Guest Essayist: James C. Clinger

An admirer of inventors Bell, Edison, and Einstein’s theories, scientist and inventor Philo T. Farnsworth designed the first electric television based on an idea he sketched in a high school chemistry class. He studied and learned some success was gained with transmitting and projecting images. While plowing fields, Farnsworth realized television could become a system of horizontal lines, breaking up images, but forming an electronic picture of solid images. Despite attempts by competitors to impede Farnsworth’s original inventions, in 1928, Farnsworth presented his idea for a television to reporters in Hollywood, launching him into more successful efforts that would revolutionize moving pictures.

On September 3, 1928, Philo Farnsworth, a twenty-two year old inventor with virtually no formal credentials as a scientist, demonstrated his wholly electronic television system to reporters in California. A few years later, a much improved television system was demonstrated to larger crowds of onlookers at the Franklin Institute in Philadelphia, proving to the world that this new medium could broadcast news, entertainment, and educational content across the nation.

Farnsworth had come far from his boyhood roots in northern Utah and southern Idaho. He was born in a log cabin lacking indoor plumbing or electrical power. His family moved to a farm outside of Rigby, Idaho, when Farnsworth was a young boy. For the first time, Farnsworth could examine electrical appliances and electric generators in action. He quickly learned to take electrical gadgets apart and put them back together again, often making adaptations to improve their function. He also watched each time the family’s generator was repaired. Soon, still a  young boy, he could do those repairs himself. Farnsworth was a voracious reader of science books and magazines, but also devoured what is now termed science fiction, although that term was not in use during his youth. He became a skilled violinist, possibly because of the example of his idol, Albert Einstein, who also played the instrument.[1]

Farnsworth excelled in his classes in school, particularly in mathematics and other sciences, but he did present his teachers and school administrators with a bit of a problem when he repeatedly appealed to take classes intended for much older students. According to school rules, only high school juniors and seniors were supposed to enroll in the advanced classes, but Farnsworth determined to find courses that would challenge him intellectually. The school resisted his entreaties, but one chemistry teacher, Justin Tolman, agreed to tutor Philo and give him extra assignments both before and after school.

One day, Farnsworth presented a visual demonstration of an idea that he had for transmitting visual images across space. He later claimed that he had come up with the basic idea for this process one year earlier, when he was only fourteen. As he was plowing a field on his family farm, Philo had seen a series of straight rows of plowed ground. Farnsworth thought it might be possible to represent visual images by breaking up the entire image into a sequence of lines of various shades of light and dark images. The images could be projected electronically and re-assembled as pictures made up of a collection of lines, placed one on top of another. Farnsworth  believed that this could be accomplished based on his understanding of Einstein’s path-breaking work on the “photoelectric effect” which had discovered that a particle of light, called a photon, that hit a metal plate would displace electrons with some residual energy transferred to a free-roaming negative charge, called a photoelectron.[2] Farnsworth had developed a conceptual model of a device that he called an “image dissector” that could break the images apart and transmit them for reassembly at a receiver. He had no means of creating this device with the resources he had at hand, but he did develop a model representation of the device, along with mathematical equations to convey the causal mechanisms. He presented all of this on the blackboard of a classroom in the high school in Rigby.   Tolman was stunned by the intellectual prowess of the fifteen year old standing in front of him. He thought Farnsworth’s model might actually work, and he copied down some of the drawings from the blackboard onto a piece of paper, which he kept for years.[3] It is fortunate for Farnsworth that Tolman held on to those pieces of paper.

Farnsworth was accepted into the United States Naval Academy but very soon was granted an honorable discharge under a provision permitting new midshipman to leave the university and the service to care for their families after the death of a parent. Farnsworth’s father had died the previous year, and Farnsworth returned to Utah, where his family had relocated after the sale of the farm. Farnsworth enrolled at Brigham Young University but worked at various jobs to support himself, his mother, and his younger siblings. As he had in high school, Farnsworth asked to be allowed to register in advanced classes rather than take only freshman level course work. He quickly earned a technical certificate but no baccalaureate degree. While in Utah, Farnsworth met, courted and eventually married his wife, “Pem,” who would later help in his lab creating and building instruments. One of her brothers would also provide lab assistance. One of Farnsworth’s job during his time in Utah was with the local Community Chest. There he met George Everson and Leslie Gorrell, who were regional Community Chest administrators who were experienced in money-raising. Farnsworth explained his idea to them about electronic television, which he had never before done to anyone except his father, now deceased, and his high school teacher, Justin Tolman. Everson and Gorrell were impressed with Farnsworth’s idea, although they barely understood most of the science behind it. Everson and Gorrell invited Farnsworth to travel with them to California to discuss his research with scientists from the California Institute of Technology (a.k.a., Cal Tech). Farnsworth agree to do so, and made the trek to Los Angeles to meet first with scientists and then with bankers to solicit funds to support his research.     When discussing his proposed electronic television model, Farnsworth became transformed from a shy, socially awkward, somewhat tongue-tied young man to a confident and articulate advocate of his project. He was able to explain the broad outline of his research program in terms that lay people could understand. He convinced Gorrell and Everson to put up some money and a few years later got several thousand more dollars from a California bank.[4]

Philo and Pem Farnsworth re-located first to Los Angeles and then to San Francisco to establish a laboratory. Farnsworth believed that his work would progress more quickly if he were close to a number of other working scientists and technical experts at Cal Tech and other universities. Farnsworth also wanted to be near to those in the motion picture industry who had technical expertise. With a little start-up capital, Farnsworth and a few other backers incorporated their business, although Farnsworth did not create a publicly traded corporation until several years later. At the age of twenty-one, in 1927, Farnsworth filed the first two of his many patent applications. Those two patents were approved by the patent office in 1930. By the end of his life he had three hundred patents, most of which dealt with television or radio components. As of 1938, three-fourths of all patents dealing with television were by Farnsworth.[5]

When Farnsworth began his work in California, he and his wife and brother-in-law had to create many of the basic components for his television system. There was very little that they could simply buy off-the-shelf at any sort of store that they could simply assemble into the device Farnsworth had in mind. So much of their time was devoted to soldering wires and creating vacuum tubes, as well as testing materials to determine which performed best. After a while, Farnsworth hired some assistants, many of them graduate students at Cal Tech or Stanford. One of his assistants, Russell Varian, would later make a name for himself as a physicist in his own right and would become one of the founders of Silicon Valley. Farnsworth’s lab also had many visitors, including Hollywood celebrities such as Douglas Fairbanks and Mary Pickford, as well as a number of scientists and engineers. One visitor was Vladimir Zworykin, a Russian émigré with a PhD in electrical engineering who worked for Westinghouse Corporation. Farnsworth showed Zworykin not only his lab but also examples of most of his key innovations, including his image dissector. Zworykin expressed admiration for the devices that he observed, and said that he wished that he had invented the dissector. What Farnsworth did not know was that a few weeks earlier, Zworykin had been hired away from Westinghouse by David Sarnoff, then the managing director and later the president of the Radio Corporation of America (a.k.a., RCA). Sarnoff grilled Zworykin about what he had learned from his trip to Farnsworth’s lab and immediately set him to work on television research. RCA was already a leading manufacturer of radio sets and would soon become the creator of the National Broadcasting Corporation (a.k.a., NBC). After government antitrust regulators forced RCA to divest itself of some of its broadcasting assets, RCA created the American Broadcasting Corporation (a.k.a., ABC) as a separate company[6]. RCA and Farnsworth would remain competitors and antagonists for the rest of Farnsworth’s career.

In 1931, Philco, a major radio manufacturer and electronics corporation entered into a deal with Farnsworth to support his research. The company was not buying out Farnsworth’s company, but was purchasing non-exclusive licenses for Farnsworth’s patents. Farnsworth then moved with his family and some of his research staff to Philadelphia.   Ironically, RCA’s television lab was located in Camden, New Jersey, just a few miles away. On many occasions, Farnsworth and RCA could receive the experimental television broadcasts transmitted from their rival’s lab. Farnsworth and his team were working at a feverish pace to improve their inventions to make them commercially feasible. The Federal Radio Commission, later known as the Federal Communications Commission, classified television as a merely experimental communications technology, rather than one that was commercially viable and subject to license. The commission wished to create standards for picture resolution and frequency bandwidth. Many radio stations objected to television licensing because they believed that television signals would crowd out the bandwidth available for their broadcasts.   Farnsworth developed the capacity to transmit television signals over a more narrow bandwidth than any competing televisions’ transmissions.

Personal tragedy struck the Farnsworth family in 1932 when Philo and Pem’s young son, Kenny, still a toddler, died of a throat infection, an ailment that today could easily have been treated with antibiotics. The Farnsworths decided to have the child buried back in Utah, but Philco refused to allow Philo time off to go west to bury his son. Pem made the trip alone, causing a rift between the couple that would take months to heal. Farnsworth was struggling to perfect his inventions, while at the same time RCA devoted an entire team to television research and engaged in a public relations campaign to convince industry leaders and the public that it had the only viable television system. At this time, Farnsworth’s health was declining. He was diagnosed with ulcers and he began to drink heavily, even though Prohibition had not yet been repealed. He finally decided to sever his relationship with Philco and set up his own lab in suburban Philadelphia. He soon also took the dramatic step of filing a patent infringement complaint against RCA in 1934.[7]

Farnsworth and his friend and patent attorney, Donald Lippincott, presented their argument before the patent examination board that Farnsworth was the original inventor of what was now known as electronic television and that Sarnoff and RCA had infringed on patents approved in 1930. Zworykin had some important patents prior to that time but had not patented the essential inventions necessary to create an electronic television system. RCA went on the offensive by claiming that it was absurd to claim that a young man in his early twenties with no more than one year of college could create something that well-educated scientists had failed to invent. Lippincott responded with evidence of the Zworykin visit to the Farnsworth lab in San Francisco. After leaving Farnsworth, Zworykin had returned first to the labs at Westinghouse and had duplicates of Farnsworth’s tubes constructed on the spot. Then researchers were sent to Washington to make copies of Farnsworth’s patent applications and exhibits. Lippincott also was able to produce Justin Lippincott, Philo’s old and then retired teacher, who appeared before the examination board to testify that the basic idea of the patent had been developed when Farnsworth was a teenager. When queried, Tolman removed a yellowed piece of notebook paper with a diagram that he had copied off the blackboard in 1922. Although the document was undated, the written document, in addition to Tolman’s oral testimony, may have convinced the board that Farnsworth’s eventual patent was for a novel invention.[8]

The examining board took several months to render a decision. In July of 1935, the examiner of interferences from the U.S. Patent Office mailed a forty-eight page document to the parties involved. After acknowledging the significance of inventions by Zworykin, the patent office declared that those inventions were not equivalent to what was understood to be electronic television. Farnsworth’s claims had priority.   The decision was appealed in 1936, but the result remained unchanged.  Beginning in 1939, RCA began paying royalties to Farnsworth.

