Book Review
The More Things Change:
Centennial Crisis,
The Disputed Election of 1876
by William H. Rehnquist (Knopf, 2004)
reviewed by Richard A. Forsten,
Esquire
Politics were different in the mid to late nineteenth
century, especially presidential politics. In an age with no
radio, no TV, and no internet, presidential campaigns were conducted
in a completely different manner. A party’s candidate
wouldn’t be selected until the party’s national
convention, and even then the process could be a lengthy, bare-knuckled
affair. Moreover, once nominated, the candidates themselves
generally did not campaign, instead relying on surrogates and
political figures in each of the various states to do the campaigning
on their behalf. Election returns dribbled in much slower as
well, as the telegraph was the fastest means of communication
at the time. All of this may seem quaint, but 1876 also saw
the nation’s most serious presidential succession crisis.
Late into the election night in November, 1876,
it appeared as though Democrat Samuel J. Tilden would be elected
president to succeed Republican Ulysses S. Grant. The popular
vote was clearly in favor of Tilden, but the final returns from
Florida, Louisiana and South Carolina were in doubt, and if
the Republican candidate, Rutherford B. Hayes, could carry those
states, then Hayes would be the next president by one electoral
vote. Each of those states did, in fact, after various challenges
and other questionable goings on, certify that Hayes had won
and sent electoral votes in favor of Hayes. Democrats in each
state, though, nevertheless sent their own “certified”
electoral votes to the United States Senate as well (under the
Constitution, the President of the Senate receives the electoral
votes from each state). In addition, there was a question concerning
one of the electors from Oregon, such that Oregon also sent
two vote tallies to the Senate, one with all three votes in
favor of Hayes, and the other 2-1 in favor of Hayes. At that
point, the real problems began.
Although the Constitution directs that the certified
vote of each state’s electors is to be sent to the President
of the Senate, it is not entirely clear who actually does the
counting. The votes are opened in the presence of the House
and Senate, and the votes “shall then be counted.”
Grant’s vice president had died in office (no successor
had been appointed) and so the presiding officer of the Senate
was its president pro-tem, Thomas W. Ferry, a republican senator
from Michigan. Republicans argued that decisions of the president
pro-tem as to which set of returns from the four disputed states
should be counted were final. Naturally, democrats took a different
view. Moreover, the Senate was controlled by republicans, the
House by democrats. If no candidate received a majority of the
votes cast, then the election would be thrown into the House,
and Tilden would be elected. One real possibility was that the
Thomas Ferry, as President of the Senate, would count the votes
in favor of Hayes, but the House would nevertheless dispute
that result and claim to elect Tilden instead. Grant indicated
that one way or another he expected his successor to be sworn
in on March 4, 1877 (inauguration day was moved to January by
the Twentieth Amendment).
So it was that the House and Senate ultimately
created a fifteen member commission to resolve the returns from
the four disputed states, with five members from the House (3
D’s, 2 R’s), five members from the Senate (3 R’s,
2 D’s), and five justices from the Supreme Court (3 republican-appointed,
2 democrat-appointed). By March 2, the vote count was complete.
With respect to each of the disputed states, the electoral commission
had sided with Hayes in a straight party vote of 8-7. Hayes
was the next president.
There is, of course, much more to this tale, and
it is all marvelously told by Supreme Court Chief Justice William
H. Rehnquist in his new book, Centennial Crisis, The Disputed
Election of 1876. Rehnquist is an excellent writer, providing
enough detail so as to bring the people and the period alive,
but not so much detail as to bore the reader. The obvious parallels
to the 2000 presidential election need not be drawn, and Rehnquist
barely mentions the 2000 election at all.
Most interesting, though, is his final chapter.
What intrigues Rehnquist with respect to the electoral commission
that was created, and what interests him more generally, is
whether Supreme Court Justices should have sat on the commission
or should ever play any public roles beyond their duties as
justices of the Court. In other words, given the perception
that the Court is above politics, should Court members ever
risk the reputation and respect of the Court in other, non-judicial
endeavors?
In considering this question, Rehnquist briefly
describes other extra-judicial activities undertaken by Supreme
Court members. For example, at the request of George Washington,
the first Chief Justice, John Jay, served as a special envoy
to Great Britain and negotiated the Jay Treaty. Perhaps the
most famous example is Justice Robert Jackson, who served as
the chief U.S. prosecutor at the Nuremberg Trials following
World War II, and was absent from the Court for a year. Chief
Justice Earl Warren headed the Warren Commission, which investigated
the assassination of John F. Kennedy. There are other examples
as well.
So did those justices who served on the electoral
commission do the right thing? Rehnquist concludes as follows:
“Critics, including Earl Warren, have expressed
the view that the justices serving on the Electoral Commission
demeaned the Court. But here one must be reminded of Lincoln’s
comment when he was accused of acting contrary to the Constitution:
‘Shall I save the Constitution, but lose the nation?’
Four of the five justices [on the Commission] would rather this
cup had passed from them, but the consequences of their refusal
would have been grave, if not entirely foreseeable. They may
have tarnished the reputation of the Court, but they may also
have saved the nation from, if not widespread violence, a situation
fraught with combustible uncertainty. In the view of this author,
in accepting membership on the Commission, they did the right
thing.”
And so Rehnquist concludes his historical study.
Well-written and entertaining, Rehnquist’s book not only
describes a different era, but it also demonstrates that politics
are still very much the same from era to era.
