Lawrence v. Texas (2003), United States v. Windsor (2013) And Obergefell v. Hodges (2015) – Guest Essayist: Daniel A. Cotter

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Lawrence v. Texas (2003), United States v. Windsor (2013) and Obergefell v. Hodges (2015): The June 26th SCOTUS Trifecta by Justice Anthony Kennedy

On June 26, 2015, the Supreme Court of the United States held a special Friday session the week before end of term to announce its decision in Obergefell v. Hodges, in which the Court held that the “Fourteenth Amendment requires a State to license a marriage between two people of the same sex.”  The Obergefell opinion marks the third of three June 26th Supreme Court decisions since 2003 recognizing human rights and protections for gay people. All three were authored by Justice Anthony Kennedy, making him a hero in the LGBT community.

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Justice William J. Brennan, Jr. (1906-1997) – Guest Essayist: Daniel A. Cotter

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Justice William J. Brennan, Jr. (1906-1997): An Associate Justice Who Led the Court and Which is Often Referred to as The Brennan Court

On July 20, 1990, Associate Justice William J. Brennan, Jr. resigned from the Supreme Court of the United States, after serving nearly 34 years (including three months with a recess appointment and two months while his nomination was confirmed).  Only five justices served longer on the Supreme Court and only one justice wrote more opinions.  Brennan was an election year appointment by President Dwight Eisenhower.

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Justice Hugo Black (1886-1971) – Guest Essayist: Daniel A. Cotter

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Hugo Black (1886-1971): The Justice with the Plain Meaning Approach

Hugo Black served more than thirty-four years on the Supreme Court, the fifth longest tenure in the Court’s history.  During his time on the Court, Black developed a reputation as a justice who strongly believed the United States Constitution was to be given its plain and original meaning.

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Chief Justice William Howard Taft (1857-1930) – Guest Essayist: Daniel A. Cotter

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Chief Justice William Howard Taft (1857-1930): The Only Former President to Serve on the Supreme Court of the United States

When Chief Justice Edward White died in May 1910, President Warren G. Harding immediately turned to former President William Howard Taft, who had appointed White to the Supreme Court, to succeed White.  Taft served on the Supreme Court for just less than ten years until his resignation on February 3, 1930. Charles Evans Hughes, another justice whom Taft had appointed to the Supreme Court, replaced Taft as Chief Justice, serving in that role from 1930 to 1941. This column explores William Howard Taft’s career and his Supreme Court tenure and legacy.

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Justice Oliver Wendell Holmes, Jr. (1841-1935) – Guest Essayist: Daniel A. Cotter

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Justice Oliver Wendell Holmes, Jr. (1841-1935): The Oldest Justice at Retirement from the Supreme Court              

I, Justice Oliver Wendell Holmes, Jr., after serving as a Massachusetts Supreme Court judge for twenty years, was nominated to a vacancy on the Supreme Court of the United States and served for almost thirty years on the highest court in the nation, retiring at age 90.  Justice Holmes took his seat on the United States Supreme Court in 1902, at the age of 61, becoming the 58th Justice of the Supreme Court, and one of the most quoted justices in the Supreme Court’s history as well as one of the best known of the justices.    
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Chief Justice Earl Warren (1891-1974) – Guest Essayist: Daniel Cotter

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Earl Warren: The Governor from California Becomes The 14th Chief Justice

Nine chief justices and nearly 120 years separate John Marshall from Earl Warren.  While each chief has influenced the Supreme Court and helped to shape its history, Warren and Marshall are often mentioned together as the greatest of the 17 chiefs.  This column explores Earl Warren’s career and his Supreme Court tenure and legacy.
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Justice John Marshall Harlan (1833-1911) – Guest Essayist: Daniel A. Cotter

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John Marshall Harlan: The Great Dissenter

John Marshall Harlan served more than thirty-three years on the Supreme Court, the sixth longest term in the Court’s history.  During his long tenure, Harlan became known as “The Great Dissenter,” signing more than 300 dissenting opinions from 1877-1911.  Harlan’s grandson, John Marshall Harlan II, would later also serve on the Supreme Court.

