26

Jonathan Chait, Don’t be an Asshole

In today’s New York Magazine, Jonathan Chait has published a tone-deaf article against liberal efforts to call people out for saying or writing offensive things. Chait uses every empty, meaningless phrase it takes to write such an article: “political correctness,” “language police,” “censorship,” and “thought-criminal.” Of course he discusses Charlie Hebdo because you have to talk about Charlie Hebdo and surrendering to terrorists if you want to talk about “political correctness” these days.

After learning from discussions with many people holding views similar to Chait, I have had some success in distilling the problems of offensive speech to simpler terms. I call it the “don’t be an asshole” rule. It lacks nuance, I admit.

The applications of “don’t be an asshole” are many. Here are just a few:

Don’t yell “fuck” in the middle of a wedding ceremony or funeral.
Don’t fart in someone’s face.
Don’t post your ex-girlfriend’s nude pictures online.
Don’t name your sports team an offensive ethnic slur.
Don’t call women “sluts” even if you believe in your heart-of-hearts that you also call promiscuous men “sluts.”
Don’t use ethnic, religious, homophobic, racial, sexist slurs.
Recognize that you might be racist, sexist, homophobic, or otherwise bigoted and not know it.
Listen charitably.

And if someone calls you are a racist, sexist, bigot, etc., the “don’t be an asshole” rule even has a course of action to take:

Step one: Apologize.
Step two (optional): Thank the person for letting you know (assuming you don’t want to be an asshole in the future).
Step three: Don’t be an asshole again.

It’s really not that hard. If you follow these basic, limited steps, you don’t have to worry about the “politically correct” “thought police” “censoring” your thoughts and letting the terrorists win.

For an exhibit of what to do when you say something offensive, see Benedict Cumberbatch yesterday. Cumberbatch recently used the outdated phrase “colored people” in an interview. For Brits like Cumberbatch, the phrase doesn’t carry, from my understanding, the same baggage that it does in the states. Did Cumberbatch, thus, fight back and say that listeners had it all wrong because they didn’t understand his intent and/or cultural background? No. Did the “thought police” do horrible, horrible things to him? No. This is what Cumberbatch said after being called out for his language: “I’m devastated to have caused offense by using this outmoded terminology. I offer my sincere apologies. I make no excuse for my being an idiot and know the damage is done.” That’s it. Problem solved. Benedict Cumberbatch is not an asshole. Jonathan Chait, don’t be an asshole.

Meet the New Boss…

One of the most persistent self-images of Silicon Valley internet giants is a role as liberators, emancipators, “disintermediators” who’d finally free the creative class from the grips of oligopolistic music labels or duopolistic cable moguls. I chart the rise and fall of the plausibility of that narrative in Chapter 3 of my book. Cory Doctorow strikes another blow at it today:

[T]he competition for Youtube has all but vanished, meaning that they are now essential to any indie artist’s promotion strategy. And now that Youtube doesn’t have to compete with other services for access to artists’ materials, they have stopped offering attractive terms to indies — instead, they’ve become an arm of the big labels, who get to dictate the terms on which their indie competitors will have to do business.

Ah, but don’t worry–antitrust experts assure us that competition is just around the corner, any day now. Some nimble entrepreneur in a garage has the 1 to 3 million servers now deployed by Google, can miraculously access past data on organizing videos, and is just about to get all the current uploaders and viewers to switch to it. The folklore of digital capitalism is a dreamy affair.

2

Vanderbilt Law Review, Volume 68, Number 1

The Vanderbilt Law Review is pleased to announce the publication of our January 2015 issue:

ARTICLES

Norman D. Bishara, Kenneth J. Martin, & Randall S. Thomas, An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants, 68 Vand. L. Rev. 1 (2015).

Amanda Frost, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?, 68 Vand. L. Rev. 53 (2015).

Randy J. Kozel, Original Meaning and the Precedent Fallback, 68 Vand. L. Rev. 105 (2015).

BOOK REVIEW

Edward L. Rubin, Statutory Interpretations and the Therapy of the Obvious, 68 Vand. L. Rev. 159 (2015).

NOTES

Daniel J. Hay, Baptizing O’Brien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct, 68 Vand. L. Rev. 177 (2015).