Farnsworth and his family, friends, and co-workers were ecstatic with the outcome when the patent infringement case was decided. For the first time, Farnsworth was receiving the credit and the promise of the money that he thought he was due. However, the price he had paid already was very high. Farnsworth’s physical and emotional health was declining. He was perpetually nervous and exhausted. As unbelievable as it may sound today, one doctor advised him to take up smoking to calm his nerves. He continued to drink heavily and his weight dropped.      His company was re-organized as the Farnsworth Television & Radio Corporation and had its initial public offering of stock in 1939.    Whether out of necessity or personal choice, Farnsworth’s work in running his lab and his company diminished.

While vacationing in northern, rural Maine in 1938, the Farnsworth family came across a plot of land that reminded Philo of his home and farm outside of Rigby. Farnsworth bought the property, re-built an old house, constructed a dam for a small creek, and erected a building that could house a small laboratory. He spent most of the next few years on the property. Even though RCA had lost several patent infringement cases against Farnsworth, the company was still engaging in public demonstrations of television broadcasts in which it claimed that David Sarnoff was the founder of television and that Vladimir Zworykin was the sole inventor of television. The most significant of these demonstrations was at the World’s Fair at Flushing Meadows, New York. Many reporters accepted the propaganda that was distributed at that event and wrote up glowing stories of the supposedly new invention. Only a few years before, Farnsworth had demonstrated his inventions at the Franklin Institute, but the World’s Fair was a much bigger venue with a wider media audience. In 1949, NBC launched a special televised broadcast celebrating the 25th anniversary of the creation of television by RCA, Sarnoff, and Zworykin. No mention was made of Farnsworth at all.[9]

The FCC approved television as a commercial broadcast enterprise, subject to licensure, in 1939. The commission also set standards for broadcast frequency and picture quality. However, the timing to start off a major commercial venture for the sale of a discretionary consumer product was far from ideal. In fact, the timing of Farnsworth’s milestone accomplishments left much to be desired. His first patents were approved shortly after the nation entered the Great Depression. His inventions created an industry that was already subject to stringent government regulation focused on a related but potentially rival technology: radio. Once television was ready for mass marketing, the nation was poised to enter World War II. During the war, production of televisions and many other consumer products ceased and resources were devoted to war-related materiel. Farnsworth’s company and RCA both produced radar and other electronics equipment. Farnsworth’s company also produced wooden ammunition boxes. Farnsworth allowed the military to enjoy free use of his patents for radar tubes.[10]

Farnsworth enjoyed royalties from his patent for the rest of his life.   However, his two most important patents were his earliest inventions.  The patents were approved in 1930 for a duration of seventeen years. In 1947, the patents became part of the public domain. It was really only in the late 1940s and 1950s that television exploded as a popular consumer good, but by that time Farnsworth could receive no royalties for his initial inventions. Other, less fundamental components that he had patented did provide him with some royalty income. Before the war, Farnsworth’s company had purchased the Capehart Company of Fort Wayne, Indiana, and eventually closed down their Philadelphia area facility and moved their operations entirely to Indiana. A devastating wildfire swept through the countryside in rural Maine, burning down the buildings on Farnsworth’s property, only days before his property insurance policy was activated. Farnsworth’s company fell upon hard times, as well, and eventually was sold to International Telephone and Telegraph. Farnsworth’s health never completely recovered, and he took a disability retirement pension at the age of sixty and returned to Utah.   In his last few years, Farnsworth devoted little time to television research, but did develop devices related to cold fusion, which he hoped to use to produce abundant electrical power for the whole world to enjoy. As of now, cold fusion has not been a viable electric power generator, but it has proved useful in neutron production and medical isotopes.

Farnsworth died in 1971 at the age of sixty-four. At the time of his death, he was not well-known outside of scientific circles. His hopes and dreams of television as a cultural and educational beacon to the whole world had not been realized, but he did find some value in at least some of what he could see on the screen. About two years before he died, Philo and Pem along with millions of other people around the world saw Neil Armstrong set foot on the moon. At that moment, Philo turned to his wife and said that he believed that all of his work was worthwhile.

Farnsworth’s accomplishments demonstrated that a more or less single inventor, with the help of a few friends, family members, and paid staff, could create significant and useful inventions that made a mark on the world.[11] In the long run, corporate product development by rivals such as RCA surpassed what he could do to make his brainchild marketable.   Farnsworth had neither the means nor the inclination to compete with major corporations in all respects. But he did wish to have at least some recognition and some financial reward for his efforts. Unfortunately, circumstances often wiped out what gains he received. Farnsworth also demonstrated that individuals lacking paper credentials can also accomplish significant achievements. With relatively little schooling and precious little experience, Farnsworth developed devices that older and more well-educated competitors could not. Sadly, Farnsworth’s experiences display the role of seemingly chance events in curbing personal success. Had he developed his inventions a bit earlier or later, avoiding most of the Depression and the Second World War, he might have gained much greater fame and fortune. None of us, of course, choose the time into which we are born.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

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[1]  Schwartz, Evan I. 2002. The Last Lone Inventor: A Tale of Genius, Deceit, and the Birth of Television. New York: HarperCollins.

[2] https://www.scientificamerican.com/article/einstein-s-legacy-the-photoelectric-effect/

[3] Schwartz, op cit.

[4] Schwartz, op cit.

[5] Jewkes, J. “Monopoly and Economic Progress.” Economica, New Series, 20, no. 79 (1953): 197-214

[6] Schwartz, op cit.

[7] Schwartz, op cit.

[8] Schwartz, op cit.

[9] Schwartz, op cit.

[10]Schwartz, op cit.

[11]Lemley, Mark A. 2012. “The Myth of the Sole Inventor.” Michigan Law Review 110 (5): 709–60.

 

Guest Essayist: James C. Clinger

An attorney representing Alexander Graham Bell and his business partner, Gardiner Hubbard, filed a patent application for an invention entitled an “Improvement in Telegraphy” on February 14, 1876. That same day, Elisha Gray, a prominent inventor from Highland Park, Illinois, had applied for a patent caveat for a similar invention from the same office. On March 7, Bell’s patent was approved by the patent office and the battle over the rights to the invention that we now know as the telephone began. The eventual outcome would shape the development of a major industry and the opportunities for communication and social interaction for the entire country.

The invention came from an unlikely source. Alexander Graham Bell was a Scottish-born teacher of elocution and tutor to the deaf whose family had migrated to Ontario, Canada, after the death of two of Bell’s siblings. Alexander Melville Bell, Alexander Graham Bell’s father, believed that their new home in Ontario offered them a better, more healthful climate. The elder Bell was a student of phonetics who had developed a system of “Visible Speech” to allow deaf people the chance to speak intelligibly. Melville Bell lectured periodically at the Lowell Institute in Boston, Massachusetts, and his son Alexander moved to Boston permanently to assume a teaching position at the Boston University.[1]

Though trained in acoustics and the science behind the sounds of the human voice, Bell did not have a strong understanding of electrical currents or electromagnetism. But early on he realized that the magnetic field of an electrical current was capable of vibrating objects, such as a tuning fork, which could create audible sounds. As he was learning of how electrical currents could be used for sound production, other researchers such as Joseph Stearns and Thomas Edison were developing a system of telegraph transmission in which multiple signals could be sent over the same wire at the same time. These systems relied upon sending the series of dots and dashes at different frequencies. Bell joined that research to find a better “multiplex” telegraph. In order to develop what Bell called a “harmonic telegraph,” Bell needed more funds for his lab. Much of his funding came from a notable Boston attorney, Gardiner Hubbard, who hired Bell as a teacher of his daughter, Mabel, who had become deaf after a bout with scarlet fever. Hubbard, who had a dislike for Western Union’s dominance in long-distance telegraph service, encouraged and subsidized Bell’s research on telegraphy. Hubbard and another financial backer, Thomas Sanders, formed a partnership with Bell, with an agreement that all three hold joint ownership of the patent rights for Bell’s inventions. Bell made significant progress on his research, and had more success in his private life. Mabel Hubbard, who was his student, became his betrothed. Despite the initial objections of her father, Mabel married Bell shortly after her eighteenth birthday.[2]

Other inventers were hard at work on similar lines of research. Daniel Drawbaugh, Antonio Meucci, Johann Philipp Reis, and especially Elisha Gray all were developing alternative versions of what would soon be known as the telephone while Bell was hard at work on his project.  Most of these models involved a variable resistance method of modifying the electrical current by dipping wires into a container of liquid, often mercury or sulfuric acid, to alter the current flowing to a set of reeds or diaphragm that would emit various sounds. Most of these researchers knew more about electrical currents and devices than Bell did. But Bell had a solid understanding of the human voice. Even though his research began as an effort to improve telegraphy, Bell realized that the devices that he created could be designed to replicate speech. His patent application in February of 1876 was for a telephone transmitter that employed a magnetized reed attached to a membrane diaphragm when activated by an undulating current. The device described in the patent application could transmit sounds but not actual speech. Months later, however, Bell’s instrument was improved sufficiently to allow him to convey a brief, audible message to his assistant, Thomas A. Watson, who was in another part of his laboratory. In the summer of 1876, Bell demonstrated the transmission of audible speech to an amazed crowd at the Centennial Exhibition in Philadelphia. Elisha Gray attempted to demonstrate his version of the telephone at the same exhibition, but was unable to convey the sound of human voices. The following year, Bell filed and received a patent for his telephone receiver, assuring his claim to devices that would both transmit and receive voice communications.[3]