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Plessy v. Ferguson (1896) – Guest Essayist: Daniel A. Cotter

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In 1890, Louisiana passed the Separate Car Act which required railroads to provide separate accommodations, including separate cars, for blacks and whites.  A group of Creoles and blacks in New Orleans formed a committee, the Citizens’ Committee to Test the Constitutionality of the Separate Car Law, to challenge this law.  Homer Plessy, whose light-colored skin made him appear to be white but was classified as “colored” under Louisiana law because he was one-eighth black, agreed to bring a test case on behalf of the Committee. He bought a first class ticket and boarded a train in New Orleans in a “whites only” car.  Plessy was arrested by a detective who had been hired by the Committee to ensure that Plessy would be charged with violating the Separate Car Act.  The Louisiana court found Plessy guilty of violating that Act and Plessy sought Supreme Court review of that ruling.  The Supreme Court heard the case, with the main issues being whether the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution and whether the Separate Car Act labeled blacks with a badge of inferiority.

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Chief Justice Roger B. Taney (1777-1864) – Guest Essayist: Daniel A. Cotter

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Supreme Court Chief Justice John Marshall, the fourth Chief Justice, served thirty-four-and-a half years in that role. Roger B. Taney, who succeeded Marshall, served for twenty-eight-and-a- half years, including during almost the entirety of the Civil War. (Marshall and Taney are, respectively, the first- and second- longest serving Chief Justices.)  

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Dred Scott v. Sandford (1857) – Guest Essayist: Daniel A. Cotter

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Dred Scott was born into slavery in Virginia around 1799, but was moved to Missouri where he was sold to Dr. John Emerson, an army surgeon.  Given Dr. Emerson’s military career, he moved frequently and took Scott with him.  Eventually, Dr. Emerson moved with Scott to the State of Illinois and the Territory of Wisconsin, both free territories.  While in the Wisconsin Territory, Scott married Harriett Robinson, another slave who was also sold to Dr. Emerson.  In 1838, Dr. Emerson married Eliza Irene Sandford from St. Louis.  In 1843, Dr. Emerson died shortly after returning to his family from the Seminole War in Florida.  His slaves continued to work for Mrs. Emerson and were, as was common at the time, occasionally hired out to others.  In 1846, Dred and Harriet Scott each filed suit in St. Louis to obtain their freedom, on the basis that they had lived in a free state and territory, and the rule in Missouri and some other jurisdictions at the time was “once free, always free.”  When the suit reached the Supreme Court of the United States, the main issue presented was whether slaves had standing to sue in federal courts.

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Justice David J. Brewer (1837-1910) – Guest Essayist: Daniel A. Cotter

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David J. Brewer: Foreign Born Justice Who Sat with His Uncle

David J. Brewer was born on June 20, 1837, in Smyrna, Asia Minor (today Turkey), the fourth of six Supreme Court Justices born outside the United States.  Brewer sat on the Court with his uncle, Stephen J. Field, to date the only relatives to serve contemporaneously, with Brewer serving twenty years on the Court before his death in 1910.

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Wickard v. Filburn (1942) – Guest Essayist: Daniel A. Cotter

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In 1938, Congress passed the Agricultural Adjustment Act of 1938 (the “1938 Act”), which it enacted to address and correct provisions of the Agricultural Adjustment Act of 1933 for farm subsidies that the Supreme Court had found unconstitutional.  The 1938 Act established marketing quotas and price controls.  Roscoe Filburn, a farmer in Ohio, admittedly sowed twelve acres of wheat more than he was permitted under the 1938 Act, but none of it was sold on the open market.  Filburn was fined $117.11 for violating the 1938 Act.  Filburn sued, challenging the penalty.  The main issue before the Supreme Court was whether wheat that Filburn used for personal consumption was subject to the quotas imposed by the 1938 Act and whether local commerce could be regulated by the Federal government under the Commerce Clause of the United States Constitution. 

