Essay 25-A: The Manhattan Project To Develop Nuclear Weapons And The People

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Guest Essayist: Dan Cotter

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

 

How can a government keep one of the greatest secrets in history while still claiming to govern by the consent of the people? That question lies at the heart of the Manhattan Project, the secret wartime effort in which hundreds of thousands of Americans worked to build an atomic weapon before Nazi Germany or Imperial Japan. Warned by physicist Albert Einstein that Germany might be pursuing such a weapon, the federal government launched one of the largest and most secret undertakings in American history. Yet it did so as a nation founded on the principle proclaimed in the Declaration of Independence that governments derive ‘their just powers from the consent of the governed.’ The Manhattan Project demonstrates that in a constitutional republic, popular consent does not require every governmental action to be publicly known as it occurs.

The Framers never intended to create a direct democracy in which every decision would be submitted to a vote of the people. Instead, they established a representative republic. In Federalist No. 39, James Madison explained that a republic is a government that ‘derives all its powers directly or indirectly from the great body of the people.’ The Constitution entrusted elected representatives with the responsibility to make difficult decisions on behalf of the nation while remaining accountable through elections, separated powers, and the rule of law. Alexander Hamilton likewise argued in Federalist No. 70 that an energetic executive is essential to protecting the nation, particularly during times of crisis. That energy, Hamilton observed, often depended on secrecy and dispatch, qualities a numerous assembly like Congress could not supply, but a single, unified executive could.

Those constitutional principles guided the Manhattan Project. After the attack on Pearl Harbor, Congress exercised its constitutional authority to declare war and to appropriate the resources necessary for the nation’s defence including the Manhattan Project. Congress concealed appropriations that few in could fully trace, yet the money still enacted through the constitutional power of the purse. President Roosevelt, acting as Commander in Chief, directed the executive branch’s wartime efforts, and the United States Army Corps of Engineers managed the project under civilian leadership. Although the American people did not know its details, the project’s authority rested upon constitutional institutions created by and accountable to the people.

This distinction is the key to understanding popular consent, which differs from popular participation. Citizens do not vote on every military plan, diplomatic negotiation, or intelligence operation. Instead, they consent to a constitutional system that authorises elected leaders to act within carefully defined limits. The people also retain the power to ratify or repudiate those decisions afterwards through elections and oversight. The legitimacy of a secret wartime action therefore depends not upon complete public knowledge at every moment, but upon constitutional authority, accountability, and the continuing consent of the governed.

The Manhattan Project also revealed the extraordinary capacity of a free people working together. More than 125,000 Americans contributed to the effort. Entire communities arose almost overnight at Oak Ridge, Tennessee; Hanford, Washington; and Los Alamos, New Mexico. Scientists, engineers, construction workers, machinists, soldiers, clerks, and countless others performed their work, often knowing only a small piece of the larger project. Their collective efforts reflected another enduring characteristic of republican government: free citizens voluntarily contributing their talents to advance the common good during a national emergency. Many would later reflect soberly on the weight of what they had helped create, a reminder that even legitimate authority carries profound moral responsibility.

When the war ended, the veil surrounding the Manhattan Project began to lift. Americans began a conversation that continues today about its scientific achievements, military significance, ethical questions, and historical consequences. Congress exercised oversight, historians examined newly released records, scientists reflected on their work, and citizens debated the decisions made by their leaders. That continuing dialogue demonstrates another strength of constitutional government. Temporary wartime secrecy did not eliminate accountability; it postponed it until the danger had passed.

The Manhattan Project is remembered for transforming science, warfare, and world history. It should also be remembered as a constitutional story–one that illustrates how a free people, acting through the Constitution, entrusted extraordinary authority to representative institutions during an extraordinary crisis. The secrecy was temporary; the constitutional principles that made such an undertaking legitimate have endured for nearly two and a half centuries. The Declaration of Independence reminds us that governments derive “their just powers from the consent of the governed,” while the Constitution provides the framework through which that consent is exercised. Even one of the most closely guarded secrets in American history ultimately rested upon the enduring principle that, in the United States, all legitimate governmental authority begins with the people.

 

Daniel A. Cotter is Member at Aronberg Goldgehn. Dan focuses his practices in a variety of areas of corporate law and litigation, including insurance law, complex business disputes and counseling, employment law, corporate transactions, corporate governance and compliance, and cybersecurity and privacy law. Dan was an adjunct professor at UIC College of Law, fka, The John Marshall Law School, and has taught Insurance Law, Accounting for Lawyers and SCOTUS Judicial Biography. Dan graduated summa cum laude from UIC College of Law and received his B.A. in Accounting from Monmouth College, magna cum laude. Dan is a frequent writer and presenter on various topics, including the nation’s history and the Supreme Court, and in 2019, his book, “The Chief Justices,” was published.”

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Essay 7-B: Manasseh Cutler and the Northwest Ordinance

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Guest Essayist: Daniel Cotter

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

 

In the years following the Revolutionary War, the new United States faced extraordinary challenges. The nation was burdened by war debt, unsettled territorial claims, conflicts with Indigenous peoples, and concerns that ungoverned western expansion might lead to disorder. As thousands of settlers looked westward beyond the Appalachian Mountains, the American experiment depended on a framework that could establish legal order, encourage economic growth, honor republican ideals, and prevent the emergence of colonial-style exploitation. The Northwest Ordinance of 1787 emerged as one of the most important legislative achievements of the era, shaping the future development of the United States more than perhaps any law except the Constitution itself. Central to its crafting, advocacy, and ultimate success was Manasseh Cutler, a clergyman, scholar, and statesman.

The Northwest Ordinance directly reflected the ideals expressed in the Declaration of Independence. The Declaration proclaimed that legitimate government derives from the consent of the governed and exists to secure natural rights. However, turning those ideals into functioning institutions required thoughtful design. In the territory north of the Ohio River and east of the Mississippi River, an immense region that would eventually become Ohio, Indiana, Illinois, Michigan, Wisconsin, and part of Minnesota, the United States faced the task of building new communities aligned with self-government rather than replicating systems of imposed colonial rule. The Northwest Ordinance provided a blueprint for transforming unorganized territory into future states with equal status to the original thirteen. It rested on the principle that all new citizens deserved the same political rights and opportunities enjoyed by those on the eastern seaboard. In this way, the ordinance operationalized the Declaration’s assertion that all people possess inherent rights and should enjoy representation and liberty rather than domination.

Manasseh Cutler played a crucial role in shaping the philosophical and structural content of the ordinance and wrote the section of it prohibiting slavery in the Northwest Territory. Cutler believed that settlement should not merely provide land for individuals but should establish educated, virtuous, and civically engaged communities. Drawing on New England traditions, he advocated for schools, churches, and town-based local government. His influence helped ensure that the ordinance contained provisions supporting education, civil liberties, and moral standards, cornerstones of a free republican society. The famous clause declaring that “religion, morality, and knowledge” are “necessary to good government and the happiness of mankind” helped establish education as a public responsibility. This reflected not only Enlightenment thought, but also the Declaration’s insistence that citizens must be capable of governing themselves.

The Northwest Ordinance also represented an important step in the development of the Constitution. Drafted under the Articles of Confederation, the ordinance succeeded where many other national initiatives failed, demonstrating the need for a stronger, more effective central government. Its clear rules for territorial administration, property rights, and civil governance foreshadowed constitutional structures adopted only months later in 1787 at the Constitutional Convention in Philadelphia. The ordinance established fundamental rights that paralleled those soon guaranteed in the Bill of Rights: trial by jury, due process, habeas corpus, freedom of religion, and protection from cruel or unusual punishment. By embedding these liberties in the nation’s first major territorial law, the ordinance confirmed that rights were not limited to long-settled coastal populations but applied uniformly across the republic. In that sense, the Northwest Ordinance functioned as a founding document, bridging the Declaration’s ideals and the Constitution’s practical framework.

One of the most historically consequential provisions of the ordinance was its prohibition of slavery in the Northwest Territory. Although not eliminating slavery nationwide, the ordinance marked the first time the national government placed a boundary on the institution’s expansion. This decision had long-term implications for the balance of free and slave states and demonstrated that American founding principles would be contested, interpreted, and applied over time. While the effects of this provision were complex and imperfect, it reflected an aspiration consistent with the Declaration’s claim that all people are created equal and possessed of natural rights.

Cutler’s advocacy and vision helped ensure that the ordinance promoted not only settlement but also civic virtue. He understood that new communities required more than land. They needed education, law, faith communities, and civic institutions. These components formed the building blocks of future states that would join the Union on equal footing, not as subordinates. In this respect, the Northwest Ordinance stands alongside the Declaration and the Constitution as a foundational expression of American nation-building.

The Northwest Ordinance, shaped significantly by Manasseh Cutler, transformed American expansion into an organized, rights-based, and principle-driven project. It aligned the promise of the Declaration with the constitutional framework soon to follow, ensuring that as the nation grew, its founding ideals would grow with it. The American West would not develop as a series of colonies but as equal partners in a federal republic—fulfilling the experiment in liberty that began in 1776.

 

Daniel A. Cotter is Member at Aronberg Goldgehn. Dan focuses his practices in a variety of areas of corporate law and litigation, including insurance law, complex business disputes and counseling, employment law, corporate transactions, corporate governance and compliance, and cybersecurity and privacy law. Dan was an adjunct professor at UIC College of Law, fka, The John Marshall Law School, and has taught Insurance Law, Accounting for Lawyers and SCOTUS Judicial Biography. Dan graduated summa cum laude from UIC College of Law and received his B.A. in Accounting from Monmouth College, magna cum laude. Dan is a frequent writer and presenter on various topics, including the nation’s history and the Supreme Court, and in 2019, his book, “The Chief Justices,” was published.”

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Essay 2: External Configuration Of Northern America – Volume 1, Part 1, Chapter 1 of Democracy in America by Alexis de Tocqueville

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Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 3 – 27 of this edition of Democracy in America, and stops at the Chapter 2 heading.

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In 1831, Alexis De Tocqueville came to America, sent by France to investigate the United States of America’s prison system. De Tocqueville does that and much more in his incredible, sprawling book that provides his impressions of democracy in North America.

De Tocqueville addresses in the first volume and part and chapter the majestic, sprawling geography of the United States. He refers to the “external configuration” of North America. De Tocqueville refers to the “methodical order” that separates land and water, with two vast regions divided. He notes the two great mountain ranges that separate the regions, one being the Alleghenies in the east, and the other the Rocky Mountains in the west.

In between the two mountain ranges is the “Father of Waters, or the Mississippi.” The valley watered by the Mississippi River “dispenses good and evil at will, and in that it is like the god”. De Tocqueville notes that the waters are responsible for the country’s sterility and abundance. He was very impressed with the Mississippi Valley, making the following glowing attribution:

“The Mississippi Valley is, all in all, the most magnificent dwelling that God has ever prepared for the habitation of man, and nonetheless one can say that it still forms only a vast wilderness.”

De Tocqueville would be pleased, one would think, if he could jump ahead almost 100 years to the present and see that the wilderness is no more.

Turning to the territory that is east of the Alleghenies and west of the Atlantic Ocean, De Tocqueville characterizes that part as “a long band of rocks and sand that the sea, in retreating, seems to have forgotten.” The small territory, 100 miles wide and 900 miles long, did not lend itself to ideal or easy farming. This land De Tocqueville describes was “on that inhospitable coast” where “were born and grew the English colonies that were day to become the United States of America”. When one reads and ponders that statement, one realizes how incredible it is that those colonies became the base for this great nation of ours, which spans beyond the Rockies to the west coast and beyond.

In this first part, De Tocqueville speaks much of the Native Americans and contemplates the first European settlers’ arriving to the new place. He writes of the time before the Europeans came to our shores and the inhabitants:

He speaks of the Indians as “equal and free.” He contemplates the “landing on the shores of North America” by Europeans having little impression on the natives, as “their presence gave rise neither to envy or fear.”

“Mild and hospitable in peace, pitiless in war, even beyond the known boundaries of human ferocity, the Indian would expose himself to die of hunger in order to assist the stranger who knocked at the door of his hut in the night ….. The most famous ancient republics had never admired a firmer courage, prouder souls, a more intractable love of independence than was hiding in the wild woods of the New World.”

“The Indian knew how to live without needs, to suffer without complaining, to die singing. ….they adored God, the creator of the universe. Their notions on great intellectual truths were generally simple and philosophical.”

De Tocqueville in this chapter identifies the resources and the bountifulness of the United States and provides reasons why the nation he wrote so much about was in the position it was, even before the Industrial Revolution that was soon to come.

In closing chapter 1, De Tocqueville sets up the overall premise of his book, the democracy he experienced.

He wrote, “It was there that civilized men were to try to build a society on new foundations, and applying for the first time theories until then unknown or reputed inapplicable, they were going to give the world a spectacle for which the history of the past had not prepared it.”

Much of what De Tocqueville wrote has weathered two hundred years and gone through massive changes, yet his views on the exterior lands is amazing and somewhat forecasting, as the map and America he explored in 1831 was not the sea to shining sea nation we live in today.