In 1877, Bell and his partners formed the American Bell Telephone Company, a corporation that would later be known as American Telephone and Telegraph (AT&T). The corporation and Bell personally were soon involved in a number of lawsuits alleging patent infringement and, in one case, patent cancellation. There were many litigants over the years, but the primary early adversary was Western Union, which had purchased the rights to Elisha Gray’s telephone patent. The United States federal government also was involved in a suit for patent cancellation, alleging that Bell gained his patents fraudulently by stealing the inventions of others. The lawsuit with Western Union was settled in 1879 when the corporation forfeited claims on the invention of the telephone in return for twenty percent of Bell’s company’s earnings for the duration of the patent.[4] The other lawsuits meandered through multiple courts over several years until several were consolidated before the United States Supreme Court. Ultimately, a divided court ruled in favor of Bell’s position in each case. The various opinions and appendices were so voluminous that when compiled they made up the entire volume of United States Reports, the official publication of Supreme Court opinions.[5]

The court decisions ultimately granted vast scope to the Bell patent and assigned an enormously profitable asset to Bell’s corporation. The firm that became AT&T grew into one of the largest corporations in the world.[6] Years earlier, the telegraph had transformed communication, with huge impacts on the operation of industry and government. But although the telegraph had enormous impact upon the lives of ordinary Americans, it was not widely used by private individuals for their personal communications. Almost all messages were sent by businesses and government agencies. Initially, this was the common practice for telephone usage. But with the dawn of the twentieth century, telephones became widely used by private individuals. More phones were available in homes rather than just in offices. Unlike telegrams, which were charged by the word, telephone service for local calls were priced with a flat monthly rate. As a result, telephone service was enjoyed as a means of communication for social purposes, not just commercial activities.    Within a hundred years of Bell’s initial patent, telephones could be found in almost every American home.[7]

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

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[1] Billington, David P. “Bell and the Telephone.” In Power, Speed, and Form: Engineers and the Making of the Twentieth Century, 35-56. Princeton; Oxford: Princeton University Press, 2006.

[2] Billington, op cit.

[3] Stone, Alan. “Protection of the Newborn.” In Public Service Liberalism: Telecommunications and Transitions in Public Policy, 51-83. Princeton, NJ: Princeton University Press, 1991.

[4] MacDougall, Robert. “Unnatural Monopoly.” In The People’s Network: The Political Economy of the Telephone in the Gilded Age, 92-131. University of Pennsylvania Press, 2014.

[5] The Telephone Cases.  126 US 1.

[6] Beauchamp, Christopher. “Who Invented the Telephone? Lawyers, Patents, and the Judgments of History.” Technology and Culture 51, no. 4 (2010): 854-78.

[7] MacDougall, Robert. “Visions of Telephony.” In The People’s Network: The Political Economy of the Telephone in the Gilded Age, 61-91. University of Pennsylvania Press, 2014.

 

Guest Essayist: James C. Clinger

On September 5, 1867, the first Texas cattle were shipped from the railhead in Abilene, Kansas, with most of the livestock ending their destination in a slaughterhouse in Chicago, Illinois. These cattle made a long, none too pleasant journey from south Texas to central Kansas.   Their hardships were shared by cowboys and cattlemen who drove their herds hundreds of miles to find a better market for their livestock. For almost two decades, cattle drives from Texas were undertaken by beef producers who found that the northern markets were much more lucrative than those they had been dealing with back home. These drives ended after a combination of economic, legal, and technological changes made the long drives impractical or infeasible.

After the end of the civil war, much of the economy of the old Confederacy was in shambles. In Texas, the rebels returning home often found their livestock scattered and their ranches and farms unkempt and overgrown. Once the Texas ranchers reassembled their herds, they found that the local market for beef was very limited. The ranchers’ potential customers in the region had little money with which to buy beef and there was no way to transport livestock to distant markets except by ships that sailed off the Gulf coast. The major railroad lines did not reach Texas until the 1870s. Many of the cattlemen were “cattle rich but cash poor,” and it did not appear that there was any easy way to remedy their situation.[1]

Several cattlemen, cattle traders, and cattle buyers developed a solution.   Rather than sell locally, or attempt to transport cattle by water at high costs, cattle were to be driven along trails to railheads up north. Among the first of these was Abilene, Kansas, but other “cow towns,” such as Ellsworth and Dodge City, quickly grew from small villages to booming cities. This trek required very special men, horses, and cattle.   The men who drove the cattle were mostly young, adventurous, hardened cowhands who were willing to work for about $30 per month in making a trek of two months or more. Several Texas-bred horses were supplied for each cowhand to ride, for it was common for the exertions of each day to wear out several horses. The cattle themselves differed significantly from their bovine brethren in other parts of the continent.   These were Texas Longhorns, mostly steers, which were adorned with massive horns and a thick hide. The meat of the Longhorns was not considered choice by most connoisseurs, but these cattle could travel long distances, go without water for days, and resist many infectious diseases that would lay low cattle of other breeds.

Most cattle drives followed along the path of a number of trails from Texas through the Indian Territory (present day Oklahoma) into Kansas.   The most famous of the trails was the Chisholm Trail, named after Jesse Chisholm, a trader of cattle and other goods with outposts along the North Canadian River in northern Texas and along the Little Arkansas in southern Kansas. The drives ended in a variety of Kansas towns, notably Abilene, after some entrepreneurial cattle buyers, such as Joseph McCoy and his brothers, promoted the obscure train stop as a place where Texas cattle could be shipped by rail to market.[2] The cattle drives had emerged as an entrepreneurial solution to desperate circumstances where economic gains were blocked by geographic, technological, and legal obstacles.

The cow towns grew rapidly in size and prosperity, although many faltered after the cattle drives ended. The cattle and cowboys were not always welcomed. Many Kansas farmers and homesteaders believed that the Longhorns brought diseases such as “Texas Fever” that would infect and kill their own cattle. The disease known today as Babesiosis was caused by parasites carried by ticks that attached themselves to Texas steers. The Longhorn cattle had developed an immunity to the disease, but the northern cattle had not. The ticks on the hides of the Texas cattle often traveled to the hides of the livestock in Kansas, with lethal results.[3]   The Kansas farmers demanded and gained a number of state laws prohibiting the entry of Texas cattle. These laws were circumvented or simply weakly enforced until the 1880s. At first glance, these laws might appear to conflict with the commerce clause of the U.S. Constitution, Article I, Section 8, Clause 3, which authorized Congress, not the states, to regulate commerce among states. Yet, the federal Supreme Court ruled in 1886 in the case of Morgan’s Steamship Company v. Louisiana Board of Health that quarantine laws and general regulation of public health were permissible exercises of their police powers, although they could be preempted by an act of Congress.[4]

The cattle drives faced many hazards on their long treks to the north.   Harsh terrain, inclement weather, hostile Indians, rustlers, and unwelcoming Kansas farmers often made the journey difficult.   Nevertheless, for about twenty years the trail drives continued and were mostly profitable. Even after the railroads reached Fort Worth, Texas, many cattlemen still found it more profitable to make the long journey to Kansas to ship their beef. Cattle prices were higher in Abilene, and the costs of rail shipment from Fort Worth were, at least in the 1870s, too high to justify ending the trips to Kansas.[5] Eventually the drives did end, although there is some dispute among historians about when and why the cattle drives ceased. By the 1880s, barbed wire fencing blocked the cattle trails at some points. The new railheads in Texas offered alternative routes to livestock markets. Finally, Kansas enacted a strict quarantine law to keep out Texas cattle in 1885. Of course, past quarantine laws had been weakly enforced. State officials seemed to take the 1885 law more seriously. Perhaps economic incentives encouraged stricter quarantine enforcement. The cattle herds of the northern plains had been growing gradually over the years. After the Battle of Little Bighorn in 1876, the United States Army largely pacified hostile tribes in the Rocky Mountain states, with the result that the cattle industry thrived in Wyoming and Montana. With bigger and more carefully bred livestock available to the Kansas cattle buyers, the need to buy Texas cattle diminished. Enforcing the quarantine laws became less costly to the cattle traders and certainly pleased many of the Kansas farmers who voted in state elections. The end came relatively abruptly. In 1885, approximately 350,000 cattle were driven from Texas to Kansas. The following year, in 1886, there were no drives at all.[6] The cattle drives had emerged in the 1860s as an entrepreneurial solution to desperate circumstances where economic gains were blocked by geographic, technological, and legal obstacles. In the 1880s, the marketplace had been transformed. New barriers to the cattle drive had appeared, but by then the cattlemen in Texas had safer and more cost-effective  means to bring their livestock to market.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

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[1] Specht, Joshua. “Market.” In Red Meat Republic: A Hoof-to-Table History of How Beef Changed America, 119-73. Princeton, NJ: Princeton University Press, 2019.

[2] Gard, Wayne. “Retracing the Chisholm Trail.” The Southwestern Historical Quarterly 60, no. 1 (1956): 53-68.

[3] Hutson, Cecil Kirk. “Texas Fever in Kansas, 1866-1930.” Agricultural History 68, no. 1 (1994): 74-104.

[4] 118 U.S. 455

[5] Galenson, David. “The Profitability of the Long Drive.” Agricultural History 51, no. 4 (1977): 737-58.

[6] Galenson, David. “The End of the Chisholm Trail.” The Journal of Economic History 34, no. 2 (1974): 350-64.