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Justice Louis D. Brandeis (1856-1941) – Guest Essayist: Daniel A. Cotter

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Louis Brandeis: First Jewish Justice of the Supreme Court

Until 1916, the United States Supreme Court had never had a Jewish justice.  That changed on January 28, 1916, when Louis Brandeis, the “People’s Lawyer,” was nominated to the highest court in the land by President Woodrow Wilson. Brandeis served for almost twenty-three years and authored several significant opinions during his time on the Supreme Court.

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Trustees of Dartmouth College v. Woodward (1819) – Guest Essayist: Daniel A. Cotter

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Dartmouth College was chartered in 1769 by King George III. In 1816, over thirty years after the conclusion of the American Revolution, New Hampshire’s legislature attempted to alter Dartmouth College’s charter  by giving  the Governor of New Hampshire authority to appoint trustees to the board and creating a state board with veto power over trustee decisions—in effect, converting the school from a private to a public institution.  The existing trustees filed suit against William Woodward, the newly appointed secretary under the new charter, claiming that the acts of the legislature violated the Constitution.  The main issues presented by the trustees’ suit were whether the Contract Clause of the United States Constitution applied to private corporations and whether the corporate charter of Dartmouth College could be changed by the New Hampshire legislature.

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Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897) – Guest Essayist: Daniel A. Cotter

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In October 1880, the Chicago City Council decided to widen Rockwell Street, requiring the City to acquire certain private property owned by individuals and a right-of-way owned by the Chicago, Burlington & Quincy Railroad Company.  The City of Chicago brought a condemnation suit in state court, and the jury awarded compensation to the individuals but only awarded one dollar to the railroad for its right-of-way.  The railroad appealed, asserting that the condemnation was a taking in violation of the Due Process Clause of the Fourteenth Amendment.  The Illinois Supreme Court affirmed the judgment and the railroad thereafter appealed to the United States Supreme Court on a writ of error.  The issue before the Supreme Court was whether a provision in the Bill of Rights to the United States Constitution applies to a state through the Due Process Clause of the Fourteenth Amendment.

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Justice George Sutherland (1862-1942) – Guest Essayist: Daniel A. Cotter

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Justice George Sutherland: One of the Four Horsemen              

Introduction 

In the Supreme Court’s history, six justices were born outside of the United States.  The fifth of those born on foreign soil was George Sutherland (second born in England).  After a career in private practice and public office, Sutherland became an Associate Justice of the Supreme Court in 1923, and would figure prominently in the New Deal jurisprudence as one of the “Four Horsemen” of the Supreme Court.

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Craig v. Missouri (1830) – Guest Essayist: Daniel A. Cotter

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In 1821, the State of Missouri enacted legislation entitled, “An act for the establishment of loan offices,” which permitted the Missouri Treasurer to issue loan certificates – a form of paper currency issued by the state – up to a total of $200,000.  The Missouri Supreme Court found the loans to be valid, and the appellants submitted a writ of error to the United States Supreme Court.  Missouri Senator Thomas Hart Benton argued the Missouri law was a valid exercise of state sovereignty and also urged the Supreme Court to declare unconstitutional Section 25 of the Judiciary Act of 1789, the putative basis for the Supreme Court’s jurisdiction over the case. The Court decided both issues.

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Youngstown Sheet & Tube Co. v. Sawyer (1952) – Guest Essayist: Daniel A. Cotter  

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At times during our nation’s history, the executive branch of the United States government has tested the limits of its power by taking actions that are not explicitly granted to the president or executive branch.  For example, in Youngstown Sheet & Tube Co. v. Sawyer (the “Steel Seizure Case”) (1952), the Supreme Court addressed the issue of executive power during emergencies in the absence of express statutory or Constitutional authority.  The Supreme Court decision spans more than 140 pages, including Justice Hugo Black’s opinion for the majority, holding that President Harry S. Truman had exceeded the limits of the president’s power, as well as concurring opinions from each of the five members of the Court agreeing with Black’s conclusions, and a long dissent by the Chief Justice. The decision and bases for the Steel Seizure Case are hard to discern from the six opinions written to support the majority.  Justice Robert Jackson’s concurrence is often cited to assess the limits of executive power, as it sets forth a categorization that is the most comprehensible of the six opinions.