Daniel A. Cotter is Attorney and Counselor at Dickinson Wright PLLC. Dan focuses his practices in a variety of areas of corporate law and litigation, including insurance law, complex business disputes and counseling, employment law, corporate transactions, corporate governance and compliance, and cybersecurity and privacy law. Dan was an adjunct professor at The John Marshall Law School, and has taught Insurance Law, Accounting for Lawyers and SCOTUS Judicial Biography. Dan graduated summa cum laude from The John Marshall Law School and received his B.A. in Accounting from Monmouth College, magna cum laude. Dan is a frequent writer and presenter on various topics, including the nation’s history and the Supreme Court, and in 2019, his book, “The Chief Justices,” was published.”

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Principle of Equal Under the Law

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Guest Essayist: Daniel A. Cotter

Essay Read by Constituting America Founder, Actress Janine Turner

 

From the beginning of our nation’s founding, the concept that all are equal under the law and have equal justice under law has been aspirational. But in the late 1890s, with the Supreme Court of the United States’ Fourteenth Amendment jurisprudence, the concept became concrete. Questions remain about whether the concept has been fully fulfilled.

The Idea

The concept of equal under the law is pretty straightforward. It means that regardless of race or color, political views, sex, religion, or other characteristics, justice is blind and everyone is treated the same and equally under the law. From the most powerful to the penniless, all are to be treated equally under the law, from due process rights to the rights under the Fourth and Fifth Amendments. A mental image of the concept can be had by taking a look at statues of Lady Justice, who has balanced scales before her and a blindfold over her eyes, so that impartiality is the standard by which all under the law are judged.

The Fourteenth Amendment

Some have referred to the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments as the “Second Founding.” The Fourteenth Amendment language provides for equal protection, Section 1 ending, “nor deny to any person within its jurisdiction the equal protection of the laws.”  Blacks were the intended beneficiaries of the language, but in its early days after ratification, the Equal Protection Clause was not always used to benefit the intended beneficiaries.

The Language of Equal Justice Under Law

In 1891, in a case, Caldwell v. Texas, 137 U.S. 692 (1891), Chief Justice Melville Fuller wrote in a Fourteenth Amendment case (emphasis added), “By the Fourteenth Amendment, the powers of the states in dealing with crime within their borders are not limited, but no state can deprive particular persons or classes of persons of equal and impartial justice under the law.” In a second case, Leeper v. Texas, 139 U.S. 462 (1891), the Fuller Court repeated the same language. (The Fuller Court in 1896 in the context of segregation also gave us the language “separate but equal” in Plessy v. Ferguson, 163 U.S. 537 (1896).)

In 1958, in Cooper v. Aaron, 358 U.S. 1 (1958), a post-Brown case involving the State of Arkansas and resistance to integration of public schools, the Court in an unsigned opinion wrote:

“The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal.”

The United States Constitution itself makes no mention, except for the Equal Protection Clause, of any equality concept.

The Pledge of Allegiance

The concept of equality is embedded in many of our national documents, including the Pledge of Allegiance, which was written in 1892 (around the time of the Texas cases referenced above. The original Pledge read, “I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all.” The words “under God” were added in 1954, during the Red Scare, by President Dwight Eisenhower.

The Supreme Court Building

Prior to the 1930s, the Supreme Court met in the Senate building, with no separate home. Former President William Howard Taft, who became Chief Justice of the United States, worked to establish a place for the Court. Architects suggested the front of the building, the West Pediment, have the phrase, “Equal Justice Under Law,” over the entrance, to remind all that when they stepped before the highest court of the nation, they each were treated with equality. From the beginning, some have debated the phrase and whether the nine justices inside the building have lived up to the aspirational goal.

Roots Go Way Back

Democratic principles have long included notions of equality under the law. For example, in ancient Greece, Pericles wrote of equal justice under law.

From the United States of America perspective, our initial document establishing this Union, the Declaration of Independence, which we recently celebrated, begins in substance with the concept of equality:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Conclusion

The debate about the law and whether all are treated “equal under the law” remains one of great interest and discussion. Our nation should be one that treats all equally under the law, and may this continue to be a goal we aspire to achieve.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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American Founding Observations of the French Revolution That Influenced the United States Constitution and Governing

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Guest Essayist: Daniel A. Cotter
Storming of the Bastille 1789 by Jean-Pierre Houël, French Revolution


While the drafting of the Constitution of the United States and the French Revolution overlapped, some of the wisdom and differences in the two revolutions help to explain a U.S. Constitution that is designed to prevent regime failure.

One element different between the two revolutions was geographic. Our American Revolution took place on our soil, far away and across the pond from our monarchy rulers, while the French Revolution took place within the country.

More fundamentally, the desired objectives were different in the two revolutions, and that in turn contributed to the ways in which the American Constitution contained provisions to address. The French focused on replacing or changing the existing government. The Americans, on the other hand, wanted to break away and form a government removed from Great Britain. With that in mind, starting with the Declaration of Independence, through the Revolutionary War, and culminating in the Constitution in 1787, the founding fathers inserted wisdom into the form of government and the United States Constitution to help prevent failures they observed in French government.

Learning also from the shortcomings of the Articles of Confederation, which were ratified in 1781 and remained in effect until the Constitution was ratified in 1789, the designers of the Constitution insisted upon branches and a robust system of checks and balances, something lacking in the French structure. The Federalist Papers #51 makes this of vast importance for consideration of the Constitution (emphasis added):

“TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices.”

Conclusion

The United States Constitution’s wisdom is shown in many ways, including with the checks and balances that exist in the Constitution. The careful drafting in 1787 has helped to ensure a continued Constitution that has separations of powers built in and that has ensured that, unlike France and the uncertainty of its revolution and subsequent history, our grand experiment continues 235 years later.

Daniel A. Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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Guarantee Clause of the U.S. Constitution: Republic of Venice, and Founding America on a Process of Governance Through Elections

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Guest Essayist: Daniel A. Cotter
Didier Descouens Photo, Venetian Arsenal "Solid ground entrance" of the Arsenale in Venice was built between 1692 and 1694 on a project by Alessandro Tremignon. Eight standing figures on pedestals on the ground: At the front row: from left to right: La Giustizia by Giovanni Antonio Comino, Marte by Giovanni Antonio Comino, Nettuno by Giovanni Antonio Comino, Bellona by Francesco Cabianca At the the second and the third rows: L'Abbondanza by Francesco Cabianca (last row on the right), La Vigilanza by Francesco Cabianca (second row on the right), Two more Allegorical statues by Giovanni Antonio Comino,(second and third row on the left)https://en.wikipedia.org/wiki/Venetian_Arsenal#/media/File:Campo_de_l'Arsenal.jpg


America’s Founders and Constitution Framers who gathered in Philadelphia in 1787, 235 years ago this May, did not arrive without examples of what worked and what did not work in past empires or republics. In Essay #12, we examined the Constitution’s wisdom in light of the Roman Empire and how certain provisions helped ensure against regime failure. In this essay, we explore further some of the Constitution’s wisdom in preventing such failures.

The Republic of Venice

While the Republic of Venice officially lasted eleven hundred years, the five hundred years referred to here is the constitutional period, from 1297 until the fall of Venice in 1797. In 1297, an ordinance was passed providing for the Council of Forty. Venice was ruled by the doge, elected by the Council, and ruled for life. The Founding Fathers would consider the form of government of Venice and provide protections against regime failure, including the Republican Guarantee Clause.

The Guarantee Clause

Article IV, Section 4 of the Constitution provides:

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

This was an important provision included by the drafters to ensure a process of governance through elections. The drafters had examples of the Republic of Venice and Rome and other regimes in collapse, with concerns about other forms of government, even those labeled republics, at its core.

In Federalist No. 57, the reality of various forms of republican government is acknowledged:

“The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people.”

In 1787, ahead of the Constitutional Convention and back from a trip to the Netherlands, John Adams published the first of his three-volume set, “A Defence of the Constitutions of Government of the United States of America.” In it, his goal was to defend the tripartite form of federal government. He examined other republics, including Venice. As to Venice, he wrote:

“It was at first democratical…. the people…determined that one magistrate should be chosen, as the center of all authority…. He was to be for life…he was to have the nomination of all magistrates, and the power of peace and war.”

Adams then discusses the evolution of the system in Venice, with power being in a few and not in the populace. Adams proposed the form of republican government that would find its way into the Constitution.

Adams concluded Volume I:

“All nations, under all governments, must have parties; the great secret is to controul them: there are but two ways, either by a monarchy and standing army, or by a balance in the constitution. Where the people have a voice, and there is no balance, there will be everlasting fluctuations, revolutions, and horrors, until a standing army, with a general at its head, commands the peace, or the necessity of an equilibrium is made appear to all, and is adopted by all.”

In Federalist No. 39, James Madison refers to Venice and how the republican form of government, as the Founding Fathers envisioned it, was to be different.  Madison wrote:

“The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.

“What, then, are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different States, no satisfactory one would ever be found. Holland…has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles…These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions.

“If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic.”

(Emphasis added.)

With the Guarantee Clause, majority rule is the way, and each state must have an electoral process in place, to prevent the usurpation of power by a monarchial actor such as the doge. It is an important safeguard put in the Constitution by the founders.

The Supreme Court has ruled that the Guarantee Clause cannot be challenged in federal court, as it is nonjusticiable.

Conclusion

The Constitution’s wisdom is shown in many ways, including with the Guarantee Clause of the Constitution. The careful drafting in 1787 has helped to ensure American Exceptionalism once again.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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Necessary and Proper by the U.S. Constitution: The Founders on Limiting Federal Control in Response to Roman Republic History

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Guest Essayist: Daniel A. Cotter
First Roman Consul - Coin - Q. Servilius Caepio (M. Junius) Brutus 54 BC. AR Denarius (20mm, 3.64 g, 6h). Rome mint. Head of Libertas right / The consul L. Junius Brutus walking left between two lictors, each carrying axe over shoulder, and preceded by an accensus. Crawford 433/1; Sydenham 906; Junia 31. Good VF, toned, scrape at top of Libertas’ head, light scratch on her neck.https://en.wikipedia.org/wiki/Roman_Republic#/media/File:Q._Servilius_Caepio_(M._Junius)_Brutus,_denarius,_54_BC,_RRC_433-1_reverse.jpg


Those who gathered in Philadelphia in 1787, 235 years ago this May, did not arrive without examples of what worked and what did not work in past empires or republics. With such wisdom, the Founding Fathers made sure the Constitution addressed regime failure. Two of those provisions are the Necessary and Proper Clause and the vesting clause of executive power.

The Necessary and Proper Clause

Article I of the United States Constitution sets forth the Congressional powers. Article I, Section 8, Clause 18 of the Constitution provides:

“[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 this Constitution in the Government of the United States, or in any Department or Officer thereof.”

This clause has been referred to as the “elastic clause” or the “sweeping clause” because the language on its face appears to expand significantly the powers of Congress. The clause has been referred to as the most important provision in the Constitution, for good reason – most federal laws are enacted under this Clause 18.

From the beginning, the clause has been debated. In Federalist No. 33, Alexander Hamilton argued the “virulent invective and petulant declamation against the proposed Constitution” caused in large measure by the Necessary and Proper Clause was misdirected, writing in part:

They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.

“What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws?”

James Madison in Federalist No. 44 reiterated much the same. Anti-federalists expressed concern about the unlimited power the Clause presented. Writing in Anti-federalist No. 32, Brutus wrote: “It is truly incomprehensible. A case cannot be conceived of, which is not included in this power. It is well known that the subject of revenue is the most difficult and extensive in the science of government.” The concern would play out in the Supreme Court over the years, beginning early in the republic.

In 1819, the Court supported the views of the Federalists, in McCulloch v. Maryland, 17 U.S. 316 (1819). Chief Justice John Marshall wrote the opinion, and after explaining the meaning of the clause, echoed the language of Federalist No. 44:

“We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.”

(Emphasis added.)

Vesting Clause

Article II, Section 1 begins: “The executive power shall be vested in a President of the United States.” Known as the “vesting clause,” this clause too has been the subject of debate. With no settled meaning of the term “executive power” at the founding, some have argued that the term refers only to those powers set forth in the Constitution in other provisions. The opponents of the minimalist view assert that the power is expansive, subject only to specific limitations included in the Constitution. The latter view is referred to as the “unitary executive” and many have argued the president has such powers, often the party of the president in the White House asserting he has such powers, but not when the opposing party is inhabiting the White House.

In Federalist Nos. 69 and 70, Hamilton wrote of the need for a singular executive and the powers. In Federalist No. 70, Hamilton wrote in part:

“This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men. Both these methods of destroying the unity of the Executive have their partisans; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction.”

Conclusion

The Constitution’s wisdom is shown in many ways, including with the two provisions covered by this essay.  The careful drafting in 1787 has helped to ensure American Exceptionalism.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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Richard Stockton: New Jersey Supreme Court Justice, Delegate to the Second Continental Congress, and Signer of the Declaration of Independence

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Essay 50 – Guest Essayist: Daniel A. Cotter

New Jersey had five signers to the Declaration of Independence, including Richard Stockton. Stockton’s statue is one of two from New Jersey in the United States Capitol as part of the National Statuary Hall Collection.

Stockton was born on October 1, 1730, near Princeton, New Jersey, to John and Abigail Stockton. A wealthy landowner, John donated land to the town of Princeton to help attract the College of New Jersey located in Newark to Princeton, later changing its name to Princeton University.

Stockton attended the College of New Jersey and after graduating, studied law with David Ogden, a prominent lawyer in Newark. Stockton was admitted to the bar in 1754 and began a prominent legal career.