 

Guest Essayist: James C. Clinger

On July 2, 1862, President Abraham Lincoln signed into law the Land-Grant Agricultural and Mechanical College Act, widely known today as the Morrill Act. The act was the culmination of work over many years by many legislators, notably the legislation’s author and chief sponsor, Justin Morrill of Vermont, who was one of the long-serving members of Congress during the 19th century. Congress had passed an earlier version of Morrill’s bill in 1857, but the bill was vetoed by President James Buchanan. An earlier bill sponsored by Henry Clay that would have used federal land revenues to support education and internal improvement was also vetoed by President Andrew Jackson. In each veto case, an argument was made that the federal government had no business involving itself in educational matters or other issues that were properly the province of state governments.[1]

The Morrill Act permitted participating states to make use of the sale, rent, and/or royalties derived from property granted to the states by the federal government. If a state did not have sufficient federal land situated within its borders, the state would be granted scrip representing proceeds from federal land in other states or territories. Somewhat similar land grants had been used by the federal government for a variety of purposes, but many of those programs did not attract a great deal of interest or cooperation from state governments. The Morrill Act required participating governments to produce annual reports regarding the use of funds from both the state governors and the recipient colleges and universities.[2]

Morrill pushed for a land grant program that would support education, a cause to which he was devoted for much of his career. Morrill had relatively little formal education himself, but he was dedicated to the effort to provide higher education to people of humble station. He also favored a very particular kind of higher education, one supporting agriculture and the “mechanic arts” (today generally known as engineering).[3] At the time, many colleges and universities in America and Europe largely emphasized the classics and humanities to the exclusion of more applied fields of study. Studies focusing on seemingly more practical and career-related topics were given little attention. The successful 1862 legislation, unlike the 1857 bill, also indicated that the funding would support the teaching of “military tactics.” In light of the on-going civil war, the emphasis on military training broadened the bill’s appeal.[4] The bill gained a co-sponsor in the Senate in the person of Ben Wade of Ohio, who later would serve as president pro tempore of the chamber. Wade is remembered today as the man who would have become acting president if the senate had voted to remove President Andrew Johnson in his impeachment trial in 1868.

Opponents of the legislation included those who believed that education matters were solely the responsibility of the states. But many who took this position in 1857 were no longer in Congress in the 1860s. In fact, many were southerners who left Congress when their states seceded from the union. Other legislators, particularly from the western states, objected to the fact that land situated in their states sometimes was used to provide revenue to states in the east that lacked substantial amounts of federal land. Some objected to the legislation because they feared that the new funding would support new institutions that would compete with existing colleges and universities. As various iterations of the Morrill bill moved through Congress between 1860 and 1862, various amendments were approved to appease the objections of some critics.   Notably, the bill was amended to exclude mineral lands and to limit the amount of federal land that could be sold within any given state. Final passage was also delayed so that settlers granted federal land under the recently enacted Homestead Act could have their first choice of land.[5]

After enactment, many states used the land grant funds to support existing colleges and universities, both public and private. While the land grant system overwhelmingly has favored public institutions, a few private schools, such as the Massachusetts Institute of Technology (MIT), Cornell University, and Brown University, received land grant money for some considerable time, and some continue to operate as land-grant institutions to this day.[6] In most states, however, entirely new institutions were created, generally with some reference to agriculture in their titles. These institutions became what are now known as land-grant colleges, even though the total number of schools that receive land-grant support is far greater than most people realize.

The impact of the Morrill Act is hard to overestimate. It was not the first federal grant programs offering aid to state governments, but it was one of the most important and enduring programs. In comparison to categorical aid programs that became popular in the 1960s and later, the program attached few strings with which the recipient governments had to comply. However, in comparison to its predecessors, the land-grant act imposed significant requirements upon its benefactors, particularly regarding reporting obligations and the formal commitment of  resources to particular fields of study.

The act caused a great increase in the number of higher education institutions in the country, and greatly increased the accessibility of college for many Americans of limited income who often lived far removed from population centers or the locations of extant colleges and universities. The Morrill Act was amended in 1890 by new legislation that prohibited grants to states that excluded students from higher education on the basis of race. Recipient states were also required to create universities intended to serve African-Americans. Today these schools are generally called Historically Black Colleges and Universities (HBCUs).[7]

The land-grant program had a huge impact in agriculture, engineering, and military science. The land-grant institutions conducted agriculture research and trained agricultural students. These institutions became a part of the Department of Agriculture’s extension service, which has disseminated research findings throughout the country.[8] By the early twentieth century, the military tactics classes that were supported by the land-grants had evolved into the Reserve Officer Training Corps (ROTC) program.[9] The “mechanic arts” emphasis in the land-grant colleges built up the knowledge base and the professional identity of the engineering profession.[10] The economic implications of this support for both basic and applied science have been significant, although their exact magnitude is disputed. Research by Isaac Ehrlich, Adam Cook, and Yong Yin indicates that the returns from the land-grant schools had made the United States into an economic superpower by the early twentieth century, surpassing countries such as the United Kingdom that followed a much different higher education model.[11] In short, the Morrill Act and subsequent legislation regarding the land-grant colleges has had an astounding impact upon educational quality and access, economic growth and opportunity, and leadership in the nation’s military.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

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[1] Duemer, Lee S. 2007. “The Agricultural Education Origins of the Morrill Land Grant Act of 1862.” American Educational History Journal 34 (1): 135–46.

[2] Lieberman, Carl. “The Constitutional and Political Bases of Federal Aid to Higher Education, 1787-1862.” International Social Science Review 63, no. 1 (1988): 3-13.

[3] Key, Scott. 1996. “Economics or Education: The Establishment of American Land-Grant Universities.” Journal of Higher Education 67 (March): 196–220.

[4] Benson, Michael T., and Hal Robert Boyd. 2018.  College for the Commonwealth: A Case for Higher Education in American Democracy.  Lexington: University Press of Kentucky.

[5] Lieberman, Carl. “The Constitutional and Political Bases of Federal Aid to Higher Education, 1787-1862.” International Social Science Review 63, no. 1 (1988): 3-13.

[6] Carstensen, Victor. 1962. “Century of the Land-Grant Colleges.” Journal of Higher Education 33 (January): 30–37.

[7] Wheatle, Katherine I. E. 2019. “Neither Just nor Equitable.” American Educational History Journal 46 (1/2/2019): 1–20.

[8] Duemer, Lee S. 2007. “The Agricultural Education Origins of the Morrill Land Grant Act of 1862.” American Educational History Journal 34 (1): 135–46.

[9] Benson, Michael T., and Hal Robert Boyd. 2018.  College for the Commonwealth: A Case for Higher Education in American Democracy.  Lexington: University Press of Kentucky.

[10]Nienkamp, Paul. 2010. “Land-Grant Colleges and American Engineers.” American Educational History Journal 37 (1/2): 313–30.

[11] Ehrlich, Isaac, Adam Cook, and Yong Yin. 2018. “What Accounts for the US Ascendancy to Economic Superpower by the Early Twentieth Century? The Morrill Act-Human Capital Hypothesis.” Journal of Human Capital 12 (2): 233–81.

Guest Essayist: James C. Clinger

On May 24, 1844, Samuel Finley Breese Morse demonstrated his electro-magnetic telegraph in the capitol building in Washington, DC, by transmitting a message sent to a railway station in Baltimore, Maryland, approximately thirty-eight miles away. The message transmitted over the telegraph line was “What has God wrought?” a biblical passage from Numbers 23:23. This demonstration convinced many in both government and industry of the viability and usefulness of the new technology.

Much had happened before that eventful day to bring that demonstration to fruition. Much would happen afterward that would make this demonstration momentous in American history. Morse was not a scientist by training. He had already made his mark, if not his fortune, as an artist who preferred to paint epic, historical scenes but who often resorted to completing commissioned portraits of prominent figures as a way of making money. He became acquainted with advances in electro-magnetic telegraphy in Europe while on a voyage to Europe after the death of his first wife. His discussions with European scientists gave him some background knowledge in the scientific issues that had to be confronted. His own creativity and his dogged willingness to learn from the work of others led him to develop a model telegraphic device that proved to be practical and profitable. Among those who had worked in this field before were William Fothergill Cooke and Charles Wheatstone, who patented an electro-magnetic telegraph in Britain.   Cooke and Wheatstone employed a variety of different circuits and electrical wires to transmit signals to a receiver. When a current was transmitted through different circuits, or different combinations of circuits, signals for different characters were recognized and a needle was turned to point to various letters of the alphabet. However, the Cooke-Wheatstone telegraph message was, in Morse’s words, “evanescent.” It left no permanent record.[1]

Morse developed a telegraph that operated on a single circuit with a single wire situated between the transmitter and receiver. The transmitter employed a lever that would connect and disconnect an electrical current that would start and then stop a magnetic attraction within a mechanism at the receiver. The magnetic attraction would cause the arm of the device to mark a paper tape with dots and dashes, representing the length of time that the circuit was engaged. The innovation achieving the marking of paper may have been the creation of Morse’s assistant, Alfred Vail. What is not in doubt is that Morse created the code that translated combinations of dots and dashes into letters of the alphabet and numerals. The code was essentially a form of binary language that is now in use in computer systems today, except that now the dots and dashes have been replaced by a series of ones and zeroes.[2]

Morse also had to tackle the difficulty of transmitting signals over great distances. The signal strength declined the farther along the line that the message traveled. Morse relied upon the assistance of the famous physicist, Dr. Joseph Henry, later the first secretary of the Smithsonian Institution. Henry showed Morse how a series of relays situated miles apart from each other could renew the signal strength for an indefinite distance. Morse acknowledged the contribution of Henry in private correspondence before perfecting his invention, but downplayed Henry’s role later during challenges to his patent.[3]

Morse demonstrated his invention in many venues, but had not demonstrated its ability to work over a long distance. Morse approached Congress to gain an appropriation of $30,000 to develop the telegraphic device but also to construct a telegraph over a long distance to demonstrate its feasibility. When the appropriation bill was debated in the House of Representatives, some Congressmen ridiculed the proposal.   A tongue-in-cheek amendment to the bill, proposing an appropriation to send messages through “mesmerism,” was discussed and voted on in the chamber. Ultimately, the appropriation narrowly passed the House, and then passed unanimously in the Senate. The funding could not have come at a better time for Morse, who later estimated that just after the vote he had only thirty-seven-and-a half cents to his name. Morse originally attempted to build a long trench stretching from Baltimore to Washington, in which an insulated telegraph wire was placed.   Preliminary tests proved unsuccessful, so Morse quietly arranged to support the wires over a series of poles that would hold the lines above ground. Once completed, Morse was able to send the famous “What hath God wrought?” message from Washington, D.C. to Vail in Baltimore.  The on-looking Congressmen were amazed by the achievement, and were generous in their praise of Morse.[4]