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United States v. Curtiss-Wright Export Corp. (1936) – Guest Essayist: Daniel A. Cotter

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The three branches of the United States government are often questioned with respect to whether their exercise of powers exceeded the limitations imposed upon them by the United States Constitution. In U.S. v. Curtiss-Wright Export Corp. (1936), the issue was the extent of the president’s and executive branch’s power to conduct the foreign affairs of the United States. The decision has been recognized as a very influential one, establishing the president’s supremacy when it comes to foreign affairs.

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Justice Joseph Story (1779-1845) – Guest Essayist: Daniel A. Cotter

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Justice Joseph Story: The Youngest Justice Appointed to the Court                

Most lawyers in private practice at the age of 32 are preparing for potential consideration for, and transition to, partnership.  At that same age, after a distinguished government and law firm career in Boston, Joseph Story took his seat on the United States Supreme Court in 1811, becoming the 18th Justice of the Supreme Court and the youngest justice appointed to the Supreme Court.  Story served on the Court for almost thirty-four years, writing a large number of opinions and dissents.  His tenure coincided with those of two of the longest serving Chief Justices in the Supreme Court’s history, John Marshall and Roger B. Taney.

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Swift v. Tyson (1842) – Guest Essayist: Daniel A. Cotter

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Section 34 of the Judiciary Act of 1789 provides that “the laws of the several states, except where the Constitution, treaties or statutes of the United States shall otherwise recognize or provide” were to be applied and followed “as rules of decision in trials at common law.” George Swift, a Maine resident, was assigned a bill of exchange from John Tyson in New York.  The bill was dishonored when it became due, and Swift brought a diversity action in the United States District Court for the Southern District of New York seeking payment.  New York common law held that bills of exchange could not be assigned, and the federal court found in Tyson’s favor on that basis.  Swift appealed to the United States Supreme Court, and the main issue before the court was whether the reference to “the laws of the several states” in Section 34 included common law decisions as well as enacted statutes.

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Marbury v. Madison (1803) – Guest Essayist: Daniel A. Cotter

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Marbury v. Madison (1803) – A Landmark Decision Establishing The Supreme Court’s Role

In an effort to fill the Chief Justice vacancy on the Supreme Court before leaving office, President John Adams offered the position to John Jay, who declined, citing the lack of dignity and respect of the Supreme Court.  Secretary of State John Marshall was with Adams when Adams received Jay’s rejection letter and, with time running out, Adams offered Marshall the Chief Justice position, which Marshall accepted. The Senate confirmed Marshall on January 27, 1801, and he became Chief Justice.  However, a Democratic-Republican Party-led Congress repealed the Judiciary Act of 1801 (aka the “Midnight Judges Act”) and subsequently replaced it with the Judiciary Act of 1802, causing the Supreme Court to be on hiatus from December 1801 until February 1803.

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1968, Supreme Court Decisions On Civil Rights: An Issue Raised By George C. Wallace – Guest Essayist: Daniel A. Cotter

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Anyone who believes that today’s political discourse has reached a new low should consider the political career and rhetoric of George C. Wallace, a 1968 Presidential candidate for the American Independent Party, a party formed by Wallace after the Democratic Party rejected his segregationist agenda.  Wallace was at the forefront of resistance to the Supreme Court’s civil rights decisions, including the landmark Brown v. Board of Education ruling.

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1932, Franklin D. Roosevelt Defeats Herbert Hoover: How The Great Depression Threatened Constitutionalism – Guest Essayist: Daniel A. Cotter

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The 1932 Presidential election took place during the height of the Great Depression.  While a number of candidates ran on third party tickets, the main fight for the White House featured the incumbent Republican Herbert Hoover against Democrat Franklin Delano Roosevelt and none of the other candidates garnered more than 2% of the popular vote.  Hoover had won the presidential election in 1928 on a pro-business platform promising continued prosperity.  Nine months into Hoover’s term, on October 24, 1929, the stock market crashed, beginning the period that would become known as the Great Depression.  The challenges created by the downward economic spiral consumed Hoover’s term and were a main focus of the 1932 presidential election.