In 1766, Stockton traveled to London and spent significant time in London, Scotland and Ireland. Eventually, he was able to convince John Witherspoon, a Presbyterian minister, to move to New Jersey to become President of the College of New Jersey. While on the trip, Stockton acquired his personal coat of arms and motto, “Omnia Deo Pendent,” meaning all depends on God.

Upon his return, in 1768 Stockton was elevated to a seat in the New Jersey Provincial Council, and in 1774, he was placed on the bench of the New Jersey Supreme Court.

In the same year, he drafted and sent to Lord Dartmouth, Secretary of the Colonies, “An Expedient for the Settlement of the American Disputes,” which would have provided for self-government for America without renouncing Great Britain. That proposal was rejected.  Stockton initially was advocating for representation in Parliament by the colonies and a more moderate approach to peace with Great Britain. That changed over time with the Stamp Act and other initiatives by Great Britain.

In June 1776, Stockton was elected to the Second Continental Congress.  Stockton and Witherspoon were elected to the Congress to replace two other members after New Jersey learned that the delegates were against independence. Stockton, along with his friend, Witherspoon, signed the Declaration of Independence. Stockton was the first to sign for New Jersey. One thing that Stockton requested and Congress agreed to do was to allow both sides of the argument to present reasoning. As noted, Stockton was convinced of the need and signed the Declaration.

Congress sent Stockton and a fellow signer to Fort Ticonderoga, Saratoga and Albany, New York on a fact-finding tour. When he returned to New Jersey, the British had overrun New Jersey. Stockton quickly moved his family to safety, but the British captured him. Originally, he was jailed at Perth Amboy, then moved to Provost Prison.

Stockton was the only person who was arrested by the British for adding his name to the Declaration. Reportedly, he had agreed to recant his support and signed an oath of allegiance to King George III.

After five weeks in prison, Stockton was released on parole, returning to his estate, Morven, which had been looted and much of the furnishings destroyed, his extensive library burned. While Stockton was the only person arrested, others in the fifty-six signers knew when they agreed to the action that they were subjecting their lives, their liberties, their properties to danger, including death, having committed treason, defined as “the betrayal of allegiance toward one’s own country, especially by committing hostile acts against it or aiding its enemies in committing such acts.”

These brave patriots did in fact suffer, Stockton not being the only person to suffer losses. Five signers reportedly were captured by the British and brutally tortured as traitors. Nine signers fought in the Revolutionary War and died from wounds or hardships. A large number of the 56, a dozen or more, had their homes pillaged and burned. Benjamin Franklin, one of the few signers of the Declaration and the Constitution, said after signing the Declaration, “We must indeed, all hang together, or most assuredly we shall hang separately.”

Stockton returned to the practice of law, but developed cancer of the lip that moved to his throat, and Stockton died on February 28, 1781.

In 1969, a school in Atlantic City, the Richard Stockton State College, was named after him, and later changed its name to Stockton University.  In 2017, the school began the Stockton Exhibition Project to explore why the school was named after him. There are questions about Stockton’s having slaves at his Morven estate and not releasing them at his death. In his will, Stockton included this provision:

“And whereas I have heretofore mentioned to some of my negroe slaves, that upon condition of their good behavior & fidelity, I would in some convenient period grant them their freedom—this I must leave to the discretion of my wife, in whose judgment & prudence I can fully confide.”

Some have suggested that Stockton’s statue be replaced in the Capitol Rotunda, but no major effort has been made to do so. His statue is one of only six signers of the Declaration to have a statue in the United States Capitol. One of five New Jersey signers of the Declaration, Stockton was the only signer to be imprisoned and abused for doing so.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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August 21, 1831: The Nat Turner Slave Rebellion Begins

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Guest Essayist: Daniel A. Cotter

In early August 1831, Nat Turner, an African-American preacher and slave in Virginia, began planning and preparing a revolt against slavery. Beginning on August 21, Nat and others with him killed his master’s family, then mounted horses and continued the same on farms and elsewhere of slave owners and their families. After, the Virginia legislature received petitions urging the menace of slavery be dealt with as a cause of political and economic failure.

Turner was born on October 2, 1800 in Southampton County, Virginia, a slave held by Benjamin Turner. Turner at the time of the slave rebellion was owned by Samuel Turner, Benjamin’s son, who inherited Nat when Benjamin died. Nat was smart, learning to read and write at a very early age, and often read and preached the Bible. Nat claimed to have visions that he thought were from God. Fellow slaves gave him the nickname, “The Prophet.”

One of the visions Turner credited with motivating the rebellion. In August, after postponing the rebellion due to personal illness, he saw an August 7 solar eclipse, the second one in a six month period, as the final sign that the vision was to be implemented. The slave rebellion began on August 21, 1831, and was small at first, consisting of Nat and a few of his trusted fellow slaves. The rebels in the group traveled from home to home in the neighborhood, freeing the slaves they found at each home and killing any white people they found. The small group of rebels grew over the short-lived rebellion.

Governor John Floyd received a note on August 23, 1831, alerting him “that an insurrection of the slaves in that county had taken place, that several families had been massacred and that it would take a considerable military force to put them down.”

The rebellion led by Nat Turner led to the death of almost 60 white people, including men, women and children. In order to suppress the rebellion, whites formed militias and they in turn killed approximately 200 black people, including men, women and children, many of whom had no connection to the rebellion.

The rebellion lasted only a few days, but Nat avoided capture until October 30, when a farmer discovered him hiding. Turner was tried and was convicted and sentenced to death on November 5, 1831. Less than a week later, Nat Turner was hanged at Jerusalem, Virginia, his body flayed as an example to anyone who might be thinking of rebellion.  Turner’s attorney during the trial, Thomas Ruffin Gray, wrote The Confessions of Nat Turner: The Leader of the Late Insurrection in Southampton, Va., a pamphlet that some have dismissed as not being accurate. Whatever its accuracy, nothing more detailed exists. One alleged statement of the vision that appears in the pamphlet was:

“I had a vision … I saw white and black spirits engaged in battle, and the sun was darkened … the thunder rolled in the heavens and flowed in the streams. I discovered drops of blood on the corn as though it were dew from heaven.”

Nat’s slave rebellion appears to be the only United States one that was effective and sustained. One of the repercussions of the Nat Turner Slave Rebellion was that it led to a series of oppressive legislation that prohibited many slave activities, including education, movement and assembly. Laws also expanded against free blacks. Some states banned the possession of abolitionist publications, and in emancipation debates around the time of the rebellion and subsequently, slavery was defined by some as a positive good.

Nat Turner has been considered a patriot by some and Molefi Kete Asante listed him as on of the “100 Greatest African Americans.”  Others have noted his violence and slaughtering of many. For example, historian Scot French told The New York Times:

“To accept Nat Turner and place him within the pantheon of American revolutionary heroes is to sanction violence as a means of social change. He has a kind of radical consciousness that to this day troubles advocates of a racially reconciled society. The story lives because it’s relevant today to questions of how to organize for change.”

His rebellion made it clear that slaves were not content with their enslavement, and August 21, 1831, is an important date in American History.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.  

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July 14, 1853: United States Navy Commodore Matthew C. Perry Lands in Japan

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Guest Essayist: Daniel A. Cotter

Sent by President Millard Fillmore, Commodore Matthew C. Perry went on an expedition to Japan in 1853 to persuade, even pressure, Japan to end its policy of isolation and become open to trade and diplomacy with the United States. Japan signed a treaty with the U.S. in 1854, agreeing to trade and an American consulate. The Treaty of Kanagawa was the first by Japan with a Western nation. Among many accomplishments, Commodore Perry devised a naval apprentice system, assisted the Naval Academy, worked to develop naval officers to their fullest potentials, and helped found the New York Naval Lyceum.

Commodore Perry had a long and distinguished career in the United States Navy, with his commanding of ships in both the War of 1812 and the Mexican-American War from 1846-1848, but was also instrumental at the end of his career in opening Japan to the West.

Perry was asked to travel to Japan in 1852, when President Fillmore sent Perry on a mission to open the ports of Japan for American trade. Perry embarked on his voyage on November 24, 1852, from Norfolk, Virginia.  After making various stops along the way, including at Cape Town and Hong Kong, on July 8, 1853, Perry and his contingent arrived at Uraga.  Despite demands by the Japanese to proceed to the only port open to foreigners at Nagasaki, Perry refused. Perry warned the Japanese that if forced to fight, the Japanese would suffer immense damage and that the Americans would conquer them.

After some delays caused by the illness of Japanese shogun Tokugawa Ieyoshi and debating what was to be done with the demands of Perry, the Japanese decided to accept his offered letter. Perry was allowed to land near Uraga, at Kurihama. Perry presented his letter to the Japanese delegates, and departed for Hong Kong.

Returning approximately six months later, rather than the year he had promised, Perry landed and after negotiations, the Convention of Kanagawa was signed on March 31, 1854. Perry signed on behalf of America. Signed under threat of force, the Convention contained twelve articles, including a provision for it to be ratified within eighteen months. The treaty was written in English, Japanese, Chinese and Dutch, and the text was eventually ratified by Emperor Komei. The treaty was ratified on February 21, 1855.

Perry earned the nickname or title “Father of the Steam Navy” for his advocacy of modernizing the United States Navy and pushing for wider use of the steam engine.

Perry’s efforts to open Japan to the west for trade and diplomatic relationships after many years of isolation was an important achievement, and his ability to land and present his letter on July 14, 1853, is an important date in American history.

Among others, the treaty provided which ports would be open and contained a provision that Japan would supply the United States with any advantages that Japan might negotiate with any foreign nation in the future.

Perry returned to the United States in 1855 and Congress awarded him the sum of $20,000 for his work in Japan.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.  

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April 12, 1861: Battle of Fort Sumter, the Civil War Begins

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Guest Essayist: Daniel A. Cotter

In November 1860, Abraham Lincoln was elected President of the United States. Shortly after, South Carolina became the first state to secede, doing so on December 20, 1860. Mississippi and Florida followed, with Alabama, Georgia, Louisiana and Texas joining them.  On April 12, 1861, the Civil War officially began at the Battle of Fort Sumter.

The South Carolina militia bombarded Fort Sumter, an island fortification near Charleston, South Carolina. The Confederate Army had not yet officially formed. The attack began in the early morning hours of April 12, 1861, when Lieutenant Henry S. Farley fired a mortar round over Fort Sumter as a signal to the militia to begin firing on Fort Sumter. The militia, led by General P.G.T. Beauregard, had the upper hand. The Fort, led by Major Robert Anderson, had been designed and fortified to respond to, and defend against, naval attack, but over the ensuing battle proved to be no match for land bombardment.

Fort Sumter had a total of 60 guns but many of them were on top, where Anderson’s troops would be most vulnerable to being hit by incoming fire from the militia. The twenty-one guns on the lower level did not allow the trajectory needed to hit any of the artillery of the attackers.  Anderson and his troops did what they could, engaging in an exchange of fire that lasted for thirty-four hours. Because efforts by President Lincoln to resupply Fort Sumter had not been successful, and despite moving as many supplies to the fort as possible, Anderson and his troops were short on ammunition. They reduced the number of guns being deployed.

The militia began to fire heated shots at the fort, hitting some of the wooden structures within. Fires ensued, but on April 12th, a rain shower put those fires out. On April 13th, the heated shot barrage would resume and do substantial damage to the fort.

Early in the  morning of April 13, 1861, Gustavus V. Fox arrived, leading the supply relief expedition that President Lincoln had ordered.  But his arrival would do little to change the equation. Around 1 PM on April 13, the central flagpole was knocked down. Colonel Louis Wigfall, an aide to Beauregard, without authorization rowed a skiff to the island fort and met with Anderson. He is reported to have said, “You have defended your flag nobly, Sir. You have done all that it is possible to do, and General Beauregard wants to stop this fight. On what terms, Major Anderson, will you evacuate this fort?”

Anderson agreed to a truce, proud of his troops and not having lost any of his men to the bombardment. After Beauregard’s initial contingent disavowed Wigfall’s settlement terms, Beauregard saw the surrender handkerchief and sent a second contingent, which offered similar terms to what Wigfall had. With that, Anderson surrendered, and the South had won its first battle. Over the next almost four years, the Confederate troops would hold Fort Sumter, withstanding several Union army attacks.

The Battle of Fort Sumter caused many Northerners to strongly advocate for the assembly of volunteer troops to recapture the fort and to preserve our Union. The war would go on for four years, with approximately 750,000 casualties.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else. 

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May 20, 1862: President Abraham Lincoln Signs the Homestead Act

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Guest Essayist: Daniel A. Cotter

The Homestead Act of 1862 encouraged development of farming on land as homesteads for western expansion. Heads of households could receive up to 160 acres to farm for five years, or purchase the land after six months. If homesteaders were unable to farm successfully, the land would go back to the government to be offered again to another homesteader. Pro-slavery groups feared a homestead act would give more power to anti-slavery families moving to new territories of privatized land that could become free states, so they fought passage. 

The Civil War, by May 1862, was just over a year old, having begun with the Battle of Fort Sumter. The Homestead Act of 1862 was a way for the Union to expand westward, and in some ways fulfilled the promise contained in President Abraham Lincoln’s message to Congress on July 4, 1861, when he wrote in part:

On the side of the Union it is a struggle for maintaining in the world that form and substance of government whose leading object is to elevate the condition of men; to lift artificial weights from all shoulders; to clear the paths of laudable pursuit for all; to afford all an unfettered start and a fair chance in the race of life. Yielding to partial and temporary departures, from necessity, this is the leading object of the Government for whose existence we contend.

