Month: September 2016

In Honor of the 11th Anniversary of John Roberts Being Sworn in as the 17th Chief Justice of the United States Supreme Court, A Brief History of Our Nation’s Chief Justices

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On September 29, 2005, John G. Roberts, Jr., was sworn in as the 17th Chief Justice of the United States Supreme Court. You can watch his swearing in ceremony here.

This seems like a nice opportunity to spotlight all of our nation’s chief justices (note: all images and biographical information are provided below from the Supreme Court Historical Society):

(1) Chief Justice John Jay, 1789-1795

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JOHN JAY was born on December 12, 1745, in New York, New York, and grew up in Rye, New York. He was graduated from King’s College (Now Columbia University) in 1764. He read law in a New York law firm and was admitted to the bar in 1768. Jay served as a delegate to both the First and Second Continental Congresses, and was elected President of the Continental Congress in 1778. He also served in the New York State militia. In 1779, Jay was sent on a diplomatic mission to Spain in an effort to gain recognition and economic assistance for the United States. In 1783, he helped to negotiate the Treaty of Paris, which marked the end of the Revolutionary War. Jay favored a stronger union and contributed five essays to The Federalist Papers in support of the new Constitution. President George Washington nominated Jay the first Chief Justice of the United States on September 24, 1789. The Senate confirmed the appointment on September 26, 1789. In April 1794, Jay negotiated a treaty with Great Britain, which became known as the Jay Treaty. After serving as Chief Justice for five years, Jay resigned from the Supreme Court on June 29, 1795, and became Governor of New York. He declined a second appointment as Chief Justice in 1800, and President John Adams then nominated John Marshall for the position.

(2) Chief Justice John Rutledge, 1795

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JOHN RUTLEDGE was born in Charleston, South Carolina, in September 1739. He studied law at the Inns of Court in England, and was admitted to the English bar in 1760. In 1761, Rutledge was elected to the South Carolina Commons House of Assembly. In 1764, he was appointed Attorney General of South Carolina by the King’s Governor and served for ten months. Rutledge served as the youngest delegate to the Stamp Act Congress of 1765, which petitioned King George III for repeal of the Act. Rutledge headed the South Carolina delegation to the Constitutional Convention in 1787 and served as a member of the South Carolina Ratification Convention the following year. On September 24, 1789, President George Washington nominated Rutledge one of the original Associate Justices of the Supreme Court of the United States. The Senate confirmed the appointment two days later. After one year on the Supreme Court, Rutledge resigned in 1791 to become Chief Justice of South Carolina’s highest court. On August 12, 1795, President George Washington nominated Rutledge Chief Justice of the United States. He served in that position as a recess appointee for four months, but the Senate refused to confirm him.

(3) Chief Justice Oliver Ellsworth, 1796-1800

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OLIVER ELLSWORTH was born on April 29, 1745, in Windsor, Connecticut. Ellsworth attended Yale College until the end of his sophomore year, and then transferred to the College of New Jersey (now Princeton University), where he was graduated in 1766. He read law in a law office for four years and was admitted to the bar in 1779. Ellsworth was a member of the Connecticut General Assembly from 1773 to 1776. From 1777 to 1784, he served as a delegate to the Continental Congress and worked on many of its committees. After service on the Connecticut Council of Safety and the Governor’s Council, he became a Judge of the Superior Court of Connecticut in 1785. As a delegate to the Federal Constitutional Convention in Philadelphia in 1787, Ellsworth helped formulate the “Connecticut Compromise,” which resolved a critical debate between the large and small states over representation in Congress. Ellsworth was elected to the First Federal Congress as a Senator. There he chaired the committee that drafted the Judiciary Act of 1789, which established the federal court system. On March 3, 1796, President George Washington nominated Ellsworth Chief Justice of the United States and the Senate confirmed the appointment the following day. He resigned from the Supreme Court on September 30, 1800.

(4) Chief Justice John Marshall, 1801-1835

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JOHN MARSHALL was born on September 24, 1755, in Germantown, Virginia. Following service in the Revolutionary War, he attended a course of law lectures conducted by George Wythe at the College of William and Mary and continued the private study of law until his admission to practice in 1780. Marshall was elected to the Virginia House of Delegates in 1782, 1787, and 1795. In 1797, he accepted appointment as one of three envoys sent on a diplomatic mission to France. Although offered appointment to the United States Supreme Court in 1798, Marshall preferred to remain in private practice. Marshall was elected to the United States House of Representatives in 1799, and in 1800 was appointed Secretary of State by President John Adams. The following year, President Adams nominated Marshall Chief Justice of the United States, and the Senate confirmed the appointment on January 27, 1801. Notwithstanding his appointment as Chief Justice, Marshall continued to serve as Secretary of State throughout President Adams’ term and, at President Thomas Jefferson’s request, he remained in that office briefly following Jefferson’s inauguration. Marshall served as Chief Justice for 34 years, the longest tenure of any Chief Justice. During his tenure, he helped establish the Supreme Court as the final authority on the meaning of the Constitution.