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1920, The Sedition Act And Eugene Debs: Raising Of The Issue Of The “Red Scare” – Guest Essayist: Daniel A. Cotter

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The Election of 1920: The Sedition Act, Eugene Debs, and the “Red Scare”

Eugene V. Debs was a founding member of the Industrial Workers of the World and a frequent Presidential candidate for the Socialist Party of America.  Debs became a well-known socialist both through his political activity and as a result of the government’s criminal prosecution of his activities.  Other essays in this series cover the numerous Presidential elections in which Debs ran, as well as the other candidates in the 1920 Presidential election. This essay focuses on the Sedition Act of 1918, Debs, and the “Red Scare.”

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1916, Woodrow Wilson Defeats Charles Evans Hughes – Guest Essayist: Daniel A. Cotter

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The 1916 Presidential election pitted incumbent Democratic President Woodrow Wilson against Republican Supreme Court Justice Charles Evans Hughes.  The election was a very close one and had significant ramifications for the “progressive” movement.

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1908, William Howard Taft Defeats William Jennings Bryan – Guest Essayist: Daniel A. Cotter

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The 1908 Presidential election featured the incumbent Republican President Theodore Roosevelt following through on his promise to not seek a third term and encouraging the Republicans to nominate Secretary of War William Howard Taft.  While a number of third party candidates ran against Taft, the only non-Republican candidate who garnered any significant votes was the Democratic nominee, William Jennings Bryan.  Bryan had been the Democratic nominee for President in 1896 and 1900, but the 1908 election was the most lopsided of his three defeats in the race for President.

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1904 And 1908 Elections: Theodore Roosevelt’s “Square Deal” vs. William Jennings Bryan’s Populism – Guest Essayist: Daniel A. Cotter

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The United States Constitution is silent on the subject of corporations.    After the Civil War, as American society began to quickly evolve from agrarian to industrial, politicians from both major parties raised concerns about the rise of corporations, banks, and businesses, and the need for protection of the individual.  Against this backdrop, two important political figures emerged on the national scene.  William Jennings Bryan was a leader of the Populist Party (which would merge with the Democratic Party in 1896) who unsuccessfully ran for President in 1896, 1900 and 1908.  Republican President Theodore Roosevelt proposed a number of “progressive” initiatives through his “Square Deal” program and other policies and positions.  Other essays in this series cover the various Presidential elections in which Bryan and Roosevelt were their parties’ nominees. This essay compares the progressive and populist views of Roosevelt and Bryan, respectively.

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1864, Abraham Lincoln Defeats George McClellan: Constitutional Issues Raised By Lincoln’s Conduct Of The War – Guest Essayist: Daniel A. Cotter

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The Election of 1864: Constitutional Issues Raised by Lincoln’s Conduct of the War

The 1864 election pitted the incumbent, Republican President Abraham Lincoln, against George McClellan of the Democratic Party.  It was the first election since 1840 in which an incumbent was renominated by his own party.  A major focus of the election was the Civil War and the divided Union.  Lincoln’s actions as President would also be considered by the electorate, which reelected him in a landslide.

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1860, John Bell’s Understanding Of The Constitution – Guest Essayist: Daniel A. Cotter

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The election of 1860 featured a number of candidates vying for the Presidency, with the tensions over slavery at the forefront.   Abraham Lincoln would carry the North for the Republican Party and win the election over numerous candidates, including three contenders that garnered significant votes.  Other essays in this series cover the 1860 Presidential election and certain of the candidates.  This essay focuses on John Bell, the 1860 nominee for President from the newly formed Constitutional Union Party, and his understanding of the Constitution.