According to the National Park Service website, the Act brought to life the “fair chance” to which Lincoln referred and the Act “was one of the most significant and enduring events in the westward expansion of the United States.”

The 1862 Act was not the first effort to expand westward, but prior efforts had been met with resistance from Southern Democrats, who feared European immigrants might inhabit the west. The Act was intended to make it easier for interested persons to move west, without the requirement of “squatters” on federal lands to pay per acre for retaining the property that was part of the Preemption Act of 1841.

The Act had minimal requirements to qualify. Any adult citizen, or intended citizen, who had never borne arms against the United States, could apply for the grant. The citizen was required to improve the land by building a dwelling and cultivating the land. After five years, they obtained the deed to the 160 acres. An inhabitant had the option of a six-month residency with minor improvements and paying $1.25 per acre, the same price as existed under the Preemption Act.

Many could not afford to effectively build a farm and cultivate the land, which included obtaining the necessary tools as well as crops and livestock. One of the first registered homesteaders was Daniel Freeman, whose claim is the site of the Homestead National Monument of America. Freeman is said to have filed his claim ten minutes after the Act became effective on January 1, 1863.

With the Homestead Act of 1862, the westward expansion truly commenced. Over its history, more than 2 million individuals filed claims, with approximately 780,000 obtaining title to the lands. More than 270 million acres were granted while the law was in effect.

Lincoln’s signing of the Homestead Act on May 20, 1862 was an important day in our nation’s history.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else. 

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July 4, 1863: Vicksburg Surrenders, Completing the Anaconda Plan to Encircle the South

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Guest Essayist: Daniel A. Cotter

The Anaconda Plan of the Civil War, crafted by U.S. General-in-Chief Winfield Scott, was designed to split and defeat the Confederacy by closing in on the coasts east and south, control the Mississippi River, then attack from all sides. Union Major General Ulysses S. Grant pressed through to take Vicksburg, Mississippi, get the final Confederate strongholds and control the Mississippi River. President Abraham Lincoln believed taking Vicksburg was the key to victory. The Battle at Vicksburg would be the longest military campaign of the Civil War. Vicksburg was surrendered on July 4, 1863.

President Lincoln said of Vicksburg, “See what a lot of land these fellows hold, of which Vicksburg is the key! The war can never be brought to a close until that key is in our pocket. We can take all the northern ports of the Confederacy, and they can defy us from Vicksburg.” Lincoln well summarized the importance of Vicksburg, Mississippi, with both the Union and Confederacy determined to control the city. Along the Mississippi River, Vicksburg was one of the main strongholds remaining for the Confederacy. If the Union could capture this stronghold, it would cut off Confederacy states west of the Mississippi from those east of the Mississippi.

The location was ideal for defending, protected on the north by swamps of the bayou and was located on high bluffs that were along the river, and was given the name, the “Gibraltar of the South.”

General Grant developed a plan. After assuming command of the Union forces near Vicksburg on January 30, 1863, the Union having waged a campaign to take Vicksburg since the spring of 1862, he had been part of an initial failed attempt to take the city in the winter. In the spring of 1863, he tried again. This time, given the location of Vicksburg, he took the bold approach of marching south on the west side of the Mississippi River, then crossing over south of the city. He led troops south 30 miles south of Vicksburg, crossing over at Bruinsburg via Union fleet.

Once landed east of the river, he began to head northeast. On May 2, his troops took Port Gibson, with his troops abandoning supply lines and sustaining themselves from the surrounding countryside. Grant arrived in Vicksburg on May 18, where Confederate General John Pemberton was waiting with his 30,000 troops. Upon arrival, two major assaults on May 19 and 22 by the Union forces failed. Grant regrouped and his troops dug trenches, enclosing Pemberton and his troops.

Pemberton was boxed in with little provisions and diminishing ammunition. Many Confederate soldiers became sick and were hospitalized. In late June, Union troops dug mines underneath the Confederate troops and, on June 25, detonated the explosives. On July 3, Pemberton sent a note to Grant suggesting peace. Grant responded that only unconditional surrender would suffice. Pemberton formally surrendered on July 4. The nearly 30,000 troops were paroled, Grant not wanting to have to address the soldiers. The Union won at Port Hudson five days later.

Lincoln, who had noted how important Vicksburg was to the Union and the war, upon hearing of the surrender, stated, “The father of the waters goes unvexed to the sea.”

With the Siege of Vicksburg, Scott’s Anaconda Plan, designed at the beginning of the Civil War with the goal to blockade the southern ports and to cut the South in two by advancing down the Mississippi River, was complete.

The Siege of Vicksburg was a  major victory for the Union, giving it control of the Mississippi River. With the Battle of Gettysburg victory around the same time, it presented a turning point for the Union in the Civil War. July 4, 1863, the surrender of Vicksburg by Pemberton, is an important date in our nation’s history.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.  

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State Supreme Courts

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Guest Essayist: Daniel A. Cotter
Mandate or Law: The American Founders on Warning Against Arbitrary, Tyrannical Dictates Diluting Rule of Law

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This year’s Constituting America’s 90 Day Study has focused on state and local government and, for each state, has discussed the constitution that each state has adopted.  In every instance, the state constitution specifies the branches of government, including a judicial branch.  How state supreme courts work in relation to the United States Supreme Court is mostly a matter of jurisdiction, with the United States Supreme Court and  “such inferior Courts as the Congress may from time to time ordain and establish” created by the United States Constitution.

The Founding Fathers of our nation did not spend as much time debating and did not spend as much time drafting and discussing Article III, which created the federal courts and gave Congress extensive power to determine the structure of the judiciary.

Alexander Hamilton, expressing his views in the Federalist Papers, had a clear view of what powers the judiciary had and how they fit in the three branches of the new national structure.

In Federalist No. 78, Hamilton noted that the judiciary would be the weakest of the three branches because it had “no influence over either the sword or the purse, …It may truly be said to have neither FORCE nor WILL, but merely judgment.” With only the power of the word, and no enforcement powers, the Founders considered the judicial branch as dependent to some extent on the political branches to uphold its judgments.

The Federalist 78 also supported the notion that the nation’s judiciary would serve as lower than, and not superior to, the legislative branch in order only to function as interpreter and not maker of law; Alexander Hamilton in Federalist 78, “The interpretation of the laws is the proper and peculiar province of the courts.”  However, this is not to say that when the John Marshall Supreme Court announced its decision in Marbury v. Madison in 1803, that their finding that “It is emphatically the province and duty of the judicial department to say what the law is” should have been a surprise to the nation.  Hamilton in Federalist 78 stated clearly how the Constitution and other lower laws were to be assessed:

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

State Courts

The state and local courts generally address and rule on cases and controversies that involve law and the constitution of that state.  However, in some instances, those state court rulings can be appealed and challenged in the federal courts.  If the issue is whether a state law violates the Constitution, then federal courts may hear the dispute.  In addition, in some instances, if the jurisdictional thresholds are met, then there might be dual jurisdiction.

An Early Clash

When John Marshall became Chief Justice of the Supreme Court in 1801, his former schoolmate, Spencer Roane, had already served as a member of the Virginia Supreme Court of Appeals for six years.  Marshall was a nationalist, his views developed at least in part from his service in the Revolutionary War and the deprivations he witnessed. Roane, who was aligned with Thomas Jefferson, was a strong states’ rights advocate.  The two clashed a number of times over the years, with Roane ruling in a case that Marshall had been an advocate, Pleasants v. Pleasants. However, Roane would engage in some nullification after Marshall became chief justice.  Roane refused to follow the decision handed down by the Marshall Court in 1815, Martin v Hunter’s Lessee.  Later, after the Court issued McCulloch v. Maryland, which addressed the United States Congressional powers vis-à-vis the state legislative powers in a controversy over the legality of the national bank, Roane wrote several editorials under pseudonyms attacking the Marshall Court’s decision. Roane also wrote a number of articles that where precursors to the Nullification Crisis.

Andrew Jackson

President Andrew Jackson did not care for the Marshall Court 1832 decision, Worcester v. Georgia, which addressed Native Americans rights and tribal sovereignty.  Jackson reportedly stated, “John Marshall has made his decision; now let him enforce it!”  While there is no direct evidence he uttered those exact words, he did write in a letter to John Coffee that “the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”

Conclusion

The federal and state courts are separate entities with different jurisdictional limits and powers.  While state issues might be litigated in federal courts if jurisdictional requirements are satisfied, United States Constitutional issues are ultimately the federal courts to decide.  The Founders at the national and state levels expected the third branch, while co-equal to the other branches, to be the least powerful branch and interpreters only of laws.

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Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Territories of the United States

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Guest Essayist: Daniel A. Cotter

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To date, fifty states have been admitted to the United States, with the last one, Hawaii, having been admitted on August 21, 1959.  However, in addition to the states, the United States has a number of major territories, including American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.

The Establishment of a United States Territory and Its Governance

As many of the essays after the first states’ ratification of the Constitution have described, the way to statehood has typically been through first being a territory or part of a territory, and then seeking statehood.  A territory is established by the passage of an organic act to organize it. Many have been enacted by Congress over the nation’s history, with the first being the Northwest Ordinance, passed in 1787 by the Continental Congress.

Current Major Territories and History

Currently, the United States has five major U.S. territories: American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. Each such territory is partially self-governing that exists under the authority of the U.S. government.

Pursuant to the Organic Act of 1900, or Foraker Act, Puerto Rico became a territory of the United States. Puerto Rico became a possession pursuant to the Spanish-American War.  It has been a territory since that act passed.  It has often been mentioned as a new state, but no serious effort has been made by Congress.

Pursuant to the Organic Act of the Virgin Islands of the United States of 1936, the United Stated added the U.S. Virgin Islands to its territories.  In 1950, Guam became a territory pursuant to the Guam Organic Act of 1950.  In 1954, the Revised Organic Act of the Virgin Islands replaced the original 1936 act.

The Northern Mariana Islands have been administered by the United States since Japan surrendered in World War II, pursuant to Security Council Resolution 21.  The people of the Islands have by referendum voted to join with Guam, but in 1969, Guam rejected the proposal. American Samoa has no organic act, and as such is considered unorganized.  Despite that, American Samoa has remained connected to the United States. In addition to the five major territories, the United States has a number of other territories that are uninhabited.

Limitations of Territories

Territories are not states and do not have full recognition that states enjoy.  Notwithstanding not being states, each territory can send a delegate to the House of Representatives. With the exception of American Samoa, whose residents are U.S. nationals, those in the other four territories are U.S. citizens. Citizens of the territories can vote in primary elections for president, but they cannot vote in the general elections for president.

In 2016, the Supreme Court of the United States held, in Puerto Rico v. Sanchez Valle, 579 U.S. ___ (2016), that territories do not have sovereignty.  In the aftermath of Hurricane Maria, the Puerto Rico governor and others argued that the territories were powerless and had little understanding or support.  As noted, they send delegates to the House, but have no vote, and cannot vote in the general election for president, despite being citizens in four of the five territories.  While they have some self-governance, they do not have sovereignty, and the reality is that there are significant limitations when a land is a territory rather than a state.

Conclusion

In our nation’s history, many of the states that today constitute the fifty were originally territories or parts of larger territories.  Thirty-one territories or parts have eventually become states.  For example, from the Missouri Territory, we have Missouri, and then from the unorganized territory once Missouri became a state, we later had Iowa, Nebraska, South Dakota and North Dakota, most of Kansas, Wyoming, and Montana, and parts of Colorado and Minnesota become states.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Wyoming: The First State to Grant Voting Rights to Women

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Guest Essayist: Daniel A. Cotter

Photo Credit: Everett Historical

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Admitted to Union July 10, 1890, Wyoming became the forty-fourth state to ratify the U.S. Constitution. Known as “The Equality State,” it currently uses the Wyoming State Constitution adopted in 1889.  While amended many times, it is the only state constitution Wyoming has had in its history, last amended in 2008.

Becoming a State

In 1869, the Wyoming Territory organized after Congress passed an act creating the territory in July 1868, with the territory seeking statehood from the beginning. Despite statehood being more than thirty years in the territory’s future, Wyoming’s first territorial governor, John A. Campbell, signed the “Female Suffrage” in 1869 and Wyoming became the first territory, then when admitted as a state, to grant voting rights to women.

In addition to that act, Wyoming has been a leader in equal rights from its organization as a territory.  Women served on juries beginning in 1870, the first female court bailiff was in Wyoming in 1870, and the first female governor in the nation, Nellie Tayloe Ross, was sworn into office in January 1925.

In 1888, the Territorial Assembly petitioned Congress for statehood, but that effort was not successful.  Despite not being approved for statehood in 1888, Wyoming Territory Governor Francis E. Warren and other territorial leadership decided to hold an election for delegates to a constitutional convention.  On September 30, 1889, the Constitutional Convention was held and a state constitution was drafted that was submitted to voters. A short time later, on November 5,1889, the constitution was approved by an overwhelming majority of Wyoming voters, 6,272 to 1,923.

With a new constitution, the Wyoming Territory pushed for statehood again, and after President Benjamin Harrison signed Wyoming’s statehood bill, Wyoming became the 44th state on July 10,1890.