Mary C. Nicoletta, Proposed Legal Constraints on Private Student Lenders, 68 Vand. L. Rev. 225 (2015).

Jean Xiao, Heuristics, Biases, and Consumer Litigation Funding at the Bargaining Table, 68 Vand. L. Rev. 261 (2015).

10

Netanyahu’s Address to a Joint Session is Not Unconstitutional

There have been some thoughtful posts recently (by Michael Ramsey and David Bernstein) arguing that PM Netanyahu’s upcoming speech to a Joint Session of Congress without presidential approval violates the Executive Branch’s exclusive prerogative “to receive ambassadors” and conduct foreign policy.  I respectfully dissent.

Prime Minister Netanyahu cannot enter the United States unless the State Department gives him a visa.  Thus, the President has the means of preventing this speech.  If he does not, then I submit that he is giving a constitutionally adequate sanction.  A more difficult case would arise if Congress issues the invitation after the foreign leader is here or if it invited a foreign ambassador who is based here.  In that case, I think the standard would be whether Congress is considering legislation related to the speech.  Here a new bill imposing sanctions on Iran is under active consideration, and if Congress wants to hear from Netanyahu or anybody else with something useful to say about that, I think that they can.  This is true even if the real purpose of inviting the leader or ambassador is to embarrass the President.

Now is this invitation is a good idea?  Ask a foreign policy expert.

 

3

ROUNDUP: Law and Humanities 01.23.15

Austin Sarat, Matthew Anderson, and Cathrine O. Frank are the editors of an excellent publication, Law and the Humanities: An Introduction (Cambridge, 2014).  Included are a valuable chapter on the origins of the discipline by the three editors, “Three tales of two texts: an introduction to law and the humanities,” by Kathryn Abrams, a section on Ideas of Justice from the biblical to the postmodern by leading scholars in the field, and other important overviews of the movement. A worthwhile purchase for those interested. Contributors include Richard Sherwin, Christine Farley, Penny Pether, Jay Mootz, Ravit Reichman, and Desmond Manderson. The hardcover is a bit pricey at a list price of $155, but the paperback is $38, and the ebook is priced at $30.

Upcoming law and humanities conferences include the Association for the Study of Law, Culture, and the Humanities, which holds its annual meeting this year at Georgetown University Law Centre on March 6-7. Here’s the program.  In addition, the annual meeting of the Law and Society Association will be in Seattle at the Westin Seattle, from May 28 through the 31. This year’s theme is Law’s Promise and Law’s Pathos in the Global North and the Global South.

 

15

A Word Missing From the Constitution

The answer is “Governor.”  The Constitution never refers to the Governor of a State.  The phrases used instead are “executive authority” or “executive officer.”  I’m not sure why.  One possible answer is that at least one state in 1787 did not have a Governor, but instead relied on some form of collective executive.  (I still need to research that.)

This textual point sheds some light on the Supreme Court’s upcoming examination of what the word “Legislature” means in the Arizona redistricting case.  The Constitution does refer specifically to the Legislature (rather than to “the Legislature authority”) in many places, which suggests that the Legislature itself must play a significant role in the tasks that are delegated to it by the text.  The Arizona Constitution does not do that with respect to redistricting, which is why I’m sticking with my view (after initially concluding otherwise) that the constitutional challenge by the State Legislature should succeed.

UPDATE:  Vik Amar has a new column arguing that an Act of Congress authorizes what the Arizona Constitution does.  It’s an interesting take that might lead me to change my mind again.  After all, Article 1, Section 4 gives Congress given broad authority over districting if it chooses to exercise that power.

6

FAN 44.1 (First Amendment News) — Professor William Van Alstyne weighs in on Citizens United

UnknownIn yesterday’s FAN column I posted the comments of thirteen noted First Amendment lawyers and scholars concerning their views of Citizens United, this on the occasion of the fifth anniversary of the case. One of those who read that column was Professor William Van Alstyne, Perkins Professor of Law, Emeritus, Duke Law School and currently emeritus at the William and Mary School of Law.

