This is a special Opinion to the Mirror by Charles Landis.
The most satisfying reward in studying our history is that it helps us to better understand our past and how this relates to current events; especially in these times when the nation is as divided as when resolution was the Civil War. Then, as now, the Democrat Party would not accept the election of a Republican president, Abraham Lincoln, and Lincoln would not accept disunion. Today, the Democrat Party will not accept the election of another Republican President, Donald Trump, believes his election was not legitimate, and seeks removal from office by impeachment.
The division over Trump’s nomination of Brett Kavanaugh to the Supreme Court has roots that extend back to Marbury v Madison which is considered THE landmark decision of the Supreme Court ( judicial review) and firmly established the Court as a co-equal branch of government; and Brown v Board of Education (judicial activism and affirmative action).
The most contested election in our history, however, was Thomas Jefferson’s election in 1800 when he defeated John Adams’ bid for a second term; because neither candidate received a majority of electoral votes the decision was referred to the House of Representatives where it took 36 ballots before Jefferson was elected.
Adams, a Federalist, appointed John Marshall (another fervent Federalist) Chief Justice during his last year in office (1800-1801). Out of fear of domination by a Jefferson’s Republican/Democratic coalition control of both the executive and legislative branches, Adams endeavored to seize control of the Judicial branch before Jefferson took office. After appointment of Marshall, he endeavored, unsuccessfully, to persuade Congress to reduce the number of justices if any died or resigned during the probable tenure of Jefferson; in such a manner that Jefferson would not be able to appoint Supreme Court justices. He also appointed several Federalist judges to a newly created circuit court in the District of Columbia.
James Madison, Sect. of State, refused to deliver these commissions and one of those appointed, (William Marbury) sued arguing his appointment was legally owed to him and Mrashall concurred.
However, Marahall also ruled that the Judiciary Act of 1789, under which the appointments were mad, was unconstitutional. This was the first time the Supreme Court ruled an act of Congress unconstitutional and firmly established the Court as co-equal to executive and legislative branches. Note. Marshall quoted Federalist 78 (Hamilton) in opinion.
The Civil War was over racial and social equality as are the issues that divide today. Neither that War, or the 13th, 14th, and 15th Amendments settled the issues of racial and social inequality. Supreme Court decision in Plessy v Ferguson (1896), in which Court ruled separate but equal (segregation) was constitutional, is considered, next to Dred Scott, which decided slaves were property, not citizens, are agreed by historians and constitutional scholars alike the worst decisions the Court has ever made.
These issues were not conclusively addressed until the Carnegie Foundation granted $300,000,000 to Gunnar Myrdal to study why the Reconstruction amendments did not result in racial and social equality. The study was completed nearly three quarters of a century ago (1944).
While Gunnar Myrdal is not well known, he is ranked with De Tocqueville (Democracy in America), Tom Paine (Common Sense), and Harriet Beecher Stowe (Uncle Tom’s Cabin) as a most influential commentators in American history. In “An American Dilemma: The Negro Problem and Modern American Democracy”, Myrdal statistically “proved” that America was too deeply racist for Congressional action to ever right the wrongs against black people. The democratic (legislative) process was inadequate to guarantee the equal protection guarantees of the Reconstruction Amendments. Ie. the issue of inequality and segregated public schools.
In Brown v Board of Education (1954) the Supreme Court unanimously decided segregated schools violated the Fourteenth Amendment. Until Brown, in the Southern 9Democrat) states it was believed there was no violation because, at time of ratification, segregation existed throughout the United States, Also, in Plessy v Ferguson (1896) the Court ruled separate but equal was constitutional. Note. Court never explicitly overruled itself but simply allowed Brown to supersede.
Historians and constitutional scholars agree the Brown case was before the Court because the action could not be obtained by Congress…the failure of the legislative branch. The Court, therefore, vested the federal courts with the authority to supervise “with all deliberate speed”. In Brown, the Court not only made the law but enforced it by judicial supervision. Thus, hundreds of school districts came under federal court supervision and school districts were run by judges in distant Washington, not by locally democratically elected school boards. The Court has likewise engaged in gerrymandering cases.
The Brown decision was reinforced by the 1964 Civil Rights Act which was only made possible by President Johnson persuading Republican Minority Leader, Senator Everett Dirksen, to support the Act because Southern Democrats were strongly opposed. Dirksen, however, insisted on an amendment whereas racial quotas were forbidden. Thus the intention of the Brown decision and Myrdal social engineering for “affirmative action” would be thwarted. However, the Supreme Court, in 1971, interpreted the 1964 Act to permit Affirmative Action. Note. The Republicans seized opportunity to split the Democrat party.
There are many other lessons our history teaches us. Andrew Jackson won a plurality of both the electoral and popular vote in 1824 but the House of Representatives elected John Quincy Adams by what is considered “the corrupt bargain” between Adams and Henry Clay who became Adams’ Secty. of State. Andrew Johnson (in1868) came within one vote of the 2/3 majority needed for being impeached, but subsequently the statute under which he was prosecuted was declared unconstitutional. Lincoln, for his first term, was elected with only 40% of the popular vote.
The division we now have has resulted in a legislative branch with historically low approval ratting and is widely regarded as dysfunctional in addressing major legislative issues; and an executive branch with administration by executive order and the bureaucracy of the deep state. The 5/4 decisions of the Supreme Court do not now show prevailing left or right orientation with Roberts as Chief Justice but the appointment of Kavanaugh strongly suggests more 6/3 decisions. If another vacancy occurs while Trump is in office and Republicans continue control of the Senate there could well be a 7/2 Court.
While media endeavors to persuade the battle over nominations to the Supreme Court will be over issues related to First, Second, and Twelfth (Electoral College) Amendments, and precedents such as Roe v Wade, history suggests the legacy of a Trump court will be a more consequential battle over the deep/administrative state.
The important lesson of our history is that however much we may be dismayed by one election or court decision or another. The wisdom of our founding fathers and the establishment of a constitutional republic has and always will serve us well. As Franklin said, “ we are a republic… if we can keep it”.
C. Augustus Landis