(5) Chief Justice Roger Brooke Taney, 1836-1864

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ROGER BROOKE TANEY was born in Calvert County, Maryland, on March 17, 1777. He was graduated from Dickinson College in 1795. After reading law in a law office in Annapolis, Maryland, he was admitted to the bar in 1799. In the same year, he was elected to the Maryland House of Delegates. Defeated for re-election, he was elected to the State Senate in 1816 and served until 1821. In 1823, Taney moved to Baltimore, where he continued the practice of law. From 1827 to 1831, Taney served as Attorney General for the State of Maryland. In 1831, Taney was appointed Attorney General of the United States by President Andrew Jackson. On September 23, 1833, Taney received a recess appointment as Secretary of the Treasury. When the recess appointment terminated, Taney was formally nominated to serve in that position, but the Senate declined to confirm the appointment in 1834. In 1835, Taney was nominated as Associate Justice by President Jackson to succeed Justice Duvall, but the Senate failed to confirm him. On December 28, 1835, President Jackson nominated Taney Chief Justice of the United States. The Senate confirmed the appointment on March 15, 1836. Taney served as Chief Justice for twenty-eight years.

(6) Chief Justice Salmon Portland Chase, 1864-1873

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SALMON PORTLAND CHASE was born in Cornish, New Hampshire, on January 13, 1808, and was raised in Ohio. He returned to New Hampshire to attend Dartmouth College and was graduated in 1826 at the age of eighteen. He then moved to Washington, D.C., where he read law under Attorney General William Wirth. Chase was admitted to the bar in 1829 and moved to Cincinnati, Ohio, where he worked as a lecturer, writer, and editor while he established a legal practice. Chase became involved in the anti-slavery movement, and in 1848 he helped to write the platform of the Free Soilers Party. In 1848, the Ohio legislature elected Chase to the United States Senate, where he served one six-year term. In 1855, he was elected to a four-year term as Governor of Ohio, and in 1860 he was re-elected to the United States Senate. Chase resigned his Senate seat after only two days to accept a wartime appointment by President Abraham Lincoln as Secretary of the Treasury. He resigned from that post in June 1864. Six months later, on December 6, 1864, President Lincoln nominated Chase Chief Justice of the United States. The Senate confirmed the appointment on December 15, 1864. Chase served as Chief Justice for eight years

(7) Chief Justice Morrison R. Waite, 1874-1888

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MORRISON R. WAITE was born in Lyme, Connecticut on November 29, 1816. He was graduated from Yale College in 1837 and moved to Ohio to read law with an attorney in Maumee City. Waite was admitted to the bar in 1839 and practiced in Maumee City until 1850. He then moved to Toledo, where he practiced until 1874. Waite was elected to the Ohio General Assembly in 1850 and served one term. He ran unsuccessfully for the United States House of Representatives in 1846 and 1862. Waite declined an appointment to the Ohio Supreme Court in 1863. In 1871, President Ulysses S. Grant appointed Waite to a Commission established to settle United States claims against Great Britain, arising out of the latter’s assistance to the Confederacy during the Civil War. The proceedings resulted in an award of $15.5 million in compensation to the United States. Upon his return from Europe, Waite was elected to the Ohio Constitutional Convention of 1873 and was unanimously selected to serve as its president. During the Convention, on January 19, 1874, President Grant nominated Waite Chief Justice of the United States. The Senate confirmed the appointment two days later. Waite served as Chief Justice for fourteen years.

(8) Chief Justice Melville Weston Fuller, 1888-1910

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MELVILLE WESTON FULLER was born in Augusta, Maine, on February 11, 1833, and was graduated from Bowdoin College in 1853. Fuller read law in Bangor, Maine, and was admitted to the bar after six months of study at Harvard Law School. In 1855, Fuller began to practice law in Augusta, Maine, and was elected President of the Augusta Common Council and appointed city solicitor. In 1856, Fuller moved west to Chicago, where he established a law practice and became active in politics. He was elected to the Illinois House of Representatives in 1863 and served one term. In succeeding years he was offered the positions of Chairman of the Civil Service Commission and Solicitor General of the United States but declined both. President Grover Cleveland nominated Fuller Chief Justice of the United States on April 30, 1888. The Senate confirmed the appointment on July 20, 1888. While on the Court, Fuller served on the Venezuela-British Guiana Border Commission and the Court of Permanent Arbitration at the Hague. Fuller served twenty-one years as Chief Justice.

(9) Chief Justice Edward Douglas White, 1910-1921

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EDWARD DOUGLAS WHITE was born in the Parish of Lafourche, Louisiana, on November 3, 1845. While White was studying at Georgetown College (now Georgetown University) the Civil War began and he returned home to join the Confederate Army. He was captured in 1863 by Union troops and remained in captivity until the end of the War. Upon his release in 1865, White read law and attended the University of Louisiana. He was admitted to the bar in 1866 and established a law practice in New Orleans. White was elected to the Louisiana State Senate in 1874, and from 1878 to 1880 he served on the Louisiana Supreme Court. In 1891, the State Legislature elected him to the United States Senate. President Grover Cleveland nominated White to the Supreme Court of the United States on February 19, 1894. The Senate confirmed the appointment the same day. White had served for sixteen years on the Court when, on December 12, 1910, President William H. Taft nominated him Chief Justice of the United States. The Senate confirmed the appointment the same day. White was the first Associate Justice to be appointed Chief Justice. White served on the Court for a total of twenty-six years, ten of them as Chief Justice.