Under Article I, Section 8, Clause 8 of the Constitution, Congress was empowered “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”   The exclusive right to the discoveries of a scientific nature takes the form of what is generally known as a patent. Morse had been denied a patent for his invention in the United States when he first applied in 1837, although he had received a “caveat” from the office that would give priority to his claim in front of other applicants seeking a patent for an identical device. He was able to patent his creation in the United States by 1840, but had been denied a patent in Britain in 1838.[5] That same year he received a French patent, which was one reason the U.S. Supreme Court eventually limited the duration of his American patent to fourteen years from the date of his original French patent, October 30, 1838.[6] The Supreme Court also limited the scope of his patent to the telegraph device that Morse had designed. He was not able to enjoy exclusive rights to “use of electro-magnetism, however developed, for marking or printing intelligible characters, signs, or letters at any distances,”  as Morse’s original patent claim held. If that overly broad had been accepted, Morse could plausibly claim patent rights covering modern day fax transmissions and email messages.[7]

Morse was able to sell territorial licenses to his patent which permitted companies to run telegraph services in certain geographic areas but not nationwide. For a time, the telegraphy business was quite decentralized and competitive, but by the late 1860s, one company, Western Union, had achieved a dominant position in the industry. The new invention had major impacts on industrial development, military operations, and government regulation. The telegraph was used by both Union and Confederate forces during the Civil War. For the first time, commanders far distant from battlefields could provide specific orders to troops in combat. In some instances, President Abraham Lincoln skipped over the normal chain of command to send instructions directly to officers in the field through the telegraph.[8]

The telegraph proved very useful in industry in conveying almost instant   information about price changes in products and securities, as well as news of events that might affect the supply and demand for products and the factors of production. No industry was more greatly affected by the telegraph than the railroads. The speed of communication over long distances allowed railroad management to coordinate the movement of trains moving over single tracks in opposite directions. Railroads aided the expansion of telegraph lines by granting rights-of-way to telegraph companies to set up poles and wires alongside the railroad tracks.[9]

In much of the world, telegraph services were owned and operated by the government. For the most part, this was not the case in the United States and Canada. Governments were still deeply involved in the growth of the telegraph services, both by subsidizing the infrastructure and by regulating the service. States promoted the industry by granting rights-of-way and imposing penalties for damaging lines. They also regulated the industry by imposing penalties for refusing to receive messages sent from other telegraph companies, for transmitting dispatches out of the order in which they were received, and for disclosing private communications to third parties.[10] As telegraph lines crossed state lines, the federal government gained some jurisdiction.   The Post Office operated some limited telegraph services for a time.   Later the Interstate Commerce Commission regulated interstate services, although railroads, not the telegraph industry, were the primary focus of the ICC. Later, the Federal Communications Commission gained jurisdiction, although by then telephony and radio and broadcast television was the major concern of that regulatory body.[11]

If Morse had never worked on telegraphy he would still be remembered today, at least to art historians, as an exceptionally fine painter. His work on the telegraph and, perhaps more importantly, the Morse code was of monumental importance. Morse’s work on communicating messages across enormous spaces in minimal periods of time has had enormous impact upon the way that America and the whole world have developed over the last century-and-a-half.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

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[1] Wheeler, Tom. “The First Electronic Network and the End of Time.” In From Gutenberg to Google: The History of Our Future, 87-116. Washington, D.C.: Brookings Institution Press, 2019.

[2] Wheeler, op cit..

[3] http://siarchives.si.edu/oldsite/siarchives-old/history/jhp/joseph20.htm

[4] Wheeler, op cit.

[5] https://www.sparks.it/download/00993407.pdf

[6] O’Reilly v. Morse, 56 U.S. 15 at page 96

[7] Kappos, David J., and Christopher P. Davis. 2015. “Functional Claiming and the Patent Balance.” Stanford Technology Law Review 18 (2): 365–74.

[8] Wilhelm, Pierre. “The Telegraph: A Strategic Means of Communication During the American Civil War.” Revista De Historia De América, no. 124 (1999): 81-9

[9] Du Boff, Richard B. 1980. “Business Demand and the Development of the Telegraph in the United States, 1844-1860.” Business History Review 53 (4): 459-479.

[10] Nonnenmacher, Tomas. “State Promotion and Regulation of the Telegraph Industry, 1845-1860.” The Journal of Economic History 61, no. 1 (2001): 19-36.

[11] Goldin, H. H. “Governmental Policy and the Domestic Telegraph Industry.” The Journal of Economic History 7, no. 1 (1947): 53-68.

 

Guest Essayist: James C. Clinger

On May 14, 1804, President Thomas Jefferson’s private secretary, Meriwether Lewis, and an army captain, William Clark, began an expedition exploring the territory stretching from the Mississippi River, along the Missouri River, all the way to the Pacific Ocean. But the origins of the expedition began long before this, even before Jefferson became president of the United States and well before the Louisiana Purchase took place. Only a few years after the Revolutionary War, shortly after sea captain Robert Gray had discovered the estuary of the Columbia River in present-day Oregon, Jefferson instructed Andre Michaux to “explore the country a[long] the Missouri, & thence Westwardly to the Pacific ocean.” [1] The enterprise was sponsored by the American Philosophical Society and included the support of subscribers such as George Washington and Benjamin Franklin. The expedition was quickly ended before the entourage reached the Missouri River after it was discovered that Michaux was acting as an agent of the French government. Other expeditions, led by explorers such as Zebulon Montgomery Pike, Thomas Freeman, William Dunbar, and Peter Custis, were also enlisted by Jefferson during his presidency to explore various sections of the American West, but none of these luminaries have gained the popular recognition that the Lewis and Clark Expedition retains today.

Meriwether Lewis, like Jefferson, was born into a family of Virginia planters. Lewis served for a time in the army during the Whiskey Rebellion, but saw no combat. For a period of about six months, Lewis served under the command of William Clark, who was the younger brother of the Revolutionary War commander, George Rogers Clark.     Lewis left the army as a captain to become the private secretary to President Jefferson, whom he advised on the capabilities and political loyalties of high-ranking officers in the military. Lewis availed himself of Jefferson’s personal library, which was considered one of the finest in the world. After his appointment as the commander of the expedition to the west (also known as the “Corps of Discovery”) Lewis received instruction in astronomy, botany, and medicine by some of the leading scientists in the country to prepare him for his mission. Lewis later asked William Clark to join in the command with the rank of captain, although the initial budget for the expedition included pay for only one captain.   Clark was eventually commissioned as a lieutenant, although this was not known to the crew.[2]

President Jefferson first proposed the Lewis and Clark expedition in a secret message to Congress on January 18, 1803, months before the Louisiana Purchase took place. The message stressed the need for the government to develop the fur trade along the Missouri River in what was then Spanish territory. Jefferson wished to provide new lands to compensate private fur traders who would be forced out as the federal government purchased Indian titles to land along the Mississippi River.   Jefferson hoped to induce Native-American tribes to take up agriculture and abandon their reliance upon hunting and fur-trading.[3] Although the primary purpose of the expedition was commercial in nature,  it should be understood that with that commercial development, significant expansion in government authority would necessarily take place. In addition to its implications for commerce and government, the expedition had other purposes and objectives. Jefferson’s specific marching orders to Lewis indicated that “the object of your mission is to explore the Missouri river, & such principal stream of it, as, by its course and communication with the waters of the Pacific ocean, whether the Columbia, Oregan, Colorado or any other river may offer the most direct & practicable water communication across this continent for the purposes of commerce. . . . Beginning at the mouth of the Missouri, you will take [careful] observations of latitude & longitude, at all remarkeable points on the river, & especially at the mouths of rivers, at rapids, at islands, & other places & objects distinguished by such natural marks & characters of a durable kind, as that they may with certainty be recognised hereafter….The interesting points of the portage between the heads of the Missouri, & of the water offering the best communication with the Pacific ocean, should also be fixed by observation, & the course of that water to the ocean, in the same manner as that of the Missouri.”[4]

Jefferson clearly had interest in the geographic and scientific discoveries that the expedition could make, and was particularly interested in learning if a water route from the Missouri to the Pacific could be found.  Jefferson also hoped to learn something about the life of the Native American tribes the expedition would encounter along the way.[5]

The original plan was for Lewis to lead a party of only a dozen or so men. A larger party was thought to be perceived as a military threat to the Native Americans encountered along the way. Lewis and Clark, however, decided to add some additional members for the expedition, while still keeping the numbers down to a sufficiently small size to convince the Indians of their peaceful intentions. The expedition departed from the northern bank of the Missouri River, just north of St. Charles, Missouri, on May 21, 1804. Traveling in a heavily laden keelboat and two pirogues, the expedition only traveled three-and-a-half miles before stopping to camp for the night. Twenty-eight months later, the expedition returned to St. Louis. A total of forty-five men began the expedition. Others were added for a while on the journey but left before the expedition was completed. Thirty-three returned. One member died along the way of a “bilious colic,” which may have been appendicitis.   The party included William Clark’s African-American slave, York, and a French-Canadian fur trader Toussaint Charbonneau, and his Shoshone wife, Sacagawea, who was pregnant when she joined the expedition.   Sacagawea was a talented interpreter of Indian languages, and also skilled in finding edible plants on the westward journey. Her very presence in the party was beneficial in that Native American tribes did not believe a war party would contain a woman in its midst. This provided convincing evidence that the Corps of Discovery had peaceful intentions. Throughout the entire expedition, the party had only one lethal encounter with Native Americans. A band of Piegan Blackfeet Indians attacked the camp in an attempt to steal horses and weapons.   Two of the Blackfeet were killed in the battle.