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1852, Franklin Pierce Defeats Winfield Scott, John Pitale: The Controversy Over The Fugitive Slave Act Of 1850 – Guest Essayist: Daniel A. Cotter

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The 1852 election pitted Franklin Pierce of the Democratic Party against General Winfield Scott of the Whig Party, John P. Hale of the Free Soil Party, Daniel Webster of the Union Party, Jacob Broom of the Native American Party, and George Troop of the Southern Rights Party.  In nominating Pierce, the Whig party refused to renominate the incumbent, President Millard Fillmore.  Pierce won the election in a significant Electoral College landslide over General Scott, 254-42.  As with the 1848 election, and for the next several presidential elections, a major focus of the election was on the question of slavery, especially the Fugitive Slave Act of 1850 and the Compromise of 1850.

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Election Of 1848: Abolitionism And The Constitution – Guest Essayist: Daniel A. Cotter

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The 1848 election pitted former President Martin Van Buren of the Free Soil Party against Zachary Taylor of the Whig Party, Gerrit Smith of the Liberty Party, and Lewis Cass of the Democratic Party.  The incumbent, President James Polk, did not seek reelection due to his declining health and his prior promise to serve only one term.  A major focus of election was the question of slavery and whether it would extend to the Western states.   Zachary Taylor narrowly won the election, becoming the third of four Whig Party members to become President of the United States.  As described below, Van Buren’s candidacy on behalf of the Free Soil Party likely influenced the outcome in Taylor’s favor.

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1844, James K. Polk Defeats Henry Clay, James Birney – Texas Annexation As It Related To The Issue Of Slavery: Guest Essayist: Daniel A. Cotter

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The election of 1844 was notable in that the incumbent Whig President, John Tyler, who ascended to the Presidency when President William Henry Harrison died one month after his inauguration, was not nominated by his party to seek a second term as President.  Tyler’s focus on the annexation of Texas as a slave state set the themes for the 1844 presidential election and also led to James K. Polk becoming the Democratic President.

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1836, The Tariff Issue And The Constitution – Guest Essayist: Daniel A. Cotter

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The Election of 1836: The Tariff Issue, Nullification and the Constitution

The 1836 Presidential election saw Democratic incumbent Vice President Martin Van Buren win the election in a campaign that featured four candidates from the newly-formed Whig Party running against Van Buren by region against a background of Southern threats of nullification and secession, caused chiefly by opposition to federal tariff laws as well as by the issue of slavery. The two-term incumbent, Democrat President Andrew Jackson, decided not to seek a third term and supported his Vice President, Van Buren.  Jackson’s second term and the tariff issue and nullification strategy helped lead to the formation of the Whig Party, which was formed in 1834 in opposition to Jackson and his policies.  The 1836 election was the first in which the Whig Party sought to have a party member as President.  The Whig Party strategy to regionalize the electoral votes in 1836 failed, with Van Buren capturing the Presidency.

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1832, The Anti-Masonic Controversy – Guest Essayist: Daniel A. Cotter

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The election of 1832 featured the incumbent Democratic President, Andrew Jackson, against National Republican Party candidate Henry Clay as the main contender.  Jackson easily won re-election.  A third party, the Anti-Masonic Party, also nominated a candidate, William Wirt, who received just under 8% of the popular vote but only 7 of the 286 Electoral College votes.  Formed as a single-issue party, the Anti-Masonic Party had a short lifespan on the American political stage.

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1820, James Monroe Won Unopposed: The Missouri Compromise – Guest Essayist: Daniel A. Cotter

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The Election of 1820: The Uncontested Race and the Missouri Compromise

The election of 1820 was the last presidential contest in which the ticket ran virtually unopposed.  President James Monroe and his Vice President, Daniel D. Tompkins, won all but one electoral vote, which went to John Quincy Adams.  The only other president elected without opposition had been George Washington in 1788 and 1792.  The Federalist Party ran no presidential candidate and the election effectively marked the end of the Federalist Party.  Monroe’s re-election came in the wake of Congressional debate on Missouri Compromise, which had been passed by the Senate and was still pending in the House at the time of the election.

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