(10) Chief Justice William Howard Taft, 1921-1930

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WILLIAM HOWARD TAFT was born in Cincinnati, Ohio, on September 15, 1857. He was graduated from Yale University in 1878 and from Cincinnati Law School in 1880. Taft began his career in private practice in Cincinnati. After serving as an assistant prosecutor and a Judge of the Ohio Superior Court, he was appointed Solicitor General of the United States in 1890. From 1892 to 1900, Taft served as a Judge on the United States Court of Appeals for the Sixth Circuit. In 1901, he was named Civilian Governor of the Philippines. In 1904, President Theodore Roosevelt appointed Taft Secretary of War. Taft was elected President of the United States in 1908 and served one term. After leaving the White House, Taft taught constitutional law at Yale University and appeared frequently on the lecture circuit. From 1918 to 1919, he served as Joint Chairman of the War Labor Board. President Warren G. Harding nominated Taft Chief Justice of the United States on June 30, 1921. The senate confirmed the appointment the same day, making Taft the only person in history to have been both President and Chief Justice. As Chief Justice he focused on the administration of justice and at his request Congress created the Conference of Senior Circuit (Chief) Judges to oversee court administration. This body became the Judicial Conference of the United States. Taft retired from the Court on February 3, 1930, after serving eight years as Chief Justice.

(11) Chief Justice Charles Evans Hughes, 1930 – 1941

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CHARLES EVANS HUGHES was born in Glens Falls, New York, on April 11, 1862. He was graduated in 1881 from Brown University and received a law degree from Columbia University in 1884. For the next twenty years, he practiced law in New York, New York, with only a three-year break to teach law at Cornell University. Hughes was elected Governor of New York in 1905 and re-elected two years later. On April 25, 1910, President William H. Taft nominated Hughes to the Supreme Court of the United States, and the Senate confirmed the appointment on May 2, 1910. Hughes resigned from the Court in 1916 upon being nominated by the Republican Party to run for president. After losing the election to Woodrow Wilson, he returned to his law practice in New York. Hughes served as Secretary of State from 1921 to 1925. He subsequently resumed his law practice while serving in the Hague as a United States delegate to the Permanent Court of Arbitration from 1926 to 1930. On February 3, 1930, President Herbert Hoover nominated Hughes Chief Justice of the United States, and the Senate confirmed the appointment on February 13, 1930. He served as Chairman of the Judicial Conference of the United States from 1930 to 1941. Hughes retired on July 1, 1941, after serving eleven years as Chief Justice.

(12) Chief Justice Harlan Fiske Stone, 1941-1946

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HARLAN FISKE STONE was born on October 11, 1872, in Chesterfield, New Hampshire. He was graduated from Amherst College in 1894. After teaching high school chemistry for one year, he studied law at Columbia University, where he received his degree in 1898. In 1899, Stone was admitted to the bar and joined a New York law firm. For the next twenty-five years he divided his time between his practice and a career as a professor of law at Columbia University. He became Dean of the Law School in 1910 and remained in that position for thirteen years. In 1924, President Calvin Coolidge appointed Stone Attorney General of the United States. The following year, on January 5, 1925, President Coolidge nominated him to the Supreme Court of the United States. The Senate confirmed the appointment February 5, 1925. After sixteen years of service as an Associate Justice, Stone was nominated Chief Justice of the United States by President Franklin D. Roosevelt on June 12, 1941. He served as Chairman of the Judicial Conference of the United States from 1941 to 1946. Stone served a total of twenty years on the Court.

(13)  Chief Justice Fred M. Vinson, 1946-1953

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FRED M. VINSON was born in Louisa, Kentucky, on January 22, 1890. He was graduated from Centre College in 1909 and from its Law School two years later. In 1911, Vinson was admitted to the bar and began to practice law in Ashland, Kentucky. Vinson became City Attorney of Ashland and, in 1921, Commonwealth’s Attorney for the County. He was elected to the United States House of Representatives in 1924 and was re-elected in 1926. He resumed his Ashland practice for two years and then won re-election to the House for four consecutive terms. In 1938, President Franklin D. Roosevelt appointed him to the United States Court of Appeals for the District of Columbia Circuit. Vinson served the Roosevelt Administration during World War II in a succession of positions starting in 1943: Director of the Office of Economic Stabilization, Administrator of the Federal Loan Agency, and Director of the Office of War Mobilization and Reconversion. In 1945, shortly after the end of the War, President Harry Truman appointed Vinson Secretary of the Treasury. On June 6, 1946, President Truman nominated Vinson Chief Justice of the United States. The Senate confirmed the appointment on June 20, 1946. He served as Chairman of the Judicial Conference of the United States from 1946 to 1953. Vinson served for seven years as Chief Justice.

(14) Chief Justice Earl Warren, 1953-1969

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EARL WARREN was born in Los Angeles, California, on March 19, 1891. He was graduated from the University of California in 1912 and went on to receive a law degree there in 1914. He practiced for a time in law offices in San Francisco and Oakland. In 1919, Warren became Deputy City Attorney of Oakland, beginning a life in public service. In 1920, he became Deputy Assistant District Attorney of Alameda County. In 1925, he was appointed District Attorney of Alameda County, to fill an unexpired term, and was elected and re-elected to the office in his own right in 1926, 1930, and 1934. In 1938, he was elected Attorney General of California. In 1942, Warren was elected Governor of California, and he was twice re-elected. In 1948, he was the Republican nominee for Vice President of the United States, and in 1952, he sought the Republican party’s nomination for President. On September 30, 1953, President Dwight D. Eisenhower nominated Warren Chief Justice of the United States under a recess appointment. The Senate confirmed the appointment on March 1, 1954. Warren served as Chairman of the Judicial Conference of the United States from 1953 to 1969 and as Chairman of the Federal Judicial Center from 1968 to 1969. He also chaired the commission of inquiry into the assassination of President John F. Kennedy in 1963. He retired on June 23, 1969, after fifteen years of service.