The Corps of Discovery made slow progress up the Missouri River and into the Rocky Mountains. The expedition had to proceed on foot and on horseback for much of the way after learning that there was no water route through the mountains to the ocean. The expedition made its way to the Pacific coast by the December of 1805, when it voted to spend the winter at Fort Clatsop. The entire party participated in the decision, including York and Sacagawea,  perhaps marking the first time that an African-American slave and a Native American woman had participated formally in a decision of a federal governmental body.[6]

Lewis and Clark made their return in the spring of 1806. In July, Lewis took part of the company with him while Clark took the remainder to explore different paths within the territory of present-day Montana. The two groups re-joined one another in August in present-day North Dakota. The expedition proceeded back to St. Louis, where the party arrived on September 22. As Lewis scrambled out of his canoe, the first question that he had for a local resident was “When does the post leave?” Lewis was desperate to report to the president.[7]

Lewis had been directed by Jefferson to keep a journal of his discoveries. Clark also kept a journal, which he filled with descriptions of his observations, as well as fine illustrations of flora and fauna above, beneath, and beside his handwritten text on the pages of the journal.    Lewis traveled to Washington, D.C., to report directly to the president.   What was said at that meeting is unknown, but it is clear that Lewis pledged to write and publish a book that would report his findings.   Unfortunately, the book was never written. Jefferson offered Lewis an appointment as the governor of the territory of Louisiana. Jefferson no doubt expected that the position would provide income and security for Lewis as he authored his book. However, the sedentary position did not suit Lewis, who seemed unable to master administrative duties once the expedition was completed. He suffered from serious drinking problems, indebtedness, and acute melancholy. He died from gunshot wounds, probably by his own hand, while staying at an inn on a trip to Washington.[8]

Because of Lewis’s death and failure to complete his narrative about the expedition, much of the scientific, ethnographic, and geographic findings of the enterprise were not fully appreciated. Many of the discoveries of plants and animals that the Corps made were, for a time, lost. Those species were later re-discovered many years later. Sergeant Patrick Gass, a member of the expedition, did compose a book length narrative about the venture, but that volume did not contain much of the kind of discoveries that were of original interest to President Jefferson.    Francis Biddle, later the president of the Second Bank of the United States, conducted an “audit” of the enterprise and then was the primary, but uncredited author of the official history of the expedition, which appeared in two volumes. The second of the two volumes was devoted to the botanical and zoological discoveries of Lewis and Clark, but Biddle was neither an expert scientist nor a first-hand observer of the phenomena that he was to describe. Biddle was one of the great intellectuals of his age, but he was not scientifically trained and he could have benefited greatly from the elaboration that Lewis could have offered him had he lived. For these reasons, the significance of the expedition was not recognized in the first century after the return of the Corps of Discovery as it could have been and, in fact, as it has been in more recent years as more and more scholars have slowly uncovered more evidence of the events that took place.[9] Today, we can see that the Corps of Discovery accomplished much in the way of learning of the terrain, climate, and physical environment of the trans-Mississippi West.   The expedition learned much of the Native Americans who lived in that territory. This knowledge aided in the settlement and development of a massive land area on the North American continent. Obviously, those developments have had diverse implications for all involved, most notably for the Native Americans who lived there. Nevertheless, the Lewis and Clark expedition paved the way for the future transformation of much of what is now the United States.

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University. He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

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[1] https://www.monticello.org/thomas-jefferson/louisiana-lewis-clark/origins-of-the-expedition/jefferson-s-instructions-to-michaux/

[2] Ambrose, Stephen E.  1996. Undaunted Courage: Meriwether Lewis, Thomas Jefferson, and the Opening of the American West.   New York: Simon & Schuster. Pages 133-136.

[3] Guinness, Ralph B. 1933. “Purpose of the Lewis and Clark Expedition.” Mississippi Valley Historical Review 20 (January): 90–100.

[4] https://www.smithsonianmag.com/history/meriwether-lewis-gets-his-marching-orders-96463431/

[5] Ronda, James P.  1991.  ‘A Knowledge of Distant Parts’: The Shaping of the Lewis and Clark Expedition.   Montana: The Magazine of Western History, Vol. 41, No. 4 (Autumn): 4-19.

[6] Ambrose, Stephen E.  1996. Undaunted Courage: Meriwether Lewis, Thomas Jefferson, and the Opening of the American West.   New York: Simon & Schuster. Pages 313-316.

[7] Ambrose, op cit.  Chapter 32.

[8]Ambrose, op cit.  Chapter 39

[9] Snow, Spencer. 2013. “Maps and Myths: Consuming Lewis and Clark in the Early Republic.” Early American Literature 48 (3): 671–708.

Guest Essayists: James C. Clinger and Michael W. Hail

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Constitutions can be thought of as institutional arrangements that shape the way that individual preferences will be expressed and collective decisions made within a government. The provisions of a constitution also reflect preferences, but the provisions of a constitution may have long-run impacts upon the way that individual preferences are translated into legally binding collective decisions well into the future. Some of these decisions will have implications that are unforeseen and unintended, even if the specific provisions of a constitution were intended by its framers to have different results. In particular, the constitutional framework of a state or nation shapes the path dependent development of that political community. Once the highest law of a polity has been designed, political, legal, and economic decisions are made with that framework in mind. Decisions involving sunk costs are made premised on a particular legal order. Once those decisions are made, it may be difficult to reverse them. The political and economic trajectory of a polity may be set in place, and the momentum built up over history may be hard to swerve in a different direction. Such can be seen in Kentucky’s experience with its state constitutions.

Constitutions can also be understood as covenants.[1] The role of political theory is particularly useful in understanding constitutions and the jurisprudence interpreting them. While classical understandings of Plato and Aristotle were central to the American Founders’ constitutionalism, they were even more influenced by modern political theory from Thomas Hobbes and John Locke. “The treatment of covenant …in [Thomas Hobbes] Leviathan is thoroughly Puritan, and in general should be regarded as a secularized version of the English Puritans’ theory of a commonwealth.”[2] Ultimately, the way the founders understand a constitution is the most important foundation for constitutional interpretation and this is often referred to as original intent. The meaning of provisions in any constitution will require time for judicial processes and political governance to fully articulate, and under the English common law legal system, the original understanding of those who found constitutions is central to the subsequent constitutional interpretation.

The Commonwealth of Kentucky has crafted four different constitutions.[3] Each can be seen to reflect the ideas and interests of its proponents. Each was a response to particular events and circumstances.   Each has been interpreted over time, not only by the courts but by agencies authorized to implement state law.

The first constitution was drafted in 1792 as a condition of Kentucky’s admission to the United States.[4] There were “four successive enabling acts passed by the legislatures of Virginia, that Kentucky was allowed to enter the Federal Union as an Independent State, on an equality with those which had established themselves as a nation.”[5] Kentucky had similar influences as the other states and scholars have generally concluded the resulting constitutions follow the model of the federal constitution of 1787.[6] The federal constitution was an example of American exceptionalism. “The Constitutional Convention was a signal event in the history of federalism for it was there that the American style of federalism originated.”[7] The Compact With Virginia, as the fourth enabling act has come to be known as, provided the constitutional and legal road map to statehood for Kentucky. Nine pre-constitutional conventions were held as part of the process leading to the Compact With Virginia. The tenth was the actual founding constitutional convention.

Although many Kentuckians were from Virginia, and some of the easternmost counties in Kentucky were formerly counties within Virginia, much of the first constitutional structure was drawn from the 1790 state constitution of Pennsylvania. George Nicholas, often considered the primary architect of the document at the state constitutional convention, deliberately drew from the Pennsylvania charter, which was considered among the more radical of its day. The politics of admission to the union was influential in looking to Pennsylvania also, as Kentucky was competing with Vermont in the Federalist-controlled Congress for admission as the next state after the original thirteen. The political balance of power in Congress was a cloud over the admission process that affected these considerations. Kentucky endured numerous pre-constitutional conventions and the Compact With Virginia ultimately governed Kentucky’s transition to statehood. Kentucky retained the constitutional offices, state and local administrative structures, local government forms of Virginia despite some influence from Pennsylvania. The Bill of Rights that the constitution included at the end of the document reappeared in virtually unchanged form in each of the following three Kentucky constitutions, although those provisions have been moved near the beginning of the document. Isaac Shelby was a central leader in the Kentucky constitutional conventions and the admission to statehood process.  Shelby was elected as the first Governor of Kentucky and remains to this day the only Governor elected unanimously. Isaac Shelby would return to election as Kentucky Governor a second time as Kentucky and the nation prepared for the War of 1812.

The 1792 constitution provided for a fairly broad elective franchise, a secret ballot, and provision for a referenda for constitutional conventions but provided for  no amendment process. The legislature was granted the power to regulate the slave trade. The bicameral legislature was made up of eleven members in the senate and no fewer than forty and no more than one hundred members of a house of representatives. An electoral college would select both the governor and the members of the senate.

The second constitution was drafted in large part in response to a controversy over gubernatorial succession. The document responded to demands for more restriction on government powers, including limits on the authority of the legislature to regulate slavery. The electoral college was eliminated, providing for direct election of all constitutional offices.   The secret ballot was eliminated and viva voce voting put in its place. The constitution specified that the senate would have at least twenty-four members, with no fewer than fifty-eight in the house, nor more than one hundred. 

The third constitutional convention met in 1849 and the resulting document was ratified by public vote in 1850. The issue of slavery hung heavily over the constitutional deliberations. The influence of Jacksonian democracy could be seen in the document, with more offices up for election, with a long ballot being the result. The document specified that the senate would have thirty-eight members with one hundred in the house. For the first time, public education was covered at length, with the document establishing a Common School Fund to help finance schools. Slavery and education were the only policy issues to receive extensive attention.

The fourth and current constitution was ratified after a convention in 1891. The document was drafted in a time of progressive reform in much of the country. In Kentucky, there was a great deal of resentment felt toward corporations and specifically, railroads. It was widely believed that the legislature had been badly corrupted by corporate interests. As a result, the new constitution put many restrictions on local and special legislation that was believed to favor special interests. The preamble was changed to identify Kentucky as a “commonwealth” and to assert that all power is “inherent in the people.” The bill of rights was moved to the beginning of the document. The secret ballot which been absent in the last two constitutions was returned. For the first time, the constitution provided for an amendment process so the constitution could be changed in a piecemeal basis. The document was filled with policy-specific details including special provisions regarding corporations, local government, debt, and taxes. The constitution limited the governor and other constitutional officers to one four-year term, a restriction that was not removed until the 1990s. The General Assembly was to meet only every other year, although the legislature was authorized to meet in annual sessions by constitutional amendment in 2001. Judges were to be elected in non-partisan races.