The Wyoming Constitution

The state has been known as “The Equality State” from its early days, with the Suffrage Act passed and also the state constitution, which provides at Article 1, Declaration of Rights, Sections 2 and 3 the strong belief in equality, stating:

Sec. 2. Equality of all. In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.

Sec. 3. Equal political rights. Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction.

Forty-six delegates assembled in Cheyenne, Wyoming, in September 1889, and on September 30, 1889, the delegates signed the constitution.  Although amended on numerous occasions (the changes can be seen in the document at https://soswy.state.wy.us/Forms/Publications/09WYConstitution.pdf), the bulk of the Wyoming Constitution has remained unchanged since its origins almost 130 years ago.

The Wyoming Constitution has other rights that are consistent with the United States Constitution Bill of Rights, and its right to bear arms provision makes it clear it is a right to defend oneself and the state, providing:

Sec. 24. Right to bear arms. The right of citizens to bear arms in defense of themselves and of the state shall not be denied.

In addition to the extensive Declaration of Rights, the Wyoming Constitution is very detailed in terms of limitations on the state’s public indebtedness.

Conclusion

Wyoming became the 44th state to join the United States, but in equal rights, stands out as the first, earning its nickname as “The Equality State.”  Wyoming is also known as the “Cowboy State” in homage to its use of the bucking bronco as its symbol.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Illinois, Admitted December 3, 1818 as the Twenty-First State

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Guest Essayist: Daniel A. Cotter

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Admitted to the Union December 3, 1818, Illinois is the twenty-first state to ratify the U.S. Constitution. Known as “The Prairie State” as well as the “Land of Lincoln,” the Illinois State Constitution adopted in 1970 is the version currently used.  The first state constitution, however, was adopted on August 26, 1818.

Becoming a State

In April 1818, Congress passed a bill, contemplating admitting Illinois as a state if it could show that it had a population of at least 40,000 in the territory.  As my friend, Ann Lousin, notes in an excellent Chicago Daily Law Bulletin column published in August 2018, that was a tall order for the territory to complete, because the territory was well short of the required number set by Congress.  Nonetheless, the territorial governor and associates submitted to Congress that the population of white residents exceeded 40,000, and that part of the process was done.

The Illinois Constitution

Congress required that each new state have a constitution.  Delegates were selected and they met in Kaskaskia, Illinois, thirty-three men gathered at a tavern to draft a constitution.  Borrowing heavily from the Kentucky constitution, where many delegates had come to Illinois from, as well as the constitutions of Ohio and Indiana (two states that were part of the Northwest Territory), a very small group drafted the constitution.  Except for one issue, there are not records of much debate over this constitution to be submitted to Congress.

The one issue that the delegates debated heavily was the question of slavery.  Factions for pro-slavery and abolitionists sought compromise and while most of Illinois was “free soil” the Illinois Salines were permitted to have slavery.  In addition, a compromise was agreed upon, with any slave who was currently in the state remaining a slave, though their children would become free upon reaching adulthood. With this agreed upon as well as the seat of the new state’s government, the constitution was adopted on August 26, 1818. That date is proudly displayed on the Illinois state flag in the center.  The adopted constitution was submitted to Congress and, on December 3, 1818, President James Monroe signed the enabling act that admitted Illinois as the 21st state to the United States.

The initial constitution of Illinois has been amended on three occasions since 1818- in 1848, 1870 and 1970.  The last constitution granted home rule powers for certain municipalities, including the City of Chicago.

The preamble to the Illinois Constitution has a flavor that is definitely familiar, stating:

We, the People of the State of Illinois—grateful to Almighty God for the civil, political and religious liberty which He has permitted us to enjoy and seeking His blessing upon our endeavors—in order to provide for the health, safety and welfare of the people; maintain a representative and orderly government; eliminate poverty and inequality; assure legal, social and economic justice; provide opportunity for the fullest development of the individual; insure domestic tranquility; provide for the common defense; and secure the blessings of freedom and liberty to ourselves and our posterity—do ordain and establish this Constitution for the State of Illinois.

In 1968, the question of whether to hold a constitutional convention was on the ballot, and it passed.  As noted, a big feature of the new constitution that came out of that convention was home rule, which transferred power from the smaller rural communities to the more urban centers.  Ratified on December 15, 1970, Illinois adopted a new, modern constitution, one of the few post-World War II constitutions among the states.  The fourteen articles of the current constitution create the traditional three branches of government.  The 1970 Constitution also includes an extensive Bill of Rights and Article X guarantees a free public education for all Illinois residents.

Conclusion

Illinois became the 21st state to join the United States.  During the Civil War, it contributed the fourth greatest number of men who served in the Union Army.  President Abraham Lincoln, who was born and raised in Kentucky, was president during the Civil War and “The Prairie State” has become known as the “Land of Lincoln” to honor the 16th President of the United States.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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New York: Eleventh of the Original Thirteen to Become a State in the Union

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Guest Essayist: Daniel A. Cotter

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New York – July 26, 1788

Eleventh of the thirteen original states to ratify the U.S. Constitution, New York was admitted to the Union July 26, 1788, one month and a day after Virginia became the 10th state and is known as “The Empire State” (apparently based on its wealth and resources).  The current New York State Constitution was adopted in 1894, but its first was adopted on April 20, 1777.

Constitutional Convention

New York sent only three delegates to the Constitutional Convention in Philadelphia- Alexander Hamilton, John Lansing, Jr., and Robert Yates.  Only Hamilton signed the Constitution in September 1787.  Like Virginia, New York was a large, well populated, wealth state, and was important to the future of the nation.  At the time, New York was the fifth largest state by population but already an immensely important commercial participant.  After extended debate, New York ratified by a slim three vote margin, 30-27, becoming the 11th state admitted to the Union.  Upon ratification, New York sent a long, detailed ratification message, with a declaration of rights and suggested changes and modifications to the Constitution, but with approval based on an understanding “that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration.”   At the New York Convention, the Anti-Federalists were led by Governor George Clinton, and the Federalists by Hamilton.  Anti-Federalists wanted a Bill of Rights and wanted states to prevail over federal encroachments feared by the new Constitution.  When the New York Convention convened, Anti-Federalists had an overwhelming majority.

The New York Convention convened in mid-June 1788, and began debating, with a close eye on developments in Virginia.  If Virginia had rejected the U.S. Constitution, New York might have done the same.  Hamilton asked Madison to send message to New York informing the Empire State of the vote in Virginia. That dispatch arrived in Poughkeepsie, New York on July 2, 1788  That letter turned the two-thirds Anti-Federalist convention into a narrow margin of ratification, with the request and recommendation that a number of amendments be made to the Constitution.  New York made such amendment recommendations similar to those of Virginia.  In an unusual move, the New York Convention sent a circular letter to the states that called for a  second general convention to consider such amendments.

John Jay, who wrote a handful of The Federalist Papers, but would have written more except for his illness, was influential at the New York Convention. While he did not attend the Constitutional Convention, Jay would become an important national leader of the infant nation, appointed by President George Washington in 1789 as the first Chief Justice of the Supreme Court of the United States.  He would not remain in that position long, returning to New York to become Governor.  Jay also helped to negotiate peace with England and, in 1794, was appointed special envoy to seek peace with Great Britain.  Jay’s Treaty, as it became known, brought temporary peace.

The New York Constitution

Immediately following the Declaration of Independence, a Convention assembled in White Plains, New York on July 10, 1776.  Due to the Revolutionary War and George Washington and the Continental Army’s crushing defeats in New York and New Jersey, the convention adjourned and reconvened over the next nine months, culminating in its adoption on April 20, 1777. The primary drafters of this original New York Constitution were John Jay, Robert Livingston , and Gouverneur Morris.   The new constitution had a bicameral legislature and a strong executive branch.

In New York, slavery was permitted and legal until 1827.  The New York Constitution has had several constitutional conventions, with the current New York Constitution having been ratified at the New York state election in 1894 in three parts.  While nine Constitutional Conventions have been held in New York State, the state has had only four de novo constitutions- 1777, 1821, 1846, and 1894.

Conclusion

Like the 10th state, Virginia, while New York’s ratification was not required under the new Constitution for there to be a United States, had the vote gone the other way, the United States may have been for naught before they began.  The Empire State showed its wealth of wisdom in ratifying the United States and becoming the 11th state in a fledgling nation.  Had New York insisted on its voluminous amendments to the draft U.S. Constitution or that a Bill of Rights be passed with any ratification, and four votes had gone the other way, we might well have never moved to fifty states. Thankfully, we will never know.  But New York was extremely influential in the Bill of Rights being considered, including the powerful 10th Amendment, which provides: “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.”  With the 9th Amendment, the intent was to limit the powers of the federal government.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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How Virginia’s State Constitution Would Impact Construction of the United States Constitution

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Guest Essayist: Daniel A. Cotter

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On June 25, 1788, “Old Dominion” as Virginia is known, became the tenth of the thirteen original states to ratify the U.S. Constitution, admitting it to the Union June 25, 1788. The Virginia State Constitution in current use was adopted in 1971, with the original Virginia Constitution adopted in 1776.  Despite the U.S. Constitution requiring that only 9 of the 13 colonies ratify it for it to become effective, given the importance of Virginia to the new nation, had it voted down the U.S. Constitution, the future of the United States might well be in doubt.

The nickname, “Old Dominion,” likely derives from Virginia being the first of the overseas dominions of the kings and queens of England.  Virginia also is known as the Mother of Presidents and the Mother of States.  Eight Virginia natives have held the presidency, including four of the first five- George Washington, Thomas Jefferson, James Madison, and James Monroe.

On the third day of the fall session of the Virginia legislature in 1787, the Virginia House approved a convention to consider ratification of the proposed United States Constitution.  The Virginia legislature strongly debated whether to adopt or reject the document as it was submitted, or to condition any approval upon certain amendments and revisions.  John Marshall proposed a resolution that won the day, “that a Convention should be called and that the new Constitution should be laid before them for their free and ample discussion.”  The Senate followed slowly, and on January 8, 1788, a law passed calling for a state convention.

The Virginia Convention of 1788 commenced on June 2, 1788.  The delegates arriving in Richmond believed that the fate of the Constitution hung in the balance with how Virginia decided.  Even so, upon arrival at the Convention, many members had not seen the Constitution until they arrived at the Virginia Convention.  While the Virginia convention ensued, New Hampshire became the ninth state to ratify the Constitution and it became effective.  At the time of the Virginia Convention, a healthy majority of Virginians were opposed to the concept of a strong national government contemplated by the Constitution and the Virginia Convention began with that view prevalent amongst the delegates.  The Nation was watching closely how the important Commonwealth of Virginia decided, for “she also was the most important State in the Confederation in population and, at that time, in resources.”

Delegates included a veritable “who’s who” of delegates, including John Marshall, along with Governor Edmund Randolph, James Madison, George Mason, James Monroe, and Patrick Henry. On June 24, 1788, Delegate George Wythe moved the Virginia Convention to ratify the Constitution.  Henry arose for a final great speech of his life, arguing against ratification without amendments. The proposal to add amendments, many of which became the Bill of Rights, failed to be a condition of ratification, but would prove to be valuable guidance when Congress met in 1789. After further debate, on June 26, 1788, the Virginia Convention voted to ratify the Constitution by the slim margin of 89-79.  This slim margin would not have been possible had eight members of the Convention not voted against their constituents’ directives, and two ignored the instructions given them.  Virginia effectively would be the only convention where both sides of the debate were fully vetted and discussed.  The Virginia delegation argued both broad principles and minor details of the document approved in Philadelphia.

With that, the new nation could breathe easy, as its largest colony and most influential was on board.  As noted, it would see four of the first five presidents hail from Virginia.

The Virginia Constitution

Before the Declaration of Independence was made, Virginia adopted its state Constitution on June 29, 1776, and its document would be of major impact when the new nation turned to creating a Constitution of its own.  Mason, who had a large role in the drafting of the Constitution in Philadelphia, and who was one of three delegates still in Philadelphia in September who did not sign the Constitution, was one of the main drafters of  the 1776 Virginia Constitution.  The other was Madison, who is considered by many to be the Father of the Constitution for his work in connection with the Annapolis Convention, the Bill of Rights and the Constitutional Convention.  Madison would take his learnings from Virginia a decade later when he helped design the United States Constitution.

The 1776 Virginia Constitution included a bicameral legislature, the governor was the executive and there was a judicial branch.  In addition, the Virginia Constitution had an accompanying Virginia Declaration of Rights, which Mason mostly wrote, that guaranteed certain human rights and freedoms that would be the model for the Bill of Rights introduced at the first Congress of the new nation under the ratified United States Constitution.

Conclusion

While the ratification of Virginia was not required under the new Constitution for there to be a United States, had the vote gone the other way, the United States may have been for naught before they began.  Old Dominion showed its leadership and ratified the U.S. Constitution and the rest is history.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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New Jersey: Third of the Original Thirteen to Join the United States

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Guest Essayist: Daniel A. Cotter

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3 – New Jersey – December 18, 1787

Third of the thirteen original states to ratify the U.S. Constitution and join the United States,

“The Garden State” of New Jersey entered the United States December 18, 1787. The New Jersey State Constitution in use today was adopted in 1947 (effective January 1, 1948) and has been amended several times since in minor ways, but its first constitution, written during the crisis of the Revolutionary War, was adopted on July 2, 1776.

