Tuesday, May 17, 2016

The Unwritten Constitution and Presidential Authority

Gerard N. Magliocca

Inspired by Sandy's posts, I want to highlight another aspect of the 1800 presidential election that is especially relevant as a point of comparison to 2016.  For most of the nineteenth century, presidential candidates did not openly campaign for that office--it was seen as undignified. This was a custom that basically ended in the great clashes between William Jennings Bryan and William McKinley in 1896 and 1900, but there was considerable merit in that practice. The rise of a demagogue was much more difficult if that person could not personally appeal to voters, and presidential authority was far more circumscribed because those leaders were dependent on surrogates to get elected (or reelected).

Of course, we now know that these candidates of old were chumps, as they could have just invented an alter ego like "John Barron" and campaigned for the Presidency through imaginary surrogates.


"rise of a demagogue was much more difficult if that person could not personally appeal to voters"

eh -- a movement can still be made around the person and personally campaigning has its own benefits. Plus, there is behind the scenes goings on that arguably is worse for not being open. See, e.g., Jefferson's power over the Congress.

So, the positives only go so far.


For those impatient, Veep provides a tied electoral vote scenario.

There are many stories about the 1800 presidential election. Check out Bruce Ackerman and David Fontana's lengthy essay "How Jefferson Counted Himself In," in the March 2004 issue of The Atlantic, available at:

The authors focus upon the provisions of the Constitution as then in effect and the role of the VP with tge Senate in the tabulation of electoral votes. Joe may have been alluding to such as this essay.

By the Bybee [expletives deleted], watching the Decades channel today I was reminded that it was on May 17, 1954 that SCOTUS came down with its unanimous decision in Brown v. Bd. of Educ.

My reference to "Veep" is to the HBO series.


I wonder how many of the current generation of originalist and Federalist Society members are aware of the "contribution" that Brown v. Bd. of Educ. furnished to those movements back in the 1970s, 1980s.

The link is interesting.

The sitting vice president both presided over the electoral vote count and were the winning candidate in 1796 and 1800. This happened in other times too, including 2000. It is sometimes noted that the Constitution leaves open the constitutional stupidity of the vice president presiding his/her own impeachment (a special rule is present for President -- Chief Justice presides -- so the oversight is a bit weird).

The basic "can't try one's own case" principle perhaps was seen as so basic as to not be needed to be said. But, here a self-interested person presides over the count. Not quite as bad as each state having one vote when the matter goes to the House. Still, not a great system. The other thing cited was that even though it seems like one or more states did not strictly follow the form required, their votes were counted. Jefferson accepted this when it went for and against him.

There were problems in 1876 too but how that was handled did not as directly involve the sitting vice president though it did bring in the Supreme Court since some justices were used on the panel that helped settle the election.

Constitutions are not typically written by computer programmers or logicians, deploying state tables and Karnaugh mapping, so it's hardly surprising they miss things like that.

Yes, or use open-ended and at times conflicting language that requires debatable judgment calls based on modern day understandings.

I'll gladly admit that last is present. It's merely vastly exaggerated by people who don't like the parts which don't actually require judgment calls.

As I like to say, if ambiguity empowers you, you'll find everything ambiguous.

Exaggeration goes around including -- vastly -- those who use reasonable debates to mean the other side isn't just wrong, but simply ignoring the text for not "liking" it. And, this isn't an issue for one specific side either. To beat the drum again.

The Decades channel today reports that that it was on May 18 in 1896 that the Supreme Court handed down its decision in Plessy v. Ferguson (7-1). The separate but equal in riding trains was applied to other public accommodations until Brown v. Bd. of Educ. (9-0, May 17, 1954) came along to push the civil rights movement beyond public education to other public accommodations. This movement contributed to the originalism and Federalist Society movements, seemingly in tandem, during the '70s, 80s.

If Brett is any criteria, can you imagine a constitution " ... written by computer programmers or logicians, ... "?

Back at the time of the 1787 Constitutional Convention there were no computer programmers. The Convention did include as a delegate a surveyor, George Washington. A surveyor is sort of like a computer programmer but works outdoors. I don't know the extent that there were logicians in America back then. Many of the delegates were lawyers who liked to think they used logic in that profession.

The 18th Century was the Age of Reason, so logic was a big thing, including when trying to formulate natural law (see, DOI) and political philosophy.

Logic from human did lead to things like showing how slavery was logical and natural. See, e.g., Aristotle.

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