbitrarily define the crime to include anyone the king wanted to condemn, and therefore they set a high standard of proof. The government needs to establish an overt act, in the presence of at least two witnesses, evidenced in open court. In addition, relatives of the accused are not supposed to be tainted by the treason verdict. This proved to be at issue in one of the cases - Haupt v. United States - which centered on the father of one of the persons convicted of treason.

World War II, as I mentioned in the episode about whether or not we are at war, was the last war where the United States followed the Constitutional procedure for declaring war. Japan attacked us at Pearl Harbor, Roosevelt asked Congress for a formal declaration of war on December 8, 1941, Congress approved the declaration, Germany then declared war on us, and we declared war on Germany. So we were officially, legally, and constitutionally at war with both Nazi Germany and the Japanese Empire - official state enemies with soldiers in uniform.

The cases related to Nazi Germany are Cramer v. United States, ex parte Quirin and Haupt v. United States. The cases centered around Operation Pastorius, a failed attack by Nazi Germany on the United States, staged in June, 1942. Eight Germans who lived in the United States, Ernest Burger, Herbert Haupt, George John Dasch, Edward Kerling, Richard Quirin, Heinrich Heinck, Hermann Neubauer and Werner Thiel, were recruited for the operation, masterminded by Admiral Canaris, the head of the German Abwehr, their Secret Service. They were smuggled into the United States on two U-boats, the U-202 and U-584. Their mission was to sabotage United States hydroelectric plants at Niagara Falls, ALCOA plants in Illinois, Tennessee, and New York; locks on the Ohio River near Louisvill, Kentucky, a cryolite plant in Philadelphia, Pennsylvania; Hell Gate Bridge in New York, and Pennsylvania Station in Newark, New Jersey.

Two of the Germans, Dasch and Burger, decided to back out of the mission and turned the others into the FBI. Eventually all 8 were arrested and put on trial by a special military court - something like the military commission that Bush got - in Washington, DC. All 8 defendants were found guilty and sentenced to death. FDR commuted Dasch's sentence to 30 years and Burger's sentence to life. The other 6 defendants were executed on August 8, 1942, in the electric chair of the District of Columbia jail and buried in a potter's field in the Anacostia section of Washington, DC. This was the largest legal mass execution in United States history. In 1948, President Truman commuted the sentences of Dasch and Burger, deporting them to the American zone of occupied Germany.

The three cases arising from Operation Pastorius may give some hints as to what the government needs to prove in the Gadahn case. In Cramer v US (1945), Anthony Cramer, a friend of two of the conspirators, had had a "few drinks" with them. He apparently was not aware of the plot. Although he had sympathy for the Fatherland, and had traveled to Germany for the 1936 Olympics, it was not clear what his sympathies to the Nazi regime lay. He was tried for treason, sentenced to life imprisonment, and made to pay a $10,000 fine. The Supreme Court, on appeal, ruled that these facts were not enough to support the crime of treason.

In Haupt v United States, Hans Haupt, the father of Herbert Haupt (one of the executed conspirators), was also convicted for treason, sentenced to life imprisonment, and made to pay a $10,000 fine. He had lent his son money, helped him purchase an automobile, and helped him get a job at the Norden bomb sight factory. In this case, the Court affirmed the conviction.

In ex parte Quirin,(ex parte means that the matter only concerns one side - Quirin - as opposed to the traditional plantiff v defendant format), the Supreme Court ruled in 1942 that the conspirators could be tried before a special military court. This ruling has been cited by the Bush Justice Department lawyers to support these special commissions.

The Tokyo Rose case shows how the media and propaganda machine can construct a story. You see it all the time - a movie that's "inspired by a true story" or "based on a true story". It's difficult to separate fact from fiction. The Japanese certainly broadcast US-English radio shows, intended to sap the morale of our troops, during the war. One of the broadcasters, Iva Toguri d'Aquino, a Japanese-American, had the misfortune of visiting Japan at the time of the attack on Pearl Harbor. She was visiting relatives. Stranded in Japan, needing work, and not speaking Japanese, she answered an ad for an English language typist for Radio Tokyo. Eventually she became an announcer for The Zero Hour, a radio program produced to demoralize our troops. She was one of a group of 12 announcers.

