The United States Constitution

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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.

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:


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