(15) Chief Justice Warren E. Burger, 1969-1986

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WARREN E. BURGER was born in St. Paul, Minnesota, on September 17, 1907. After pre-legal studies at the University of Minnesota in high classes, he earned a law degree in 1931 from the St. Paul College of Law (now William Mitchell College of Law) by attending four years of night classes while working in the accounting department of a life insurance company. He was appointed to the faculty of his law school upon graduation and remained on the adjunct faculty until 1946. Burger practiced with a St. Paul law firm from 1931 to 1953. In 1953, President Dwight D. Eisenhower appointed Burger Assistant Attorney General of the United States, Chief of the Civil Division of the Department of Justice. In 1955, President Eisenhower appointed him to the United States Court of Appeals for the District of Columbia Circuit, where he served until 1969. President Richard M. Nixon nominated Burger Chief Justice of the United States on May 22, 1969. The Senate confirmed the appointment on June 9, 1969, and he took office on June 23, 1969. In July 1985, President Ronald Reagan appointed Burger Chairman of the Commission on the Bicentennial of the United States Constitution. As Chief Justice he served as Chairman of the Judicial Conference of the United States and as Chairman of the Federal Judicial Center from 1969 to 1986. Burger retired from the Court on September 26, 1986, after seventeen years of service, and continued to direct the Commission on the Bicentennial of the United States Constitution from 1986 to 1992.

(16) Chief Justice William Hubbs Rehnquist, 1986-2005

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WILLIAM HUBBS REHNQUIST was born in Milwaukee, Wisconsin, October 1, 1924. He served in the Army Air Corps during World War II as a weather observer in North Africa. Following the war, he attended college on the GI Bill, earning both a B.A. (Phi Beta Kappa) and M.A. in political science at Stanford University in 1948. Rehnquist received a second M.A., in government, from Harvard two years later. He then entered Stanford Law School, where he graduated first in his class in 1952. (The student who ranked third was Sandra Day, who later joined him on the Supreme Court.) In 1952, Rehnquist clerked for Justice Robert Jackson. Rehnquist served as assistant attorney general for the Justice Department’s Office of Legal Counsel under the Nixon Administration. Rehnquist served on the Supreme Court for 33 years, first as an Associate Justice from 1972 to 1986, and then as the 16th Chief Justice of the United States from 1986 until his death in 2005.

(17) Chief Justice John G. Roberts, Jr., 2005 – Present

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JOHN G. ROBERTS, Jr. was born in Buffalo, New York, January 27, 1955. He married Jane Marie Sullivan in 1996 and they have two children – Josephine and Jack. He received an A.B. from Harvard College in 1976 and a J.D. from Harvard Law School in 1979. He served as a law clerk for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit from 1979–1980 and as a law clerk for then-Associate Justice William H. Rehnquist of the Supreme Court of the United States during the 1980 Term. He was Special Assistant to the Attorney General, U.S. Department of Justice from 1981–1982, Associate Counsel to President Ronald Reagan, White House Counsel’s Office from 1982–1986, and Principal Deputy Solicitor General, U.S. Department of Justice from 1989–1993. From 1986–1989 and 1993–2003, he practiced law in Washington, D.C. He was appointed to the United States Court of Appeals for the District of Columbia Circuit in 2003. President George W. Bush nominated him as Chief Justice of the United States, and he took his seat September 29, 2005.

The American Revolution: The Patriotic Renunciation of Tea and the Switch to Coffee

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John Adams wrote to Abigail Adams on July 6, 1774,

I believe I forgot to tell you one Anecdote: When I first came to this House it was late in the Afternoon, and I had ridden 35 miles at least. “Madam” said I to Mrs. Huston, “is it lawfull for a weary Traveller to refresh himself with a Dish of Tea provided it has been honestly smuggled, or paid no Duties?”

“No sir, said she, we have renounced all Tea in this Place. I cant make Tea, but He make you Coffee.” Accordingly I have drank Coffee every Afternoon since, and have borne it very well. Tea must be universally renounced. I must be weaned, and the sooner, the better.

So why the transition to coffee?

In 1773, the British Parliament passed the Tea Act, a bill designed to save the faltering East India Company. Many colonists viewed the act as yet another example of tyrannical taxation, because it left an earlier duty on tea entering the colonies in place, while removing the duty on tea entering England.

In December 1773, Patriots boarded British ships carrying East Indian Company tea dressed as Mohawk Indians and dumped the tea chests aboard, valued then at £18,000 (nearly $1 million in today’s money) into the water. This became known as the Boston Tea Party. [Interestingly, the Boston Tea party was planned in a coffee house called the Green Dragon].

Outraged by the destruction of British property in Boston and elsewhere, Parliament enacted the Coercive (or “Intolerable”) Acts in 1774. These acts established formal British military rule in Massachusetts, closed the port of Boston to merchant shipping, immunized British officials from prosecution, and required colonists to quarter British troops. This, in turn, leads the colonists to call the first Continental Congress to consider unified colonial resistance to British oppression.

Once imported tea became politicized as a drink fit only for loyalists to the Crown, it dropped out of fashion. Tea drinkers were criticized by their neighbors, and a new age of coffee drinking dawned. Grown in the New World, coffee did not represent British economic interests. It was hot and highly caffeinated, and it retained much of its popularity even after the Revolution, when tea drinking no longer made one a pariah.