Kentucky’s fourth and, thus far, last constitution placed substantial curbs on state and local governments much like other states, particularly southern state constitutions, have done. However, while Kentucky has long been a socially conservative state, the constitution–and its interpretation–have not pushed the Commonwealth as far to the right as some other southern states have gone, particularly on fiscal and regulatory matters. What is notable is that the basic political trajectory of the Commonwealth’s policies and politics can be understood in light of  the Kentucky courts’ decisions which have added to and sometimes subtracted from the actual constitutional text.

Section 14 of the Constitution guaranteed that “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The court structure was completely revamped in the 1970s, but the “open courts” provisions have remained untouched. This has prevented efforts to institute tort reform or other limitations upon liability that are common in other states. Legislation that would have had medical malpractice claims pass through a medical review process before heading to court were struck down as unconstitutional.[8]

The constitution explicitly listed permissible tax sources for both state and local government. An income tax for local governments was not authorized, but license taxes were. In the early twentieth century, the city of Louisville imposed occupational license taxes in which the liability of each taxpayer was defined as a percentage of their earned income. This levy was quickly challenged as an unconstitutional tax. The state’s highest court ruled in the City of Louisville v. Sebree case that the occupational license tax—which was a flat income tax under another name—was a permissible tax under the constitution.[9]

Section 246 of the Constitution also limited the compensation given to state officials, with the highest sum permitted set at $12,000. Though unamended since 1949, the  constitution was construed in 1962 to permit the Commonwealth to pay officers and employees an amount equal in buying power to that of the standard set in 1949.[10] This application of the “rubber dollar doctrine” has probably permitted the state to recruit and retain employees who would not be willing to work for the constitutionally specified salary. Nevertheless, it is not clear that this practice is what the framers intended.

One of the most important constitutional rulings which has expanded the scope and size of government in the Commonwealth dealt with public education. Kentucky, like most states, has long had a substantial share of the financing of public education provided by local tax sources, primarily the property tax. Since tax bases are limited, and tax levies legally limited by the state, public schools had difficulty raising money and some school districts were much more limited in their revenues than others. General language in Section 183 of the Constitution stipulating that “The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State” was used by the state supreme court to invalidate the existing financing system.[11]    Since that decision, Kentucky has risen from one of the lowest spending states on public education to one that is in the middle ranks of the states.[12]

Kentucky has periodically had discussion of constitutional reform but despite commissions and studies, Kentucky continues to operate under the fourth Constitution of 1891.[13] Amending the Kentucky Constitution requires passage in both the House and Senate by three-fifths majority in each chamber and amendments can originate in either chamber. An amendment approved by the session of the General Assembly is placed on the general election ballot for consideration by the Kentucky electorate and a simple majority is required for ratification of an amendment. There can be no more than four amendments considered by the voters in a general election. The Governor has no authority in the amendment process, other than the duty to make a proclamation regarding the amended constitution if approved by the voters in the general election.

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University.  He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Michael W. Hail is Professor of Government and Director of the Statesmanship at Morehead State University in Kentucky, and serves as Government Program Coordinator and Director of the Intelligence Center for Academic Excellence (ICCAE). He is co-editor of Kentucky Government, Politics, and Policy. Dr. Hail focuses his research on federalism and intergovernmental management. His research interests include economic development policy, state and local government, American political thought, and Western political philosophy. Dr. Hail teaches courses on Public Administration, Federalism and Constitutional Law, Public Management, State and Local Government, Economic Development, Western Political Philosophy, Intelligence Studies, and American Political Thought. 

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[1] Elazar, Daniel.  Covenant and Constitutionalism: The Covenant Tradition in Politics.  New York: Routledge, 2018.

[2] Schneider, Herbert W., ed.  Thomas Hobbes Leviathan – Parts One and Two. New York: Macmillan Publishing Company, 1958, p.x.

[3] Clinger, James C., and Michael W. Hail. Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

[4] Ireland, Robert M.  “The Kentucky Constitution.”  Clinger, James C., and Michael W. Hail.  Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

[5] Thorpe, Francis Newton. The Federal and State Constitutions: Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America. Washington Government Printing Office, 1909.

[6] Taulbee, Ashley.  The Kentucky Constitutional Conventions and the Federalism of the Founding Fathers.  Master Thesis.  Morehead State University, 2017.  Taulbee states, “There are several aspects of influence and interconnectedness between national constitutionalism and state constitutionalism reflected in the Kentucky case. The political theory influences, as well as the structure of the institutions in the U.S. Constitution of 1787, and certainly the political thought expressed at the convention in Philadelphia, all are major influences on how state constitutional conventions are modeled. Core constitutional provisions such as separation of powers, checks and balances, and bicameral legislative bodies are among the constitutional features of the U.S. constitution that are consistently incorporated in state constitutions. The politics in Congress as well as in the territory itself play a significant role in framing the terms under which statehood and state constitutional conventions can operate.”(pp.3-4)

[7] Smith, Troy.  “Constitutional Convention of 1787.”  Federalism In America.  Westport, CT: Greenwood Press, 2006, p.116.

[8] Commonwealth v. Claycomb, 2017-SC-000614.

[9] City of Louisville v. Sebree, 214 S.W.2d 248

[10]Matthews v. Allen,  360 S.W.2d 135 (1962

[11] Rose v. Council for Better Education, 790 S.W.2d 186

[12] Digest of Education Statistics,  Department of Education, National Center for Educations Statistics.  https://nces.ed.gov/programs/digest/2017menu_tables.asp

[13] Clinger, James C., and Michael W. Hail. Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

Guest Essayists: James C. Clinger and J. Drew Seib

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State legislatures normally have had only very few, basic constitutional procedural requirements regarding the passage of legislation. Most state constitutions stipulate that laws can be enacted only after bicameral passage of identical measures, followed by presentment to the chief executive. There may also be requirements that bills receive “readings” on three or more legislative days before passage. Practically speaking, most legislative procedure is determined by internal rules of each chamber. These rules refer to bill referral to committees, methods of bringing bills to the chamber floor, procedures for disciplining members, etc.

Many of the early state constitutions did not provide a means by which the governor could block legislation through a veto. This reflected an anti-executive power bias that carried over from the opposition to the king in colonial times. Gradually, however, the powers of governors increased, and among the most important powers of the governor was the power to veto. In the 1990s, North Carolina’s governor was the last to gain the veto power. The veto power varies dramatically among the states, particularly regarding which measures are subject to veto and the ease with which the legislatures can override the veto. Many states now permit an item veto for appropriation bills, but not for other legislation. Proposed constitutional amendments approved as joint resolutions by the legislature cannot be vetoed by the governor, but instead in most states today go to the electorate for approval. In several states vetoes can be overridden by margins much smaller than the two-thirds requirement necessary for overriding presidential vetoes. In some states, only a simple majority of those elected to serve in each chamber is needed to override the governor’s veto.[1]

In the early 20th century, many states began to adopt direct democracy mechanisms, such as the initiative, that permitted citizens and interest groups to propose new statutory laws or new constitutional amendments without going through the legislature. This has led to the adoption of new laws that would have not gained legislative approval and new institutional changes that dramatically changed legislative careers.[2]

One of the notable changes associated with the initiative process is the adoption of legislative term limits placed within state constitutions. The limits prevent elected officials, often legislators, from serving beyond a specified number of terms in office. Gubernatorial term limits have been more common for years, but only more recently have term limits on state legislators become common. These limits have generally been opposed by state legislators whose careers would be altered by the constraints. Opponents of term limits have also said that the restrictions reduce the professionalism of their elected office and shift the balance of power from legislators to the governor and legislative staff.[3]

For much of American history, state legislatures could be characterized as “amateur” public institutions. Legislators were not well-paid, had few resources for legislative research, constituency service, or administrative agency oversight. They worked as part-time volunteers who did not expect to remain in office for an extended period of time. During the 1960s and 70s in particular, most but not all state legislatures increased legislative salaries (or legislator per diem payments), adopted longer legislative sessions, increased legislative staffing, and created legislative research bureaus to help with bill drafting and analysis of proposed bills or policy problems. This seems to have led to more member stability and longer legislative tenure. It may have also motivated activists in the term limits movement, who distrusted professional, career politicians. Scholarly research on this topic has found that professionalization of state legislatures has led to more African-Americans and fewer women entering the chambers.[4] It may have also increased the size of the Democratic Party share of the legislature, at least outside the South,[5] though the effects of professionalization appear to vary by party.[6] The imposition of term limits does not have appeared to have ended political careerism, since many term limited state legislators pursue other offices, including congressional seats.[7] Legislative professionalism as well as one party dominance has also been found to particularistic, such as local legislation and special bills, which are apparently aimed at boosting chances for re-election.[8]

Finally, it should be noted that the role of state legislatures has changed because of actions of the federal government. Under the national supremacy clause, discussed above, federal law prevails when it is in conflict with state law. This practice, known as preemption, has been used throughout much of American history.[9] More recently, however, state laws have been invalidated through preemption not only when laws enacted by Congress conflict with laws enacted by state legislatures but also when federal agency interpretations of how or whether to enforce laws may conflict with laws enacted by state legislatures.[10] Intergovernmental grant programs may also lead to a “work around” the state legislatures. For example, the Patient Protection and Affordable Care Act provided that state chief executives, not legislatures, would  approve the creation of state health insurance exchanges.[11]

While very influential in national politics early on in U.S. history, the addition of particularly the 17th Amendment, but also the 16th, 19th and 26th Amendments have weakened the role of state legislatures in national politics. What is more, federal preemption by not only laws enacted but also federal agency interpretation of laws has weakened the role of state legislatures in national politics.

Since their inception, the state legislatures have served as the proverbial “lab of democracy” both across states and for the federal government. The variation in design, rules, and procedures has served as an opportunity to study institutional arrangements and their effects.  Many of the features in the U.S. Congress were taken from practices in state legislature and states often adopt successful reforms from other states.[12]  Their variation in designs is an opportunity to learn and strengthen political institutions in the United States.