Constitutional Convention

New Jersey sent five delegates to the Constitutional Convention in Philadelphia- David Brearley, Jonathan Dayton, William Livingston, William Patterson, and William Houston.  Only the first four signed the Constitution in September 1787, as Houston missed most of the Convention due to illness.   Livingston was the first Governor of New Jersey, holding the position from 1776 until his death in 1790.  His duties in that capacity limited his participation in the Convention, but he was Chair of the Committee of Slave Trade, which developed the compromise on the slavery issue.  Livingston also was an active supporter of New Jersey’s quick ratification of the Constitution.  Brearley’s main contribution appears to be helpful in developing the Electoral  College as part of the Committee of Leftovers, Dayton’s appears to have been minimal, although he participated occasionally in debates, and Patterson introduced the New Jersey Plan, which protected the smaller states against the larger ones. The New Jersey Plan proposal contemplated a unicameral legislature, as the Articles of Confederation contained, with equal voting for each state.  It also would have had the national legislature select the executive.  Although the New Jersey Plan did not prevail, its concept of protecting smaller states was reflected in the Senate provisions.  Patterson would become an Associate Justice of the Supreme Court of the United States in 1793, a position he held until his death in 1806.

The New Jersey Ratifying Convention met in Trenton from December 11 through 20, 1787, and ratified the Constitution on December 18, 38-0, becoming the third state to do so.  Not much appeared to have been debated during the days the New Jersey Ratification Convention met, as the new federal Constitution addressed the major concerns and needs of the state.  In addition, it appears only Federalist delegates were selected to attend the New Jersey Convention.  New Jersey also had a very large debt and heavy levies would have been required, so that too provided motivation for New Jersey to ratify the U.S. Constitution.

New Jersey became the first state to ratify the Bill of Rights when they were submitted, approving eleven of the twelve proposed.  Like Delaware, New Jersey in 1787 was a smaller state and with the protections of smaller states incorporated into the final Constitution, with a  strong national government, New Jersey delegates were satisfied.

The New Jersey Constitution

Immediately before the approval of the Declaration of Independence, the New Jersey delegates met in haste to consider a state constitution to address the emergency and likely imminent invasion by British forces.  Written as a temporary document to address the urgency of the state, it remained in place until 1844.  The constitution allowed all inhabitants worth at least fifty pounds the right to vote, and contained a number of different provisions, including maintenance of the common law and a prohibition on deodand (forfeiture of objects that caused someone’s death).  It also included a free exercise of religion and an establishment clause.

On June 29, 1844, New Jersey adopted its second constitution, which limited suffrage to white males and separated the government into three branches.  The 1844 constitution was one of the first to include a debt ceiling concept in it.  The 1844 constitution was amended in 1875 to conform it to the Fourteenth and Fifteenth Amendments to the United States Constitution.

The current constitution became effective in 1947 and is similar to many state constitutions, although it also contains specific provisions addressing casinos and their regulation.  The current version also includes a provision that terms such as “person” refer to both sexes.

Conclusion

Like Delaware, had New Jersey for some reason not ratified the Constitution, there would still have been a United States.  Little did the four signers of the Constitution from New Jersey in 1787 foresee that their relatively small state would be the 11th most populous in present times.  New Jersey’s delegates were instrumental in protecting the smaller states and although the Virginia Plan ultimately was the winner in the final Constitution, the New Jersey Plan protections were incorporated.  The Garden State, along with Delaware and Georgia, were the only three of the thirteen colonies to vote unanimously at their state conventions for ratification of this new union, the United States of America.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Delaware: Admitted as “The First State” December 7, 1787

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Guest Essayist: Daniel A. Cotter

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1 – Delaware – December 7, 1787

As the Constitutional Convention came to a close in Philadelphia, America’s founding representatives signed the United States Constitution on September 17, 1787. Then, the first of the thirteen original states to ratify and approve this document, this new U.S. Constitution, which replaced the Articles of Confederation, was Delaware, signing on December 7, 1787. This signing admitted  Delaware, known as “The First State,” to the United States on December 7, 1787, subject to at least nine other colonies joining in agreeing to the U.S. Constitution. The current Delaware State Constitution in use, which is the fourth constitution in Delaware,  was adopted in 1897, but its first was adopted on September 20, 1776.  The first constitution referred to the state as “The Delaware State.”

Constitutional Convention

Delaware  sent five delegates to the Constitutional Convention in Philadelphia- Richard Bassett, Gunning Bedford, Jr., Jacob Broom, John Dickinson, and George Read.  Surprisingly, all five signed the Constitution in September 1787.  (Evidence is that Dickinson was not feeling well, and left the convention a day early, asking Read to sign his name to the document.)  Of the twelve colonies who signed the Constitution, only Pennsylvania had more signers than Delaware (eight).

The delegates were sent to Philadelphia with instructions that they were okay to offer amendments to the Articles of Confederation, but only “to render the Federal Constitution adequate to the Exigencies of the Union.”  These five delegates, who had attended the Annapolis Convention, were given instructions they could not change the one state, one vote framework for the Articles.

Dickinson has been credited with proposing a solution to address a proposal that the two houses of the Congress be represented according to population, offering that the Senate provide for every state to be equal and the state legislatures to pick the Senators.

Delaware was a very small state in area and in population.  They had no major economic center or product, and yet despite small size, their coast line was large.  The Delaware Ratifying Convention met on December 3, 1787 and, shortly after meeting, became the first state to ratify the Constitution, by a unanimous vote, 30-0, on December 7, 1787.  The only other states to vote unanimously to ratify the Constitution were New Jersey and Georgia.  Delaware beat Pennsylvania by five days in ratification.

Reports of the Delaware Ratifying Convention have been lost.  But by accounts, other than a petition to reject delegates who had been selected by Sussex, not much debate ensued.  Citizens of Delaware desired a stronger national government than the Articles provided. As part of the approvals, Delaware also recommended cession of land for the new Federal Capital to be located within its boundaries.  That last offer of course did not happen.

Of the five delegates who attended the Constitutional Convention in Philadelphia, Dickinson was probably the most prominent.  Known as “Penman of the Revolution,” he wrote the Liberty Song in 1768.  In that same year and the next, he also wrote a series of papers known as Letters from a Farmer in Pennsylvania, attacking British taxing policies.

In 1788, after Delaware ratified the Constitution, Dickinson wrote nine letters as Fabius, answering various Antifederalist arguments, in an effort to reinvigorate ratification progress in other states.

The Delaware Constitution

Immediately following the Declaration of Independence, the Delaware General Assembly met and approved the calling of a state constitutional convention.  The convention met in August 1776, naming Read President.  On September 20, 1776, the convention approved the new constitution and it became effective.  Delaware became the first state to have a convention write a constitution after the Declaration of Independence.  The constitution had a bicameral legislature, an executive with broad authority after consulting with the Privy Council, and a judicial branch that the Executive and General Assembly selected. The constitution prohibited the entry of anyone from Africa or other places for the purpose of holding the individuals in slavery.

The 1776 constitution was replaced by the Delaware Constitution of 1792, which remained in effect until 1831, when a convention approved a third state constitution. The current constitution, Delaware’s fourth, was adopted in 1897 and remains in effect.

Conclusion

Unlike some larger, more influential states, had Delaware for some reason not ratified the Constitution, there would still have been a United States.  However, its delegates contributed to the Constitutional Convention in Philadelphia, including the proposal that eventually addressed small versus large state representation, and through its leadership in being the first state to ratify the Constitution and by a unanimous vote.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Daniel Patrick Moynihan (1927-2003) – Senate Member from New York, Democratic Party Leader

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Guest Essayist: Daniel A. Cotter

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The press and media are full of reports of extreme partisanship and acrimony in Congress and with the White House in recent times.  But not that long ago, the parties at least appeared to work together to solve national problems regardless of party affiliations.  By no means did they agree on everything or make a president with different political party affiliation struggle to achieve his agenda easy when the Congressional power was in the other party’s hands.  But when Daniel Patrick Moynihan retired in 2001, we lost one of those able to navigate across party lines.

Early Life and Career

Moynihan was born on March 16, 1927 in Tulsa, Oklahoma to John Henry, who was a reporter for a local paper in Tulsa, and Margaret Ann (nee Phipps).  When he was six, the family moved to Hell’s Kitchen in New York City.  Moynihan worked an odd assortment of jobs as a child and graduated from Benjamin Franklin High School in East Harlem. After a short stint as a longshoreman, Moynihan attended the City College of New York, which provided free education for New York residents.  After one year at the city school, he joined the United States Navy in 1944 and then enrolled at Tufts University, where he received a degree in naval science in 1946.

After his military service, Moynihan obtained a second undergraduate degree from Tufts in 1948 and then received an M.A. from its Fletcher School of Law and Diplomacy.  Moynihan attended the London School of Economics from 1950 to 1953 as a Fulbright fellow.  Moynihan became politically active in the 1950s, serving in various capacities for New York Governor Averell Harriman.  In 1960, Moynihan was a Democratic National Convention delegate.

National Politics

Shortly after the 1960 DNC Convention, Moynihan began to serve in the national government, something that he would continue for the next fifty years.  He served the Kennedy administration as special then executive assistant to the Department of Labor from 1961 to 1963, and then was appointed the Assistant Secretary of Labor for Policy, Planning and Research from 1963 to 1965.  He worked primarily during that time on what became known as the “War on Poverty.”  In this role, Moynihan issued a report, The Negro Family:  The Case for National Action, known also as “The Moynihan Report,” that was attacked by the left and by the right.  Moynihan would later receive some criticism when in 1994, after the Republicans swept Congress, when he noted with respect to the welfare system, “The Republicans are saying we have a hell of a problem, and we do.”

Moynihan left the Johnson administration in 1965, returning to academics.  In January 1969, Moynihan became Assistant to the President for Domestic Policy and executive secretary of the Council on Urban Affairs under President Richard Nixon.  From late 1969 until the end of 1970, Moynihan served as Counselor to the President.  In 1973, Moynihan became Ambassador to India and, in June 1975, he became United States Ambassador to the United Nations.  The United Nations post was by President Gerald Ford, another Republican.

Senator Moynihan

In 1976, Moynihan was elected to the United States Senate, and would serve for the next twenty-four years.  As a Senator, Moynihan supported the ban on partial-birth abortions, and opposed President Bill Clinton’s universal health care coverage push.  He also opposed NAFTA and the flat tax.  He also voted against the Defense of Marriage Act and the Communications Decency Act.

Despite his working for previous Republican administrations, Moynihan was not a supporter of President Ronald Reagan’s hawkish Cold War policies.  However, during the time that Moynihan served in the Senate, the Democrats controlled the Senate for much of that period.  Despite that party difference, Moynihan was someone who could effectively work across the aisle and work with Republican presidents and congressional members to address various issues of national import.

In a 2010 Daily Beast column (available at https://www.thedailybeast.com/daniel-patrick-moynihan-letters-we-need-more-like-him), John Avlon wrote:

The Moynihan that emerges in these letters is engaging and unfailingly civil, armed with statistics and a sweeping view of history. He could be surprisingly thin-skinned—unlike many politicians, his was a sensitive soul. But it is clear that his counsel was sought by presidents because he brought more light than heat to the conversation. He thought with a sense of historic perspective and he always felt the possibility as well as the limits of government action. He believed that government could improve the lives of its citizens, but he recognized that government overreach could create unintended consequences and provoke political backlash.

Conclusion

Moynihan is one of a dying breed in Washington- someone who effectively could interact with members and presidents from the opposing political party and who as Avlon notes tried to bring the long perspective to various issues.  He was not always right and could take umbrage at those who did not agree with him, but he tried.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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Thomas Phillip, Jr. (Tip) O’Neill (1912-1994) – House Speaker, Democratic Whip and Majority Leader from Massachusetts

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Guest Essayist: Daniel A. Cotter

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As noted in the Daniel Patrick Moynihan column in this series, the press and media are full of reports of extreme partisanship and acrimony in Congress and with the White House in recent times.  But not that long ago, the parties at least appeared to work together to solve national problems regardless of party affiliations.  Like Moynihan, Thomas Phillip (Tip) O’Neill was one of those who was able to work with the other side at least when it came to foreign affairs.

Early Life and Career

Tip was born on December 9, 1912, to Thomas Phillip O’Neill, Sr. and Rose Ann (nee Tolan), in North Cambridge, Massachusetts.  His mom died when he was nine months old and his father was a bricklayer who became Superintendent of Sewers.  Tip’s nickname came from a Canadian baseball player whose last name was O’Neill and whose nickname was “Tip.”  Tip graduated from Boston College in 1936.  Tip ran for a seat on the Cambridge City council as a college senior, the only election he ever lost.  It was from that campaign that he learned the lesson that would become his most famous quote- “All politics is local.”

Fresh from Boston College, Tip ran for and won election to the Massachusetts House of Representatives.  Tip became the Minority Leader of the Massachusetts House from 1947 to 1949 and was Speaker of the Massachusetts House from 1949 to 1953, becoming the first Democratic Speaker in Massachusetts’ history.

National Politics

Tip ran for the United States House of Representatives vacated by John F. Kennedy in 1952 when Kennedy ran for the Senate.  He won and was re-elected 16 more times.  During his second term in the House, he was selected to the House Rules Committee.  Tip bucked President Lyndon B. Johnson’s support of the Vietnam War, coming out opposed to the United States intervention.