According to historian Libby O’Connell

Coffee would completely eclipse hot tea in 1865, when Union soldiers trooped home from the Civil War. The U.S. government had issued coffee as part of their standard rations, and returning veterans kept right on drinking it. By the 20th century, people drank coffee everywhere in the United States.

 

American Antiquarian Society Online Resource: The News Media and the Making of America, 1730-1865

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The role of the media in this year’s presidential elect cycle has received quite a bit of attention. For educators and citizens who are interested in exploring how the news and public information have influenced the public and private lives of the American people from 1730 through the Civil War, I recommend this great free digital resource from the American Antiquarian Society.

The sites covers the following content areas –

(1) News in Colonial America

(2) News in the Age of Revolution

(3) News in Antebellum America

(4) News and the Civil War

 

 

When Congress Overrides a Presidential Veto: A Brief History

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The Senate just voted to override President Obama’s veto of a law that would allow 9/11 survivors to sue Saudi Arabia (the Justice Against Sponsors of Terrorism Act). The House is poised to override his veto later this week, as well. [Update: The House voted today to override President Obama’s veto].

This is the first veto override of President Obama’s two terms in office, and is a good time to review Congress’s power to override presidential vetoes under the United States Constitution. Per the terms of the Constitution, President’s veto can be overridden by two-thirds of both houses of Congress. The super-majority requirement makes veto overrides relatively rare. A Congressional Research Service Report found that prior to 1969, Congress overrode approximately 1 of every 18 (5.7%) regular vetoes. Since 1969, Congress has voted to override about 1 out of 5 (18.3%) regular vetoes.

This useful chart from the same CRS report shows the number of vetoes overridden from 1789 through the presidency of George W. Bush (note that the report was published in April 2004, and does not reflect that Congress voted to override 4 of President Bush’s vetoes prior to the end of his second term).

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Article I, § 7 of the United States Constitution reads in relevant part –

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sunday excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. (emphasis added)

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. (emphasis added).

In Federalist No. 69, Alexander Hamilton discussed the power of Congress to override presidential vetoes –

The President of the United States is to have power to return a bill, which shall have passed the two branches of the Legislature, for re-consideration; but the bill so returned is to become a law, if upon that re-consideration it be approved by two thirds of both houses. The King of Great Britain, on his part, has an absolute negative upon the acts of the two houses of parliament. The disuse of that power for a considerable time past, does not affect the reality of its existence; and is to be ascribed wholly to the crown’s having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. The qualified negative of the President differs widely from this absolute negative of the British sovereign; and tallies exactly with the revisionary authority of the Council of revision of this State, of which the Governor is a constituent part. In this respect, the power of the President would exceed that of the Governor of New-York; because the former would possess singly what the latter shares with the Chancellor and Judges: But it would be precisely the same with that of the Governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the Convention have copied.

And in Federalist No. 72, Hamilton went on to say

But the Convention have pursued a mean in this business; which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the executive the qualified negative already described. This is a power, which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single veto, might not scruple to return it for re-consideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct, in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved, by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason it may in practice be found more effectual. It is to be hoped that it will not often happen, that improper views will govern so large a proportion as two-thirds of both branches of the Legislature at the same time; and this too in defiance of the counterpoising weight of the executive. It is at any rate far less probable, that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. A power of this nature, in the executive, will often have a silent and unperceived though forcible operation. When men engaged in unjustifiable pursuits are aware, that obstructions may come from a quarter which they cannot controul, they will often be restrained, by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared.

Joseph Story in his Commentaries on the Constitution explained how the Constitutional Convention delegates viewed this legislative check upon the executive’s veto power –

The other point of inquiry is, as to the extent of the legislative check upon the negative of the executive. It has been seen, that it was originally proposed, that a concurrence of two thirds of each house should be required; that this was subsequently altered to three fourths; and was finally brought back again to the original number. One reason against the three fourths seems to have been, that it would afford little security for any effectual exercise of the power. The larger the number required to overrule the executive negative, the more easy it would be for him to exert a silent and secret influence to detach the requisite number in order to carry his object. Another reason was, that even, supposing no such influence to be exerted, still, in a great variety of cases of a political nature, and especially such, as touched local or sectional interests, the pride or the power of states, it would be easy to defeat the most salutary measures, if a combination of a few states could produce such a result. And the executive himself might, from his local attachments or sectional feelings, partake of this common bias. In addition to this, the departure from the general rule, of the right of a majority to govern, ought not to be allowed but upon the most urgent occasions; and an expression of opinion by two thirds of both houses in favour of a measure certainly afforded all the just securities, which any wise, or prudent people ought to demand in the ordinary course of legislation; for all laws thus passed might, at any time, be repealed at the mere will of the majority. It was also no small recommendation of the lesser number, that it offered fewer inducements to improper combinations, either of the great states, or the small states, to accomplish particular objects. There could be but one of two rules adopted in all governments, either, that the majority should govern, or the minority should govern. The president might be chosen by a bare majority of electoral votes, and this majority might be by the combination of a few large states, and by a minority of the whole people. Under such circumstances, if a vote of three fourths were required to pass a law, the voice of two thirds of the states and two thirds of the people might be permanently disregarded during a whole administration. The case put may seem strong; but it is not stronger, than the supposition, that two thirds of both houses would be found ready to betray the solid interests of their constituents by the passage of injurious or unconstitutional laws. The provision, therefore, as it stands, affords all reasonable security; and pressed farther, it would endanger the very objects, for which it is introduced into the constitution.

The first congressional override of a presidential veto occurred on March 3, 1845, when the 28th Congress voted to override President John Tyler’s veto of an appropriations bill.