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University.  He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Dr. J. Drew Seib joined the faculty at Murray State University in the Fall of 2012. He teaches courses in American politics and research methods. Dr. Seib is the advisor for the Murray State Chapter of Pi Sigma Alpha, the National Political Science Honor Society. Dr. Seib received his Ph.D. and M.A. from Southern Illinois University with an emphasis in American political behavior. His dissertation, Frantic Voters: How Context Affects Information Searches, was awarded a prestigious National Science Foundation Dissertation Improvement Grant. Dr. Seib received his B.A. from Westminster College in Fulton, MO, triple majoring in political science, Spanish, and international studies, and minoring in European studies.

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[1] https://ballotpedia.org/Veto_overrides_in_state_legislatures

[2] See Gerber, Elisabeth R., Lupia, Arthur, McCubbins, Mathew D., and Kiewiet, D. Roderick. Stealing the Initiative: How State Government Responds to Direct Democracy. Upper Saddle River, NJ: Prentice Hall. 2001.

[3] Carey, John M., Richard G. Niemi, and Lynda W. Powell.  1998. “The Effects of Term Limits on State Legislatures.”  Legislative Studies Quarterly, 23(2): 271-300.

[4] Squire, Peverill.  “Legislative Professionalization and Membership Diversity in State Legislatures.” Legislative Studies Quarterly.  Vol. 17, No. 1. (1992): 69-79 .

[5] Meinke, Scott R., and Edward B. Hasecke. “Term Limits, Professionalization, and Partisan Control in U.S. State Legislatures.” The Journal of Politics 65, no. 3 (2003): 898-908.

[6] Sanbonmatsu, Kira.  2002. “Political Parties and the Recruitment of Women to State Legislatures.”  The Journal of Politics, 64(3):791-809.

[7] Carey, John M., Niemi, Richard G., and Powell, Lynda.  Term Limits in the State Legislatures.  Ann Arbor: University of Michigan Press. (2000).

[8] Gamm, Gerald, and Kousser, Thad. “Broad Bills or Particularistic Policy? Historical Patterns in American State Legislatures.” The American Political Science Review 104, no. 1 (2010): 151-70.

[9] For an early example, see Gibbons v. Ogden).  22 U.S. 1. (1824).

[10] See, for example, Arizona v. United States, 567 U.S. 387 (2012)

[11] Fahey, Bridget A.. “Consent Procedures and American Federalism.” Harvard Law Review Vol. 128,(2014): 1564-1629.

[12] see Berry, Frances Stokes, and William D. Berry. 1990. “State Lottery Adoptions as Policy Innovations: An Event History Analysis.” American Political Science Review 84(2): 395–415.

 

Guest Essayists: James C. Clinger and J. Drew Seib

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The legislatures in American state governments developed alongside and even prior to the more famous and well-studied Congress of the federal government. Their origins can be found in the colonial assemblies that existed before the American Revolution. Those institutions developed structures, procedures, and qualifications for office-holding that influenced the development of the national legislature. This essay will briefly describe the development of the state legislatures and their relationship to the federal government.

Legislatures in the American colonies developed very quickly, largely at the request of local interests, not at the behest of the British government. These assemblies varied greatly from one another, although most, but not all, were bicameral, with different qualifications for office-holding and for voting for different chambers.[1] These assemblies were not modeled after the British parliament, which in its modern form did not exist. In fact, the first legislatures in the American colonies were created long before the Glorious Revolution of 1688, which established the principle of parliamentary supremacy over the monarch.

During the American Revolution, royal governors often dismissed or at least attempted to suspend the colonial assemblies. Most of the newly declared states established legislatures that have come to be known as provincial congresses, which lasted until the end of hostilities. At that time, formally recognized state legislatures were created, and were allowed great authority under the Articles of Confederation. Once the new federal constitution was drafted, the state legislatures exercised new roles within the newly created union as well as within their respective states. Under the new constitution, the electorate choosing the members of the United States House of Representatives were to have the same qualifications “requisite for the Electors of the most numerous Branch of the State Legislature.”[2] At that time, states frequently had more stringent voter qualifications to vote for the upper chamber of the legislature (i.e., the senate) than they had for the more numerous, lower chamber (e.g., the house of representatives, although many states use a variety of names for their lower chambers). By setting higher voter qualifications (usually regarding age, sex, property ownership, “freemen” status) for their own legislatures, the state could affect the electorate choosing its delegation to the United States House of Representatives.

Originally, the state legislatures directly selected the United States senators from each state, although that practice was ended by the ratification of the 17th Amendment, which established direct election of U.S. senators.[3] In the early years of the constitutional republic, the state legislatures regularly sent instructions to their senate delegations, describing how they should vote on issues in Congress. Earlier, under the Articles of Confederation, the state legislatures not only chose their state’s delegates to congress but also had the authority to recall them from office if the legislatures were displeased with their performance.[4]

The federal constitution also assigned a role for the state legislatures in determining the “Times, Places, and Manner” of federal house members and senators, subject to the proviso that “the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.”[5] Years later, the discretion of state legislatures was constrained further by the ratification of the 15th, 19th, and 26th amendments (creating a right to vote for people of all races, for women, and for eighteen year olds), and by the passage of the Voting Rights Act and other pieces of legislation.

The Constitution also provided a role for state legislatures in amending the federal charter, by either proposing a convention for proposing amendments (by a vote of two-thirds of the states) and by ratifying constitutional amendment proposals (by a vote of three-fourths of the states).[6] All successful constitutional amendment proposals have been proposed, not by a convention called by the state legislatures, but by two-thirds votes of each chamber in Congress. All but one successful amendment—the exception being the 21st, which repealed prohibition–were ratified by the state legislatures. The repeal of prohibition was ratified by special conventions in the states.

The Constitution also stipulated that certain powers were forbidden for the states. Although state legislatures were not explicitly mentioned, legislatures would have been the body enacting such prohibited laws (e.g., regarding titles of nobility, currency, interstate taxation).[7]  The constitution also stipulates that federal laws, including the constitution, laws, and treaties, constitute the “supreme Law of the Land,” and state officers, including members of the state legislatures, must be bound by oath or affirmation to uphold the constitution.[8] The national supremacy clause was included in the constitution only after the defeat of a proposal by James Madison to authorize Congress to negate any state law that it opposed.[9]

The early state legislatures varied in structure but had some common structural elements.   Most, but not all (i.e., Georgia and Pennsylvania had only one legislative chamber and today Nebraska is the only unicameral legislature in the U.S.), were bicameral. A small number chose their senators through an electoral college, as was sometimes done for governors and as is still done for the federal president. That practice was not common and was ended completely well before the civil war. Most state legislatures developed standing committees early in their histories, often well before the federal Congress had established that practice. State legislators generally controlled the internal rules of their chambers and selected their own leadership. Once political parties were well-established, the organization of each chamber (leadership selection, committee assignment, and committee chair selection) became largely a matter for the party organizations to decide. Today, even Nebraska’s non-partisan legislature organizes along partisan lines.[10] Most legislatures met in annual sessions and most legislators served terms of office of one year, although some members of the upper chamber served two or three years.   Later in the nineteenth century, biennial sessions became standard practice, but in the late 20th century annual sessions became the norm again.[11] The size of each chamber differed widely among the states. Originally, South Carolina’s lower chamber had 199 members, while its upper chamber had only 13. Delaware, on the other hand, had only 21 in its lower chamber and nine in its upper.[12] Most legislators represented single member districts. The number of legislators was and still is significant because as the size of the legislative chamber increases, the average size of each district or constituency diminishes. Usually the demographic diversity of the constituency diminishes as the size of the district goes down. This changes the task of representation of constituency interests dramatically.[13] The number of seats in the lower chamber compared to the number in the upper chamber affects the difficulty that an ambitious, career-minded legislator may have to move from the lower to upper chamber.[14]

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University.  He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Dr. J. Drew Seib joined the faculty at Murray State University in the Fall of 2012. He teaches courses in American politics and research methods. In addition to his teaching duties, Dr. Seib is the advisor for the Murray State Chapter of Pi Sigma Alpha, the National Political Science Honor Society, and Racers for Bernie. His research focuses on how voters make decisions. He is especially interested in how voters acquire information during campaigns under a variety of contexts and conditions. Dr. Seib also privately consults on web-based surveys. Dr. Seib received his Ph.D. and M.A. from Southern Illinois University with an emphasis in American political behavior. His dissertation, Frantic Voters: How Context Affects Information Searches, was awarded a prestigious National Science Foundation Dissertation Improvement Grant. Dr. Seib received his B.A. from Westminster College in Fulton, MO, triple majoring in political science, Spanish, and international studies, and minoring in European studies.

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[1] Squire, Peverill.  The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Ann Arbor: University of Michigan Press, 2012.

[2] United States Constitution, Article 1, Section 2, Clause 1.

[3] United States Constitution, Article 1, Section 3, Clause 1, and United States Constitution, 17th Amendment, Section 1.

[4] United States Articles of Confederation, Article 5.

[5] United States Constitution, Article 1, Section 4, Clause 1.

[6] United States Constitution, Article 5.

[7] United States Constitution, Article 1, Section 10.

[8] United States Constitution, Article 6, Sections 2-3.

[9] Hobson, Charles F. “The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government.” The William and Mary Quarterly 36, no. 2 (1979): 215-35.

[10] Wright, Gerald C. and Brian F. Shaffner. 2002. “The Influence of Party: Evidence from the State Legislatures.”  American Political Science Review 96(2): 367-379.

[11] Squire, Peverill. “American State Legislatures in Historical Perspective.” PS: Political Science & Politics 52, no. 3 (2019): 417–21.

[12] Squire, Peverill.  The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Ann Arbor: University of Michigan Press, 2012, 84.

[13] Denzau, Arthur T., and Michael C. Munger. “Legislators and Interest Groups: How Unorganized Interests Get Represented.” The American Political Science Review 80, no. 1 (1986): 89-106.

[14] Squire, Peverill. “Member Career Opportunities and the Internal Organization of Legislatures.” Journal of Politics, Vol. 50, No. 3 (1988): 716-44.