Iva consistently denied that she was a disloyal American. She never renounced her US citizenship. The US military investigated her immediately after the war and did not find any evidence of treason. However, Walter Winchell, a US radio personality, lobbied for putting her on trial for treason. In 1949, she was tried, on the basis of testimony of two "witnesses" (remember, according to the Constitution, you need two witnesses), and convicted. Her sentence was 10 years in prison. She served 6 years.

In the 1970s, information came out that the two witnesses lied. President Ford pardoned her on his last day in office. Iva Toguri d'Aquino died on September 26, 2006, at the age of 90.

Tomoya Kawakita, a Japanese American, was the last person tried and convicted of treason in the United States. He was convicted in 1952. He tortured American POWs as an employee of a Japanese mining company. He was sentenced to death. President Eisenhower commuted his sentence to life imprisonment in 1953. In 1963, President Kennedy, during the closing of Alcatraz prison where he was serving his sentence, pardoned him and deported him to Japan.

What can we conclude from all of this? Treason is difficult to prove, the facts and the result don't appear to be consistent, and the punishment (it's anywhere from 5 years in prison to death) seems arbitrary. Witnesses can be suborned and coerced. The media, as illustrated by the Tokyo Rose case, can whip up a frenzy. In the case of Mr. Gadahn, it seems unlikely that any al Quaeda operatives that might have witnessed his overt acts will testify in open court. With the special military commissions, they won't have to.

I have a modest proposal. Declare all the Guantanamo detainees enemy combatants. Line them against a wall and shoot them. Don't tell anyone. That will save us taxpayers a lot of money. Based on the laws recently passed, it appears that this is totally legal.

Thursday, October 12, 2006

How did the Supreme Court Decide the Election of 2000?

Listen to The Election of 2000

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Ira Krakow - The United States Constitution - The United States Constitution..

The United States Constitution

As is well known, the Presidential election of 2000, between George W. Bush and Al Gore, hinged on the Florida electoral votes.  Ultimately, it was decided by the Supreme Court, in the case of Bush v. Gore What constitutional issues were involved?  In this episode, I will try to make sense out of the logic that the majority faction of the Court (even this is in dispute - was it 7-2 or 5-4) used.  My sources are the Constitution, the actual text of the decision and the minority opinions, and articles from legal scholars.  I also cite my previous episodes about the election of 1800 and the election of 1876.  Amazingly, this was the 4th time in United States history that the candidate who became President had lost the popular vote.  The others were the Election of 1824 (John Quincy Adams v. Andrew Jackson), The Election of 1876 (Hayes v. Tilden), and the Election of 1888 (Benjamin Harrison v. Grover Cleveland).

First, some background.  On Election Night, November 7, 2000, based on exit polls, the TV networks and CNN had declared that Gore had won the Florida electoral votes, and thus the Presidency, only to reverse themselves a few hours later.  State results tallied on election night gave 246 electoral votes to Bush and 255 to Gore, with New Mexico (5), Oregon (7), and Florida (25) too close to call at the time. Since 270 electoral votes are required to win, Florida would put either candidate over the top, and the other two states were irrelevant.  (Gore eventually was determined to be the winner in New Mexico and Oregon.)

On November 8, 2000, the Florida Division of Elections reported that Bush had a majority of 1,784 votes.  Since this was less than 1/2 of 1% of the votes cast, Florida state law mandated a recount of the machine tabulated votes.  The recount, completed on November 10, resulted in a much smaller majority for Bush (327).

Florida's election laws allow a candidate to request a county to conduct a manual recount, and Gore requested manual recounts in four Florida counties: Volusia, Palm Beach, Broward, and Miami-Dade. The four counties granted the request and began manual recounts. However, Florida law also required all counties to certify their election returns to the Florida Secretary of State within seven days of the election, i.e., November 14.  By the deadline, only Volusia County had finished the manual recount, leaving the Democratic-leaning counties of Palm Beach, Broward, and Miami-Dade with an incomplete manual recount.

Florida's Secretary of State, Katherine Harris, a Republican, requested these counties to show cause that they needed extra time beyond the deadline.  She rejected their explanation, and announced that she would certify the ballots on November 18th.  The Gore legal team sued to prevent Harris from doing this.  The Florida Supreme Court agreed, issuing an injunction against Harris' contemplated action.  On November 21, the Florida Supreme Court ordered Harris to accept the results of any manual recount completed by November 26th.