The Congressional Research Service describes congressional procedure for reconsidering vetoed legislation –

Congressional action on a vetoed measure begins when the President returns the bill to the chamber of origin along with his objections in the form of a veto message. Once the vetoed legislation has been received by the originating chamber, that house is constitutionally required to “reconsider” the vetoed bill. The Constitution is silent, however, on the meaning of “reconsideration.” Procedure and tradition govern the treatment of vetoed bills returned by the President. On receipt of the vetoed bill, the President’s message is read into the journal of the receiving house. After entering the message into the journal, the House of Representatives or the Senate complies with the constitutional requirement to “reconsider” by laying the measure on the table (essentially stopping further action on it), referring the bill to committee, postponing consideration to a certain day, or immediately voting on reconsideration (vote on override). Action by both the House and the Senate is required to override.5 A two-thirds majority vote by Members present (provided there is a quorum) is required to override a presidential veto. When one house fails to override, the other house will not attempt to override, even if the votes are present to succeed. Action by the Senate or the House of Representatives on a veto may be taken at any time during a Congress in which the veto is received.

“While Reason Retains Her Rule”: John Jay’s Words of Wisdom Strike A Chord in 2016

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In 1788, John Jay published his “Address to the People of the State of New York on the Subject of the Constitution.”

I’m including below passages from his remarks that I believe should be read and reflected on this election cycle. I submit them to you without comment below.

While reason retains her rule, while men are as ready to receive as to give advice, and as willing to be convinced themselves as to convince others, there are few political evils from which a free and enlightened people cannot deliver themselves. It is unquestionably true that the great body of the people love their country, and with it prosperity; and this observation is particularly applicable to the people of a free country, for they have more and stronger reasons for loving it than others. It is not, therefore, to vicious motives that the unhappy divisions which sometime prevail among them are to be imputed; the people at large always mean well, and although they may on certain occasions be misled by the counsels or injured by the efforts of the few who expect more advantage from the wreck than from the preservation of national prosperity, yet the motives of these few are by no means to be confounded with those of the community in general.

That such seeds of discord and danger have been disseminated and begin to take root in America as, unless eradicated, will soon poison our gardens and our fields, is a truth much to be lamented; and the more so as their growth rapidly increases while we are wasting the season in honestly but imprudently disputing, not whether they shall be pulled up, but by whom, in what manner, and with what instruments the work shall be done.

. . .

Let us all be mindful that the cause of freedom depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for, if the event should prove that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems which, however charming in theory and prospect, are not reducible to practice? If the people of our nation, instead of consenting to be governed by laws of their own making and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men everywhere will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in governments which, though less friendly to liberty, afford more peace and security.

Receive this address with the same candour with which it is written; and may the spirit of wisdom and patriotism direct and distinguish your councils and your conduct.

In Honor of National Voter Registration Day: A Brief History of Voting Rights in America

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In honor of National Voter Registration Day, and in an effort to encourage citizens to not only register to vote ahead of state deadlines but also to vote in this year’s election on Tuesday, November 8, I thought I’d provide some general information here about the history of voting rights in this country.

Let’s begin at the beginning. . .

Voting in Colonial America

The 13 colonies imposed land/property or tax-paying requirements on voters. In their view, only these people were sufficiently committed to their communities to vote.

Many colonies also imposed religious tests on voting, barring Catholics and Jews, for example, from participating in elections. These religious tests would later be repealed.

The American Revolution

The American Revolution was fought, in part, over the issues of voting and representation in Parliament. American colonists rejected the notion of “virtual representation” – the idea that English members of Parliament could represent the interests of the colonists in North America, even though the colonists had no say in electing those representatives. Hence the language in the Declaration of Independence: “Governments are instituted among Men, deriving their just powers from the consent of the governed[.]” (emphasis added).

The Abolition of Property Requirements in the 19th Century

The 19th century saw the abolition of property requirements for voting and thus began a new era of universal white manhood suffrage.

Note that during this time, only a few states (like Maine, Massachusetts, Vermont, and others) allowed African Americans to vote without significant restrictions. In most other places, African Americans – whether slave or free –  could not vote.

Also during this period, women property holders in New Jersey, who had once had the right to vote, now lost it.

The Fifteenth Amendment

The Fifteenth Amendment to the Constitution granted African American men the right to vote. It declared the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

Although ratified on February 3, 1870, the promise of the 15th Amendment would not be fully realized for almost a century. Through the use of poll taxes, literacy tests, intimidation, violence, and other Jim Crow-era means, Southern states effectively disenfranchised African Americans during this period. It was not until the passage of the Voting Rights Act of 1965 that a majority of African Americans in the South would be registered to vote.

 

The Nineteenth Amendment

In 1776, Abigail Adams wrote to her husband John Adams: “I long to hear that you have declared an independency. And, by the way, in the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember, all men would be tyrants if they could. If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.”

John Adams responded to his wife’s letter (in a similarly teasing tone) and declared that men were not really the “masters” of women but were “subject to the despotism of the petticoat.” Adams and his contemporaries, like those who preceded them, failed to make codifying women’s rights a priority.

Although the Seneca Falls women’s rights convention of 1848 adopted a specific call for women’s suffrage, it would take an additional 72 years of lobbying and protesting for most women to gain the right to vote.  The amendment was first introduced in Congress in 1878, but was not ratified until August 18, 1920.

The Nineteenth Amendment reads:

“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.”