Tip was elected House Majority Whip in 1971 and, in 1973, was elected House Majority Leader.  In that role, he called for the impeachment of President Richard M. Nixon.  A scandal in the House caused the then-Speaker, Carl Albert, to retire, and Tip was elected Speaker in 1977.  He would hold that position for the next ten years, until he retired from Congress on January 3, 1987.

Tip was a proponent of universal health care and tackling jobs and poverty.  When Jimmy Carter became President in 1977, expectations were that there would be much accomplished.  However, while President Carter was focused on reducing government spending, Tip had other ideas as Speaker, including rewarding party members.  When Ronald Reagan became president, Tip and the new president collapsed, and the Senate had shifted to a Republican majority.  Tip called President Reagan “the most ignorant man who had ever occupied the White House” and was otherwise very critical of President Reagan.  Despite the public vitriol, the two were always on friendly terms.  In one interview, President Reagan mentioned that he had seen Tip make unflattering comments about Reagan.  Reagan called Tip to ask why the attacks, that he thought these two were friends.  Tip is reported to have replied, “Buddy, it is just politics. After 6 p.m. we are friends.”  After a visit between the two early in Reagan’s first term, the two were able to navigate social security reform and a tax reform plan and other legislation.

When it came to foreign affairs and our involvement in the Soviet-Afghan war, Tip gave his approval and through his House positions ensured that billions went to the Mujahideen.  When Reagan was shot, Secretary of State Alexander Haig asserted he was in charge, O’Neill was the next in line after Vice President George H.W. Bush.

Tip was also very involved in the peace efforts in Northern Ireland.  He and several other congressional leaders helped to achieve peace between Northern Ireland and England.  Tip died on January 5, 1994, of cardiac arrest.  His wife of many years, Mildred “Millie” Anne Miller, outlived him by almost a decade.  President Bill Clinton said of Tip at his death:

“Tip O’Neill was the nation’s most prominent, powerful and loyal champion of working people…”

Conclusion

While Tip and Reagan had different political views and approaches, they showed that great debates and the efforts of compromise sometimes can result in good end results for the nation.  Tip is the third longest serving Speaker in United States House history and was a strong “New Deal Democrat” who believed strongly that through public service he truly could positively affect the lives of working people.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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Lyndon Baines Johnson (LBJ) (1908-1973) 36th U.S. President, Vice President, House Member, Senate Minority and Majority Leader from Texas

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Guest Essayist: Daniel A. Cotter

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Author Robert A. Caro has been at work for years writing his definitive biography of Lyndon Baines Johnson.  In Volume 3, “Master of the Senate,” Caro explores the twelve years that LBJ spent in the Senate and truly became the Master of that body, the youngest majority leader in history.  But as the title of this installment notes, he held several other powerful positions in his long political career that Caro continues to chronicle.

Early Life and Career

LBJ was born on August 27, 1908 in Texas, to Samuel Ealy Johnson Jr. and Rebekah Baines.  He graduated from Johnson City High School, then in 1924 enrolled at Southwest Texas State Teachers College but left shortly after to move to Southern California. After working for a few years, he returned to Southwest (later became Texas State University) and obtained his degree while working, including teaching at a segregated school teaching Mexican-American children.  He then began his career teaching public speaking.

Politics

LBJ began his long career in politics in 1931, after Richard Kleberg won election as a United States Representative from Texas, naming LBJ his legislative secretary. It was the perfect job for the politically aspiring LBJ because Kleberg handed most of the day-to-day duties to LBJ.  LBJ was a strong supporter of President Franklin Delano Roosevelt and FDR’s “New Deal.”

LBJ married “Lady Bird” in 1934.  In 1935, he was named the head of the Texas National Youth Administration but resigned to run for Congress.  From 1937 until 1949, LBJ served in the House of Representatives.  In 1949, he began his tenure as a United States Senator, where he would serve until 1961, when he became President John F. Kennedy’s Vice President.  LBJ served as the Majority Whip from 1951 until 1953, Minority Leader from 1953 to 1955, and then Senate Majority Leader from 1955 until he left the Senate.

While in the House, he was appointed a Lieutenant Commander in the U.S. Naval Reserve and served active duty starting in December 1941, just after the attack on Pearl Harbor.  LBJ earned the Silver Star, the American Campaign Medal, Asiatic-Pacific Campaign Medal, and the World War II Victory Medal.  He was released from active duty on July 17, 1942.

The 1948 Senator race has in retrospect alleged to have been rigged by LBJ, and he received an assist in his efforts to be declared the winner by Abe Fortas, a friend who he would later reward with a Supreme Court seat.

As soon as LBJ arrived, he began his efforts to gain the respect and trust of senior Senators and gained favor early.  He was appointed to the powerful Senate Armed Services Committee and soon created the Preparedness Investigating Subcommittee.  When he became the Minority Leader in 1953, he was the youngest person to hold that position.  He eliminated seniority as the criteria for committee appointments, giving him added power.  LBJ as Majority Leader worked closely with President Dwight D. Eisenhower to pass his agenda.

According to Caro, LBJ was the most effective Senate Majority Leader that we have ever had in our history, understanding who each Senator was and what it would take for a vote on a piece of legislation.  He would use his mastery demonstrated in the Senate to great advantage when he became President.

Vice President and President

The Kennedys knew they needed the votes of Southern Democrats if JFK was to be successful and LBJ became his Vice President.  Due to a change in Texas law LBJ requested, he became not only Vice President but also was re-elected to the Senate.  He withdrew from the Senate as required on inauguration.

LBJ sought to maintain the powers he held as Majority Leader, but the Democratic Caucus rejected his efforts.  JFK kept him busy with various task forces and committees.  On November 22, 1963, on Air Force One, he was sworn in as President after JFK was assassinated.  President Johnson strongly pressed for passage of the Civil Rights Bill to honor JFK and his legacy.  LBJ created the Warren Commission to investigate JFK’s assassination.

LBJ knew how to get things through Congress and used various techniques and his ability to convince members of the Senate to vote to get the Civil Rights Act of 1964 and the Voting Rights Act of 1965 passed.  LBJ pushed for his “Great Society” legislation and began a “War on Poverty” as well.

The LBJ presidential years were productive on the legislative front, with the Immigration and Nationality Act of 1965, the Elementary and Secondary Education Act of 1965, Head Start legislation, and many other pieces of legislation.

LBJ’s presidency also saw steep escalations of our presence in Vietnam.  On March 31, 1968, he surprised the nation when he announced, “I shall not seek, and I will not accept, the nomination of my party for another term as your President.”  A variety of reasons are given for LBJ’s decision, including Vietnam, his failing health, and his nomination of Thurgood Marshall as the first African-American to sit on the Supreme Court of the United States.

Conclusion

LBJ died of a massive heart attack on January 22, 1973.  LBJ is remembered for his significant legislative achievements both as a member of Congress over a long period of time and in his Vice President and President roles.  That legacy is offset by his Vietnam War strategy and results.  Few if any senators in the last fifty years have demonstrated the mastery that LBJ possessed.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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James G. Blaine (1830-1893) – House Speaker and Senate Member from Maine, Secretary of State, Presidential Candidate

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Guest Essayist: Daniel A. Cotter

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The Great Debates – James Blaine (1830-1893)

James G. Blaine was a politician from Maine who first served in the Maine House of Representatives and then moved to the federal stage, where he became Speaker of the United States House of Representatives, a United States Senator, Secretary of State and Republican nominee for President.  Nicknamed “the Magnetic Man,” Blaine was one of the leaders of the Republican Party during the late 19th Century and one of the great debaters.

Early Life and Rise in Politics

Blaine was born in Western Pennsylvania.  His father was a Whig party supporter and his great grandfather was Ephraim Blaine, who served as a Commissary-General under General Washington.  Blaine’s mother was Irish Catholic and Blaine’s parents brought their daughters up Catholic and their sons, including Blaine, Presbyterian.

Blaine enrolled in Washington College (now Washington & Jefferson College) at the age of thirteen, graduating four years later near the top of his class.  Blaine considered attending law school but decided to get a job.  He was hired at Western Military Institute as a professor of math and ancient languages, and married a teacher, Harriet Stanwood, on June 30, 1850.  In 1852, Blaine took a job at the Pennsylvania Institution for the Instruction of the Blind (now Overbrook School for the Blind).  In 1853, Blaine left teaching to become editor and co-owner of the Kennebec Journal, a strong supporter of the Whigs.  Upon that party’s demise, Blaine turned his attention to the newly formed Republican Party.

In 1856, Blaine was elected to the first Republican National Committee.  In 1858, Blaine made his first run for an elected position, winning his race for the Maine House of Representatives and winning each of his reelection efforts in 1859, 1860 and 1861, winning a healthy majority of the vote.  In 1859, Blaine also became chairman of the Maine Republican state committee.  In 1861 and 1862, Blaine was elected Speaker of the Maine House of Representatives.

Congressional Work

In 1862, Blaine successfully ran for a seat in the United States House of Representatives, one of the few Republicans to win in the midterm elections.  In the 1860s, those elected in an even year began their actual congressional duties the following December.  In his first term, Blaine was relatively quiet.  Blaine advocated for the commutation provision contained in the military draft law, and he also made a proposal for a constitutional amendment that would have permitted the government to impost an export tax.

Blaine won reelection in 1864 and that Congress focused primarily on Reconstruction.  Blaine took the position that the Fourteenth Amendment required three-fourths of the states that had not seceded, losing the argument to the majority who agreed that it required three-fourths of all states.  Blaine did vote in favor of harsh measures on the South but voted against a bill barring Southerners from attending the United States Military Academy.  When the House voted on the impeachment of President Andrew Johnson, Blaine voted in favor of impeaching the president.

Blaine was a strong advocate for the strength of the dollar, rejecting the efforts to issue additional greenbacks to pay interest on pre-war bonds.  In 1869, Blaine was elected Speaker of the House, winning unanimous Republican support.  Blaine was elevated to the position in part because of his strong parliamentary skills and President Ulysses S. Grant thought he was a skillful leader.  Blaine served six years in the Speaker role.  During the 1872 campaign, rumors and accusations were leveled against Blaine that he had received bribes in the Credit Mobilier scandal, charges that were never proven but continued to haunt Blaine.

On February 4, 1875, after much debate and great watering down of its contents, the Civil Rights Act of 1875 passed the House by a vote of 162 to 99.  Speaker Blaine worked hard and cooperated with President Grant to get the act through the House.

In December 1875, Blaine proposed a joint resolution, the Blaine Amendment, to address the separation of church and state by prohibiting direct federal government aid to religiously affiliated educational institutions.  The bill followed a speech by President Grant at a veterans meeting.  The Amendment would have been an amendment to the United States Constitution. Despite Blaine’s efforts, which were successful in the House, by a vote of 180 to 7, the bill failed in the United States Senate by four votes.  It never became law at the federal level, but 38 of the 50 state constitutions in the United States contain versions of the Amendment.

Blaine was considered a favorite for the 1876 Republican presidential nomination, but a scandal involving railroad bonds emerged. Blaine denied the accusations and was believed until some letters were discovered. Blaine was able to reclaim the letters, but the damage was done.  Although Blaine was nominated at the Republican convention and referred to as “an armed warrior, like a plumed knight,” he lost to Rutherford B. Hayes.

In 1876, Blaine was appointed by Maine Governor Seldon Connor to a vacant Senate seat.  Blaine served five years but did not have any significant leadership role.  In 1880, Blaine was again nominated at the convention, but lost to Garfield.  In 1881, President Garfield nominated Blaine to Secretary of State, which he accepted.

Blaine eventually was the Republican nominee in 1884 but lost to Grover Cleveland.

Conclusion

Blaine had influence during Reconstruction in his role as Speaker of the House and was a leader of the newly formed Republican Party for many years but fell into obscurity not long after his death in 1893.  His most lasting contribution might be the Blaine Amendment, which many states adopted, and which laws are now being reviewed as part of the current discussion of school vouchers and impact of the tax reform bill.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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The Great Debates – Civil Rights Act of 1964

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Guest Essayist: Daniel A. Cotter

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On June 11, 1963, President John F. Kennedy issued his Report to the American People on Civil Rights, calling on Congress to pass a civil rights bill to address discrimination and segregation against African Americans.  Kennedy’s civil rights bill included a ban on discrimination in places of public accommodation and tackled segregation in schools, but did not address many other issues affecting African Americans, especially in the South.  Kennedy was assassinated before the bill was approved by Congress.  President Lyndon B. Johnson made passage a priority.

The Congressional Debates

Prior to his televised appearance to discuss his Report, President Kennedy met with Congressional Republicans to discuss the legislation. On June 13, 1968, Senate Minority Leader Everett Dirksen and Senate Majority Leader Mike Mansfield expressed support for Kennedy’s proposal, except for the portion dealing with public accommodations.  President Kennedy submitted his bill as originally drafted to Congress on June 19th.  The House Judiciary Committee discussed the bill and held hearings, adding provisions to the bill to enhance protections.  In addition, the Judiciary Committee added Title III, which authorized the Attorney General to pursue legal remedies.