Both the Bush and Gore teams made a number of legal maneuvers.  Harris certified the election on November 26th.  Miami-Dade had started a recount and then stopped it because the County felt it couldn't complete the recount in time.  Gore contested the certification in the Florida courts.  The court ordered a partial recount of only certain types of votes (the "undervotes") in certain counties.  Bush challenged this procedure.  On December 9th, the Florida Supreme Court issued an injunction to stop the recount.

The Supreme Court took the case on December 11, and in an extraordinary display of speed, issued their decision, effectively stopping the recounts and awarding the election to Bush, just 16 hours later.  Time was of the essence, because a certified list of electors was necessary by December 12th, 6 days before the meeting of the Electoral College on December 18th.  Otherwise, Congress, as in 1876, would have had to certify the Florida electors.

What was the constitutional basis of their ruling?  The majority decision, after citing the facts of the case, made the following comment:

The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon.    Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot....In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.

and goes on to write

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.

Indeed, the Constitution, in Article 2, Section 1, Clause 2, states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...

Basically, you cast your vote for electors in your state pledged to your candidate, and then cross your fingers that your state has in place a legal mechanism to count your vote.  The procedure defined by the state should be controlling.

The Florida standard was to determine "the intent of the voter" - in other words, examine the evidence (hanging chads, dimpled chads, butterfly ballots, whatever) and try to figure out what the voter's intent was.  This was the Gore position as well.

The Bush legal team, however, argued that since the recount used different rules in different counties, and, in the case of Broward County recount, different rules in the same county, not all votes were recounted in the same way.  Of course, the Court's ruling, cited earlier, was that not all votes were originally counted the same way either.  But no matter.  Bush claimed that this is unfair treatment of votes violates the Equal Protection clause of the 14th Amendment.  The Court agreed with Bush - the Florida Supreme Court needed to come up with a standard recount procedure, even thought the original vote was not subject to such a standard.  According to the Court:

The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections. The State has not shown that its procedures include the necessary safeguards.

This contradicts what the Court wrote earlier.  In the original vote, indeed of any Presidential election, not all votes are counted equally.  So why should this happen in the recount?  And if the Florida Supreme Court's ruling was unconstitutional, why stop the vote entirely?  What kind of remedy is that for the alleged 14th amendment violation?

Indeed, this was Justice Breyer's argument in his dissenting opinion:

Nonetheless, there is no justification for the majority's remedy, which is simply to reverse the lower court and halt the recount entirely. An appropriate remedy would be, instead, to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida, including those from Broward, Volusia, Palm Beach, and Miami-Dade Counties, whether or not previously recounted prior to the end of the protest period, and to do so in accordance with a single-uniform substandard.

In other words, continue the recount and count as many votes as possible.

The US Supreme Court trampled on state sovereignty.  According to Rehnquist's concurring opinion, there's an exception for this:

In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns...But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State's government. This is one of them. Article II, ยง1, cl. 2, provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct," electors for President and Vice President. (Emphasis added.) Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.

Justice Ginsburg strongly dissented:

The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state high courts' interpretations of their state's own law. This principle reflects the core of federalism, on which all agree...

She also write "I dissent", instead of "I respectfully dissent", probably reflecting her disdain at the verdict.

Here's my take - the 5 justices who ruled in favor of Bush did not want Congress to certify the Florida electors - with the possibility of a repeat of the Election of 1876 - and the possibility of overturning a Bush victory.   December 12 was the absolute deadline, so Justice Breyer's idea of continuing the recount was a non-starter.  That was the goal.  The majority simply concocted some reasoning allegedly based on the Constitution to achieve the goal, thereby ignoring the wishes of the other 4 justices, the voters of Florida, and the will of the United States electorate.   As Justice Scalia later remarked about debates on this case, "get over it".

Tuesday, October 10, 2006

The Election of 1876 - How the South Won the Civil War

  Ira Krakow - The United States Constitution - The United States Constitution..

The United States Constitution

In the previous episode, I discussed the Election of 1800, in which Jefferson won the popular vote, but the question of whether he would win the electoral vote, and thus the election, was very much in doubt.  In the end, the people's will prevailed, and Jefferson was declared the winner.  The 12th Amendment, mandating separate electoral votes for President and Vice President, was supposed to resolve all disputes about the voting procedure once and for all.  The 1876 election proved that, no matter what procedure was in place, stealing the Presidency was not only possible but it's what actually occurred.  In addition, the consequences, notably the restoration of a legal system of slavery in all but name in the South, were catastrophic for the over 4 million former slaves.  It all took place in the year of the 100th anniversary of the Declaration of Independence.