The Voting Rights Act of 1965

The Voting Rights Act of 1965 was an act to enforce the 15th amendment to the United States Constitution, and was signed into law 95 years after that amendment was ratified. In that 95 year period, African Americans in the South faced near insurmountable obstacles to voting, including, literacy tests, poll taxes, a variety of bureaucratic restrictions, intimidation, physical violence and economic reprisal. As a result, there were few registered black voters in the South.

Political protests and reactionary violence in 1964 brought renewed attention to the issue of voting rights for African Americans. In particular, the murder of voting-rights activists in Mississippi and attacks on peaceful marchers in Selma, Alabama, allowed President Lyndon Baines Johnson and Congress to pass the voting rights bill on August 5, 1965.

The legislation outlawed literacy tests and provided for the appointment of federal examiners to help register qualified citizens to vote. By the end of 1965, 250,000 new black voters had been registered, one-third by Federal examiners. By the end of 1966, only 4 out of the 13 southern states had fewer than 50 percent of African Americans registered to vote.

The 24th Amendment and the Abolition of the Poll Tax

At the time of the passage of the 24th Amendment by Congress in 1962, five states (Virginia, Alabama, Mississippi, Arkansas and Texas) maintained poll taxes. which disproportionately impacted poor African American voters. The Amendment was ratified in 1964 and reads:

“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax. The Congress shall have power to enforce this article by appropriate legislation.”

The 26th Amendment: Old Enough to Fight, Old Enough to Vote

The debate over lowering the voting age from 21 to 18 began during World War II and intensified during the Vietnam War, when young men who could not vote and therefore influence war policy were being conscripted to fight in the Vietnam War.

In 1970, Congress passed the Voting Rights Acts Amendments, which sought to lower the minimum age of voters in both state and federal elections from 21 to 18. In response, the Supreme Court ruled in the case of Oregon v. Mitchell (1970) that Congress had the right to regulate the minimum voting age in federal, but not state and local, elections.

In response to this case and mounting political pressure, Congress passed the 26th Amendment in March 1971. The states quickly ratified the Amendment, which went into effect in July of that year. The 26th Amendment reads:

“The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age. The Congress shall have the power to enforce this article by appropriate legislation.”

The fight over voting rights continues

The Voting Rights Act of 1965 was amended and reauthorized in 1970, 1975, 1982, 1992 and 2006. In 2013, the United States Supreme Court in Shelby County v. Holder

ruled 5-4 that Section 4 of the Voting Rights Act of 1965 was unconstitutional. Section 4 lays out the formulas for how the Justice Department enforces Section 5 of the Voting Rights Act. Section 5 requires that the states identified with a history of discrimination  obtain approval from the federal government before they can make changes to their election law. Section 4 formulas as of 2013 mandated that “Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia in their entirety; and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota” ask for preclearance for electoral law changes. After Shelby County v. Holder, these states are free to make changes to election law or district maps without approval from the Justice Department.

Without Section 4, the Justice Department has fewer legal resources for challenging election law it finds discriminatory.

The Supreme Court found Section 4 unconstitutional because of the age of the coverage formulas. The Supreme Court’s opinion notes: “voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, ‘the Act imposes current burdens and must be justified by current needs.’”

In other words, the Supreme Court is telling Congress, “if you want to keep Section 5, you better make new rules.”

Since the Supreme Court’s decision, Congress has yet to amend the Voting Rights Act in light of the Court’s concerns. Furthermore, many states have enacted laws that shift early voting and voter registration times or impose new voter-ID requirements. Conservatives argue that these laws are designed to counter voter fraud or help shrink stage budgets. Liberals argue that the laws are designed to disenfranchise college students and African Americans, who typically vote in favor of Democratic candidates. There is active litigation over these statutes across the country.

Similarly, there is an ongoing debate over whether convicted felons who have served their time in prison should be allowed to vote. A handful of states bar felons from voting unless they successfully petition to have their voting rights restored.

 

227 years ago, the U.S. Senate Confirmed the First U.S. Supreme Court Justices

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On September 26, 1789, the U.S. Senate voted to confirm  John Jay, John Rutledge, William Cushing, John Blair, Robert Harrison, and James Wilson as the first justices of the United States Supreme Court.

John Jay was confirmed as the nation’s first Chief Justice. Jay served as a delegated to both the First and Second Continental Congresses, and was elected president of the Continental Congress in 1778. He also contributed five essays to The Federalist (now known as The Federalist Papers), and was a stronger supporter of the federal Constitution of 1787. After serving as Chief Justice for five years, Jay resigned from the Supreme Court on June 29, 1795, and became Governor of New York. He declined a second appointment as Chief Justice in 1800, and President John Adams then nominated John Marshall for the position.

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John Rutledge  was elected to the South Carolina Commons House of Assembly. In 1764, he was appointed Attorney General of South Carolina by the King’s Governor and served for ten months. Rutledge served as the youngest delegate to the Stamp Act Congress of 1765.He was a member South Carolina delegation to the Constitutional Convention in 1787 and served as a member of the South Carolina Ratification Convention the following year. After one year on the Supreme Court, Rutledge resigned in 1791 to become Chief Justice of South Carolina’s highest court. On August 12, 1795, President George Washington nominated Rutledge Chief Justice of the United States. He served in that position as a recess appointee for four months, but the Senate refused to confirm him.

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William Cushing served as Chief Justice of the Massachusetts Supreme Judicial Court from 1780 to 1789. He strongly supported ratification of the U.S. Constitution and served as Vice Chairman of the Massachusetts Ratification Convention. Cushing served on the Court for 20 years.