In late October, Kennedy met with the House leadership to figure out a path to sufficient votes for House passage.  The House Judiciary Committee reported the bill out in November and referred to the Rules Committee, chaired by Virginian Howard W. Smith, a segregationist, who promised that the bill would not emerge from his committee.  On November 22, 1963, President Kennedy was assassinated and LBJ was sworn in as President.  President Johnson supported the bill and used his experiences in the Senate to find ways to ensure passage.

On November 27, 1963, President Johnson made clear his position on passage of the civil rights bill when he made his first joint session of Congress, stating:

“No memorial oration or eulogy could more eloquently honor President Kennedy’s memory than the earliest possible passage of the civil rights bill for which he fought so long.”

In a rare parliamentary procedure, Judiciary Committee Chair Emanuel Celler filed a petition to discharge the bill from the Rules Committee and the premises of Chair Smith.  When the winter recess arrived, the petition was short of required signatures.  Upon return from recess, sensing the strong support in the North for the bill, Smith permitted the bill to pass through his Rules Committee.

President Johnson then navigated the Senate.  The Senate Judiciary Committee Chair James O. East land, a Democrat from Mississippi, strongly opposed the bill.  Senator Mansfield invoked a procedural tool to avoid referral to the Judiciary Committee, reading the bill a second time after it had initially been waived, permitting the bill to reach the Senate floor directly for debate.

On March 30, 1964, the bill came for debate on the Senate floor.  The Southern Bloc implemented a filibuster, led by Senator Richard Russell, a Democrat from Georgia, who stated:

“We will resist to the bitter end any measure of movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our states.”

Senator Strom Thurmond, who had set a record filibuster of more than twenty-four hours against the Civil Rights Act of 1957, strongly opposed the bill, stating:

“This is the worst civil-rights package ever presented to the Congress and is reminiscent of the Reconstruction proposals and actions of the radical Republican Congress.”

The filibuster continued for 54 days.  Finally on June 10, 1963, Senator Robert C. Byrd finished his 14 hours, 13 minutes speech.  Senator Russell made final opposition comments, then Senator Dirksen from Illinois spoke for the bill proponents, declaring, “the time has come for equality of opportunity in sharing government, in education, and in employment.  It will not be stayed or denied. It is here!”  During roll call on cloture, Senator Clair Engle from California did not respond verbally, having lost his ability to speak from a brain tumor.  However, he pointed to his eye to affirmatively vote.  Cloture passed, 71 to 29, four more votes than needed for cloture.

The resulting vote on cloture of the filibuster was the first time in the Senate’s history that a filibuster on a civil rights bill had been brought to cloture.

On June 19, the compromise bill passed the Senate, 73-27, and then quickly passed through the House-Senate Conference Committee.  On July 2, 1964, President Johnson signed the law, and the long road to passage was complete.

Despite its historic nature, the Civil Rights Act of 1964 had limited impact at the time of its passage, but has been influential on subsequent civil rights bills and was upheld generally in the Supreme Court decision, Heart of Atlanta Motel v. United States.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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Stephen A. Douglas and Abraham Lincoln in Congressional Debate: The Compromise of 1850, Kansas-Nebraska Act of 1854

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Guest Essayist: Daniel A. Cotter

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The Great Debates – Stephen A. Douglas (1813-1861)

Known as “the Little Giant,” Stephen A. Douglas was a politician from Illinois who designed the Kansas-Nebraska Act and served as a member of the House of Representatives and the Senate, and was the Democratic Party nominee for president against Abraham Lincoln in the election of 1860.  Lincoln and Douglas also faced each other during the 1858 race for Senator from Illinois, and the two engaged in a series of famous debates on the question of slavery and the future of our nation.  Named the Little Giant because he was small in stature, he was not little when it came to politics and his place in our history as a great debater.

Early Life and Rise in Politics

Born in Vermont, Stephan Arnold Douglass, he eventually dropped the second s.  Douglas’ father died when Douglas was a baby.  His mother remarried and they moved to western New York. Eventually Douglas made his way to Illinois and was admitted to the bar.  He courted Mary Todd, who married Lincoln, and the two faced off against each other on many other occasions.  In 1847, he and his wife, Martha Martin, moved to Chicago.

Douglas became active in Illinois politics in the Democratic Party, serving as State’s Attorney of Morgan County in 1834.  He served in the Illinois House of Representatives, served as Illinois Secretary of State and then at age 27, was appointed to a position as Associate Justice of the Illinois Supreme Court when the number of justices was expanded.  In 1843, Douglas was elected as a United States Representative and served in that capacity until 1847, after the Illinois General Assembly voted elected him as a United States Senator.  Douglas would serve the rest of his public career in that position, serving from 1847 until June 3, 1861, when he died at the age of 48.

Congressional Work

In 1850, a sectional crisis ensued when California was admitted as a free state with no slaveholding state admitted at the same time.  Douglas was a strong advocate for compromise, supporting the efforts of Henry Clay.  Clay was a political rival, but Douglas took Clay’s bill for a compromise that had failed to garner adequate support and split it into separate bills, helping to navigate the successful approval of the Compromise of 1850, which reaffirmed the compromise on territories and slavery from the Missouri Compromise.

Douglas strongly advocated popular sovereignty, allowing the people rather than the national government to determine positions on slavery.  Lincoln used this position to try to distinguish himself in 1858 in the United States Senator race.  In 1854, Douglas invoked popular sovereignty during a dispute over the admission of the Nebraska Territory.

Various proposals for a transcontinental railroad were being made, with one potential route going through Chicago that would benefit Douglas.  Southern leaders offered a deal to Douglas- they would support the central route that went through Chicago if Douglas allowed slavery in the new territories.  The agreement effectively repealed the Missouri Compromise and the Compromise of 1850.  Douglas defended his position with popular sovereignty, winning over many from the north.  Lincoln criticized Douglas’ position in a series of speeches. Despite some critiques, Congress passed the Kansas-Nebraska Act, effectively overruling the Missouri Compromise.

In 1856, Douglas was a candidate for the Democratic Presidential nomination but was not the nominee.  In 1857, the United States Supreme Court issued the Dred Scott v. Sandford decision, striking down key provisions of the Missouri and 1850 Compromises and made the Kansas-Nebraska Act largely moot.  Douglas attempted to take a weak position on the decision to keep support from both the North and the South.

Douglas faced Senate reelection in 1859 by the Illinois legislature. Douglas represented the Democrats and the Republicans chose Lincoln.  The two eventually agreed to a series of a joint appearances, which became known as the Lincoln-Douglas Debates.  Douglas stood behind his popular sovereignty views.  Lincoln argued that slavery was a moral issue that the nation must decide.  In what became known as his “House Divided” speech, Lincoln stated in June 1858 (prior to the Lincoln-Douglas Debates, but consistent message):

“A house divided against itself cannot stand. I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing or all the other. “

In one of the speeches, at Galesburg, Illinois, Douglas asserted the Declaration of Independence did not apply to non-whites, stating, “This Government was made by our fathers on the white basis.”

At a debate in Freeport, Illinois, Lincoln pressed Douglas on his support of Dred Scott. Douglas took the position that the Supreme Court had explicitly prohibited states from not allowing slavery, but people of Territories had the ability to exclude slavery by “unfriendly legislation.”  This position came to be known as the Freeport Doctrine and Douglas was re-elected to the Senate, defeating Lincoln.

Conclusion

In the Presidential election of 1860, the two nemeses would face off again.  Douglas was the Democratic nominee, but the split on slavery positions resulted in splintering of the Democrats, with Southern Democrats nominating John C. Breckinridge and the Constitutional Union Party nominated John Bell.  Lincoln won and the Southern states quickly seceded.  Post-election, Douglas attempted to make compromise to avert secession and denounced it.  Douglas died on June 3, 1861, of typhoid fever.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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The Great Debates – Congress and the Missouri Compromise of 1820

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Guest Essayist: Daniel A. Cotter

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When the United States Constitution was ratified in 1789, debates over slavery and how to count slaves for purposes of legislative representation and tax apportionment threatened to derail an agreed upon new constitution.  The Three-Fifths Compromise resulted and while it led to the ratified Constitution, the issue of slavery continued to be a major issue of tension between the North and South.  In 1820, those tensions intensified when Missouri sought admission to the Union.  The Missouri Compromise was the solution that pushed civil war back several decades.

The Missouri Compromise

The Missouri Compromise was an effort by the United States Congress to address slavery and create balance between the slaveholding and free states.  Congress struggled with the issue for some time starting in 1819, when the Missouri Territory applied for statehood.  The Missouri Territory had been part of the Louisiana Purchase in 1803.  The Spanish and French sanctioned slavery in the Louisiana territories prior to the sale, and Louisiana, the first state carved from the Louisiana Purchase, was a slave state when it entered the Union.  If it were admitted, Missouri would throw off the eleven to eleven balance between slaveholder and free states.  On February 3, 1819, New York Jeffersonian Republican Representative James Tallmadge, Jr. proposed two amendments to Missouri’s application for statehood, providing:

“And provided, That the further introduction of slavery or involuntary servitude be prohibited, except for the punishment of crimes, whereof the party shall have been fully convicted; and that all children born with in the said State, after the admission thereof into the Union, shall be free at the age of twenty-five years.”

The Tallmadge Amendment passed the House but failed in the Senate.  The debates in the two chambers of Congress pitted the northern restrictionists against anti-restrictionists from the south.  To further the Tallmadge Amendment in the House, a fellow House member, proposed splitting Tallmadge’s amendments into two separate votes and, despite a 101 to 81 northern advantage in the House, the House voted 87-76 in favor of the further migration into Missouri and 82 to 78 on emancipation at age twenty-five.   But the three days of debate prior to passage have been described as “rancorous” and “fiery” and “blistering,” with rhetoric such as “which seas of blood can only extinguish” and “If a dissolution of the Union must take place, let it be so!”  When the House passed bill made it to the Senate, the Senate rejected both parts, 22-16 and 31-7, respectively.

The Congressional debate on admitting Missouri continued for a year, until Maine (which was part of Massachusetts) sought statehood.  The agreed upon deal was to admit Maine as a free state and Missouri as a slave state- states would be admitted in pairs to keep the balance.  The Senate linked the two bills for Missouri and Maine and Senator Jesse B. Thomas from Illinois introduced a compromise amendment, which excluded slavery from remaining lands of the Louisiana Purchase north of the 36◦, 30’ parallel.

The measure passed the Senate but faced resistance in the House by Northerners who wanted Missouri to be a free state.  Speaker of the House Henry Clay, the “Great Compromiser,” divided the Senate bills and on March 3, 1820, the House voted to admit Maine as a free state, Missouri as a slave state, and made free soil western territories north of Missouri’s southern border, excluding Missouri.  The debate did not end in 1820, however.

When Missouri submitted its new constitution, it excluded “free negroes and mulattoes” from the state.  Clay again saved the matter, approving an act of admission that the exclusionary clause would “never be construed to authorize the passage of any law” that impaired the privileges and immunities of any United States citizen.  Referred to as the Second Missouri Compromise, it helped save the Union for several decades.

Conclusion

The Missouri Compromise was a necessary action to avert continued battles over the balance of power in Congress.  However, Thomas Jefferson predicted the peace gained by the Missouri Compromise could not last, writing to a friend:

“[B]ut this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the Union. it is hushed indeed for the moment. but this is a reprieve only, not a final sentence. A geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated; and every new irritation will mark it deeper and deeper.”

The Missouri Compromise helped to issue a “reprieve” as Jefferson noted, and for the next three decades, the issue continued to be debated, but the balance of power remained, until the admission of California as a state in 1850 with no offsetting slaveholding state admitted at the same time.  Effectively overruled by the Kansas-Nebraska Act in 1854, the Missouri Compromise was also found to be unconstitutional by the much-denounced 1857 Supreme Court decision, Dred Scott v. Sandford, which held that Congress had overreached in its enactment of the Missouri Compromise.  Civil war would come four years after Dred.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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Articles of Confederation – Congress Wielded All Three Powers: Legislative, Judicial, Executive, Later Separated

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Guest Essayist: Daniel A. Cotter
Articles of Confederation, George Washington, 1787

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On November 15, 1777, the Continental Congress approved what was this newly declared independent nation’s first constitution, the Articles of Confederation.  The Articles included a single governing body, the Continental Congress.   Requiring unanimous ratification by all thirteen of the British colonies, it took until March 1, 1781, when Maryland ratified the Articles, for them to become effective.  The Articles governed until 1789, when the United States Constitution replaced the Articles.

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Lawrence v. Texas (2003), United States v. Windsor (2013) And Obergefell v. Hodges (2015)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter  

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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)

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Guest Essayist: Daniel A. Cotter

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

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Guest Essayist: Daniel A. Cotter

 

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

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Guest Essayist: Daniel A. Cotter

 

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”

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Guest Essayist: Daniel A. Cotter

 

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

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Guest Essayist: Daniel A. Cotter

 

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

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Guest Essayist: Daniel A. Cotter

 

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

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Guest Essayist: Daniel A. Cotter

 

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

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Guest Essayist: Daniel A. Cotter

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

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Guest Essayist: Daniel A. Cotter

 

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

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Guest Essayist: Daniel A. Cotter

 

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

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Guest Essayist: Daniel A. Cotter

 

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

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Guest Essayist: Daniel A. Cotter

 

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

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Guest Essayist: Daniel A. Cotter

 

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

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Guest Essayist: Daniel A. Cotter

 

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

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Guest Essayist: Daniel A. Cotter

 

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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