The Democratic Party candidate, Samuel Tilden, was Governor of New York.  His candidacy was based on reforming the corruption that was rampant in the Grant administration.  He had taken on corruption in New York by defeating Boss Tweed and the Tammany Hall machine.  The Republican Party candidate, Rutherford Hayes, was Governor of Ohio who had fought in the Civil War.  He also had a stellar reputation against corruption.  In fact, his nickname was "Old Granny".  His wife, who didn't drink alcoholic beverage, was known as "Lemonade Lucy".

In addition to corruption, the most important issue of the election was whether or not to withdraw Federal troops from all of the Southern states.  The reason Federal troops were needed was that anti-black violence was rampant among the local white residents.  Reconstruction - the process of ensuring that the newly freed slaves retained their civil and political rights - needed Federal muscle behind it.  Even though the 13th Amendment (abolishing slavery), the 14th Amendment (ensuring all citizens have their civil rights), and the 15th Amendment (guaranteeing all citizens the right to vote) were part of the Constitution, enforcement of these rights was another matter.  Vigilante groups such as the Ku Klux Klan became virtual governments in some states.  In South Carolina, for example, President Grant imposed martial law and suspended habeas corpus because of Klan violence.  The Republicans campaigned as the party of Lincoln, defenders of Reconstruction and the legacy of the Civil War.  The Klan and the night riders wanted to intimidate voters to vote Democrat.  Would Federal troops ever withdraw from all the Southern states?  Could the Republicans claim to govern by consent of all the people if their power depended upon the army of occupation?

In the 1876 election, Tilden won the popular vote by 250,000, receiving a bit over 50% of the popular vote to 47% for Hayes.  Just as in 2000, both the Republican and Democratic candidates initially thought that the Democratic candidate had won.  However, later events eventually overturned the popular vote.  The undisputed electoral vote count was 184 for Tilden and 165 for Hayes.   However, 20 electoral votes (from Florida, South Carolina, Louisiana, and one from Oregon) were in dispute.  In the case of the three southern states, two separate lists of electors, one favoring the Democrats and the other favoring the Republicans, were sent to Congress for certification.  It was clear that Tilden had won in at least one of the states.  Thus, Tilden seemed to have won both the popular vote and the electoral vote.

There appeared to be vote fraud in the contested states. In Louisiana, unofficial tallies indicated that Tilden had carried the state by over six thousand votes. However, the Republican-controlled returning board threw out the votes from several areas, citing fraud and voter intimidation; in all, over fifteen thousand votes (of which more than thirteen thousand were for Tilden) were discounted.  There were ballot counting irregularities in Florida and Louisiana as well.

In the case of Oregon, there was a separate constitutional issue.  The Constitution states that a Federal official cannot serve as an elector.  One of the electors, John Watts, was a United States postmaster.  He resigned his office a week after the election, before the meeting of the electoral college.  However, the Democratic governor, LaFayette Grover, removed Watts, replacing him with C. A. Cronin, a Tilden supporter.  The point is that Tilden only needed one elector to push him over the top, while Hayes needed all 20 disputed electoral votes.

Congress was also divided.  The Republicans controlled the Senate.  The Democrats controlled the House.  The Congress, unable to agree on certification of the 20 disputed electors, created the Electoral Commission.  They cited the Necessary and Proper clause to justify this legislation:

The Constitution, our great instrument and security for liberty and              order, speaks in the amplest language for all such cases in whatever              aspect they may be presented. It declares that the Congress shall              have power `to make all laws which shall be necessary and proper for              carrying into execution the foregoing powers and all other powers              vested by the Constitution in the government of the United States,              or any department or officer thereof.'

The Commission consisted of 15 members - 5 from the House, 5 from the Senate, and 5 from the Supreme Court.  Originally the idea is that there would be 7 Democrats, 7 Republicans, and one independent.  Justice David Davis, regarded as an independent, was supposed to be the swing vote.  However, he was not given the seat. The final seat went to Justice Joseph Philo Bradley, a Republican.  The lineup was thus 8 Republicans and 7 Democrats.

Some historians have argued that Democrats and Republicans reached an unwritten agreement (known as the Compromise of 1877) under which the filibuster would be dropped in return for a promise to end Reconstruction. This thesis was most notably advanced by C. Vann Woodward in his 1951 book, Reunion and Reaction. Other historians, however, have argued that no such compromise existed.