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John Blair began his public service in 1766 as a member of the Virginia House of Burgesses. In 1770, he resigned from the House to become Clerk of the Governor’s Council. Blair was a delegate to the Virginia Convention of 1776, which drafted the State Constitution. Blair became a Judge of the Virginia General Court in 1777 and was elevated to Chief Judge in 1779. From 1780 to 1789, he served as a Judge of the First Virginia Court of Appeals. Blair was a delegate to the Federal Constitutional Convention of 1787 and was one of three Virginia delegates to sign the Constitution. He was also a delegate to the Virginia Ratification Convention of 1788. He served on the Court for only 5 years, and resigned due to the rigors of circuit riding and ill health.

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Robert Harrison served as the Chief Justice of the General Court of Maryland from 1781 to 1789.Harrison, ultimately, declined to serve as an associate justice, citing health reasons. The seat eventually went to James Iredell.

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James Wilson was elected a delegate to the First Continental Congress in 1775 and was a signer of the Declaration of Independence. He also served as a delegate to the Second Continental Congress. As a delegate to the Constitutional Convention in Philadelphia in 1787, Wilson was a member of the committee that produced the first draft of the Constitution. He signed the finished document on September 17, 1787, and later served as a delegate to the Pennsylvania Ratification Convention. He served on the Court for eight years.

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(Biographical information of the justices was provided by the Supreme Court Historical Society).

Presidential Debate Primer: Check out Washington Times Special Section on the President and the Constitution

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In honor of Constitution Day this year, I took the lead on behalf of the National Constitutional Literacy Campaign on the publication of a Washington Times special section on the President and the Constitution. The special report includes articles from Senators Patrick Leahy and Mike Lee, among many others.

On the eve of tomorrow night’s presidential debate, I hope folks will consider reading, reflecting, and learning from the public officials, scholars and civic education advocates who submitted articles on this timely topic. It’s a great presidential debate primer.

The full special section is available in PDF form here.

Articles include:

Section 1: Citizens, Civic Knowledge, and Presidential Elections

(1) Julie Silverbrook, Why A Call for Civic Education and Constitutional Literacy?

(2) Julie Silverbrook, Student Competitions Spark Optimism, Civic Involvement

(3) Charles Quigley, Effective Civic Education Produces Informed Voters

(4) Dr. Michael Poliakoff, Civic Illiteracy and Civic Disempowerment

(5) Jeff Hymas, A Democratic or Republican Election? 

(6) Kyle Kondik, ‘Tyranny of the Swing States’?

(7) Meg Heubeck and Gerard Ferri, Get in the Game: Empowering America’s Next Generation to Vote

Section 2: Congress and the President

(1) Congressman George Nethercutt, Founders Intended ‘Tension’ In Co-Equal Branches

(2) Dr. Robert J. Spitzer, Political Gridlock, Past and Present

(3) Senator Patrick Leahy, Constitution Day: Protection Our Democracy

(4) Senator Mike Lee, The Battle to ‘Keep’ the American Republic

(5) Dr. Matthew Spalding, Congress and the New Imperial Presidency

Section 3: The Courts and the President

(1) Elizabeth Wydra, The President, the Constitution, and the Supreme Court

(2) Dr. Louis Fisher, How Courts Expand Presidential Power Beyond Constitutional Limits

(3) Ken Gormley, Presidents and the Supreme Court: Public Battles and Quiet Respect

Section 4: The Media and the President

(1) Julie Silverbrook, The Constitution on the Campaign Trail in 2016

(2) David Keene, the ‘Genius’ of the Constitution 

(3) Janine Turner and Andrew Langer, Is the Media Responsible for the Too-Power Presidency?

(4) Shoshana Weissman, How Social Media Gives Public Opinion Wings

Section 5: The Expansion of Presidential Authority

(1) Tim Donner, The Ever-Expanding Power of the Presidency

(2) Josh Blackman, Unteaching Professor Obama’s Constitutional Lessons

(3) Dr. Jason Stevens, Calvin Coolidge and the ‘two minds’ of the American Presidency

(4) Scott Michelman, Upholding the Right ‘To Be Let Alone’

227 Years Ago Congress Approved the Bill of Rights

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On September 25, 1789, Congress approved 12 amendments to the United States Constitution and sent them to the states for ratification. The 10 amendments that were ultimately ratified (on December 15, 1791) became known as the Bill of Rights.

Here are the 12 amendments sent to the states on September 25. You might be surprised by the issues that ranked first and second above our now First Amendment. The second amendment proposed in 1789, regarding congressional pay, was ratified nearly 203 years later in 1992 and is now the 27th amendment to the U.S. Constitution.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the benificent ends of its institution
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; vizt.
ARTICLES in addition to, and amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

ARTICLE THE FIRST. After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

ARTICLE THE SECOND. No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

ARTICLE THE THIRD. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

ARTICLE THE FOURTH. A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

ARTICLE THE FIFTH. No Soldier shall, in time of peace be quartered in any House, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

ARTICLE THE SIXTH. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

ARTICLE THE SEVENTH. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of {a} Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;nor shall private property be taken for public use, without just compensation.

ARTICLE THE EIGHTH. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

ARTICLE THE NINTH. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

ARTICLE THE TENTH. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

ARTICLE THE ELEVENTH. The enumeration the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

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

 

You can explore the legislative history of the Bill of Rights in the ConSource digital library.