Under the terms of this agreement, the Democrats agreed to accept the Republican presidential electors (thus assuring that Rutherford B. Hayes would become the next president), provided the Republicans would agree to withdraw all remaining Federal troops from the southern states.  Regardless of whether or not such a formal agreement existed, that's what happened.  The Electoral Commission voted, 8-7, along party lines, to accept all the 20 disputed electors as for Hayes, and thus, 2 days before Inauguration Day, Hayes became President.  Soon thereafter, Hayes withdrew all Federal troops from the South, effectively ending Reconstruction and placing the former slaves in the tender mercies of the Night Riders and the Klan, twisting (virtually and phyiscally) in the wind.

The era of Jim Crow and lynchings was the norm until the 1950s.

Hayes emerged as President, but he was damaged goods.  His nickname was "His Fraudulency".  Tilden, who was a rich corporate lawyer, retired from politics and devoted much of his portion to philanthropy.  He donated a good portion of his wealth to build the New York Public Library on 5th Avenue and 42nd Street in Manhattan.  Even though the Republican Hayes became President as a result of the 1876 election, the South was solidly Democratic until the 1970s.  Democratic presidents such as Wilson and Franklin D. Roosevelt never seriously challenged the "Dixiecrats" and the system of segregation.

The parallels to the Election of 2000 are haunting - the Democratic candidate won the popular vote, the Florida electoral vote count was in question, a justice was pivotal in the final decision.  To prevent a repeition of 1876, Congress passed the Electoral Count Act in 1887, making the state executive, instead of Congress, the body that certifies the electors.  This is, of course, what Katherine Harris and Jeb Bush did in 2000 for the Florida electors.

Additional readings:

Wednesday, October 04, 2006

The Election of 1800 - The Most Messed Up Election in US History

  Ira Krakow - The United States Constitution - The United States ConstitutionThe United States ConstitutionShare your views about the Constitution with the world.
Share your views about the Constitution with the world.

You might think that the 2000 Presidential election, between George Bush and Al Gore, complete with hanging chads and a unilateral proclamation from the Supreme Court declaring Bush as the victor, was the most messed up election in our history. Compared to the election of 1800, which ultimately resulted in the election of Thomas Jefferson as 3rd President of the United States, it was a walk in the park. Thanks to the way the President was elected, as written in the Constitution, that election became nothing less than a full-blown constitutional crisis, threatening to tear that document, and our nation, into shreds.

In this episode, I will give you a brief explanation of why this is so. The story has many twists and turns, thus a comprehensive explanation is beyond the scope of this podcast episode. I only want to stimulate your interest.

The original procedure for electing a President is written in Article 2, Section 1 of the Constitution.

Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each state having one vote; A quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice President.

Some important points that impact this story:

  • Each state legislature, not the people, votes for the electors, who then vote for the President.
  • Each state, independently of the other states, can make its own rules about how the electors are chosen. In 1800, there were 16 states. That meant 16 different procedures for electing the electors.
  • The electors in each state then vote for President.
  • Once that is done, the votes are talllied and sent to the Senate and the House of Representatives.
  • In the presence of the President of the Senate (i.e., the Vice-President), the votes from each state are certified. Each state's tally needs to have the person's name and the number of votes.
  • If a person has more than 50% of the vote, he becomes President.
  • If nobody has a majority, and there isn't a tie between #1 and #2, the House can choose a President from the top 5 candidates. The votes are "taken by the states" - one state one vote.
  • If there is a tie between #1 and #2, the House can choose a President from #1 and #2.
  • No matter what, whoever has the second most votes of the electors becomes Vice President.
  • If there is a tie for #2, the Senate chooses the Vice-President from the tied candidates.

You might think the Framers covered all the possibilities. Why did they come up with such an elaborate scheme? The reason: they feared direct democratic elections, equating that with mob rule. Their preference was representative democracy, where the people voted indirectly. James Madison, writing as Publius in Federalist 10, expressed it thus:

it may well happen that the public voice pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves convened for the purpose.

Representative government would cure the problem of "factions", by which he meant special interests. At the time of ratification, it was assumed that George Washington, who seemed to be above faction, would become President. The Framers wished that similarly minded men who viewed the national interest as more important than petty party interest, would become President by the operation of the electoral mechanism they set up.

This vision worked for the first two elections, 1788 and 1792, when Washington was the clear winner and John Adams was his trusted Vice President. By the Election of 1796, however, the wheels were starting to fall off the horse. Two factions - the Federalists and the Republicans - for larger and smaller government - had emerged. By 1796 they had assumed the characteristics of political parties.

In the Election of 1796, the winner, John Adams, was a Federalist, and the runner up, Thomas Jefferson, was a Republican. By the electoral process set up in the Constitution, with one list to determine both President and Vice President, that meant that Adams became President and Jefferson became Vice President. Of course, if the originalist electoral college rules applied in 2000, either Bush would be President and Gore would be Vice President, or vice versa (depending on how many hanging chads you count). The result: the Adams administration was "divided government" with a vengeance. There was a possibility of war with either Great Britain or France. Adams and the Federalists were pro-British; Jefferson was pro-French. Some really ugly events, such as the Alien and Sedition Acts and the XYZ Affair, punctuated the Presidency.

All of this came to a head in the Election of 1800. Many of the scenarios the Framers thought of came to pass in this election. Some that they hadn't thought of also came to pass. Here's what happened:

  1. Thomas Jefferson, the Republican candidate, won the popular vote, like Al Gore in 2000. Would the electoral process make him President?
  2. Jefferson and Aaron Burr ran as the Republican "ticket". The plan was for Burr to become Vice President by having one Republican elector vote for another candidate as Jefferson's running mate. Unfortunately for the plan, the elector didn't do that. All the Republican electors cast their 2nd vote for Burr. The result: the electoral vote was tied, 73 to 73. By rule (sounds like an NFL referee did this one), the election was thrown into the House.
  3. The House was Federalist-dominated, because it was a "lame duck" House. Even though the Republicans had won the House, the Constitution mandated that the House meet from the first Monday in December, 1800. The next administration wasn't scheduled to start until March 4, 1801. In this case, the Federalist-dominated members had lost, but because of the electoral process they had the opportunity to choose the President and, perhaps, override the people's choice.
  4. Jefferson had an ace up his sleeve. As Vice President, he was President of the Senate. According to the process, the electoral votes were to be counted "in his presence". He did a bit more than just stand there while the votes were being counted. The Georgia electoral tally did not have the popular vote tally and could have been disallowed, resulting in a new election. However, Jefferson certified the Republican electors who, by happy coincidence, were pledged to him.
  5. Since the election was to be decided by the House, the Constitution allowed them to select from among the top 5 candidates. The House could have chosen a Federalist candidate such as Pinckney, Adams, or John Jay, instead of Jefferson.
  6. The election procedure, just for this, was "one state one vote". Since there were 16 states, 9 of them would have to agree. Only 8 states were in the Jefferson column. The first 35 ballots could not produce a 9 state majority.
  7. On the 36th ballot, thanks to the scheming of Alexander Hamilton of New York and Bayard of Delaware, the Federalists caved in to the popular vote and got their states to vote for Jefferson. The result was that Jefferson became President and Burr Vice President - just what the voters wanted. The scheming cost Hamilton his life. In 1803, Hamilton and Burr fought a duel. Hamilton purposely missed his first shot. Burr did not, fatally injuring Hamilton.

My main source for this is Professor Bruce Ackerman's excellent book, The Failure of the Founding Fathers, as well as the Wikipedia article on the Election of 1800. There's more to this tale. During this lame duck period, John Adams and the Federalists created new courts and packed them with Federalist judges, whom the Republicans called "midnight judges". Additionally, he appointed the Federalist Secretary of State, John Marshall, as Chief Justice - after John Jay, who had been Chief Justice earlier and had resigned, refused the honor. As a result, the judiciary was Federalist-dominated. This is the political background to the famous Marbury v Madison ruling, which established judicial review, and which I discussed in a previous episode.

As for the original Presidential electoral process, everyone was so horrified by the Election of 1800 - during the deliberations, Federalist militia from the North and Republican militia from the Southern states were preparing to fight - that a call for reform of the process went out. The result was the 12th Amendment, the main provision of which was to have two separate lists for President and Vice President. Eventually, electors became rubber stamps for the popular vote in each state. The 12th Amendment procedure is in effect today, and was the procedure in the election of 2000. Of course, in 2000, unlike in 1800, the electoral vote reversed the popular vote.