As many know, Professor Van Alstyne’s writings on constitutional law and First Amendment have been widely cited by judges and scholars alike. In the free speech area his numerous works include The American First Amendment in the Twenty-First Century (with Kurt Lash, 5th ed., 2014) and his Interpretations of the First Amendment (1990). His scholarly articles in this field include: “Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review,” Law & Contemporary Problems (1990), “First Amendment Limitations on Recovery from the Press — An Extended Comment on the Anderson Solution,” William & Mary L. Rev. (1983), “First Amendment and the Suppression of Warmongering Propoganda in the United States,” Law & Contemporary Problems (1966), and “The Judicial Trend Toward Student Academic Freedom,” University of Florida L. Rev(1967).

Though unsolicited, I was happy to receive Professor Van Alstyne’s comments on Citizens United; those comments are set out below:  

Professor Nadine Strossen’s comments assuredly had by far the more straightforward, compelling and convincing observations re the First Amendment importance and consistency of Citizens United than many  earnest but mistaken critics of the case. No doubt there will continue to be lamentations regarding Citizens United, but it is also correct that there has been no seismic (or even significant) adverse consequences from the Court’s well-articulated explanation of its First Amendment explanation in the case.

Indeed, from a sobering review of the case and of all that one might well consider in thinking about our distinguished First Amendment (the oldest and also the strongest in the entire world), I believe that many (perhaps even most) who favor the opposite outcome will eventually come to regret their support for upholding a government’s dictate restricting what citizens may spend of their own funds to convey their view of a law or of a candidate.

“Levelling down” in this fashion was devastatingly dealt with decades ago by Kurt Vonnegut (a staunch defender of civil liberties) in his five-page wonderful short story, “Harrison Bergeron.” I commend it to the premature, immature, and First Amendment misguided critics of Citizens United.  I hope that some, at least, will take a few moments to read the opinion before joining in the polemics of those who are (like all us in one or another particular way) sometimes unable to see the very special importance of our very special First Amendment. Why? Because they view law from the mote of an obscuring political zeal, blissfully unaware of  a deadly hurricane virtually blotting out the azure blue of freedom’s sky.

13

Involuntary Divorce

Here’s a question that I have about the upcoming same-sex marriage argument.  Suppose you are a same-sex couple that lives in one of the circuits that held that there is a constitutional right to same sex marriage and where the cert. petition was denied last Fall.  In other words, the judgment is final.  Your home state did not legalize same-sex marriage, but (relying on the circuit case), you got married.  In June, the Supreme Court holds that there is no right to same-sex marriage (unlikely, but humor me).

Would that decision means that you are legally divorced?  And if that is true, could one of the parties avail themselves of the state’s divorce law in, say, two years if the relationship breaks down?  How would that work?

2010 State of the Union Address
2010 State of the Union Address
17

FAN 44 (First Amendment News) Citizens United: it was 5 years ago today — 13 First Amendment lawyers & scholars offer differing views

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” [President Obama] said of the Citizens United v. Federal Election Commission decision, which allowed corporations to donate to political candidates. Justice Samuel Alito then shook his head and whispered, “not true.” — Tessa Berenson, Time (2015)

On this day five years ago the Supreme Court, by a 5-4 vote, handed down its decision in Citizens United v. Federal Election Commission (transcripts here and here & audio file — argument and re-argumament —  here).

As you will see, the comments below span a wide rhetorical range. On the one hand, some view Citizens United as “one of the worst decisions in the history of the United States Supreme Court” (Geof Stone), while others argue that the Court in Citizens United “reaffirmed and applied core First Amendment principles” (Joel Gora). See below for the full spectrum of views.   

Speaking of money and speech, the Court now has before it a First Amendment challenge to a panhandling law — Thayer v. City of Worcester (distributed for Conference of Jan. 9, 2015).

Before proceeding to the comments, I thought it might be useful to provide a few hyperlinked historical facts about the case. 

The documentary that prompted the litigation

Hillary: The Movie

The Petitioner

The Lawyer for the Petitioner in the District Court

Three-Judge District Court per curiam opinion here

The Lawyers who argued the case in the Supreme Court 

  1. Theodore B. Olson (argued the cause for the Appellant)
  2. Floyd Abrams (on behalf of Senator Mitch McConnell, as amicus curiae, in support of the Appellant)
  3. Malcolm L. Stewart (Deputy S.G., Department of Justice, argued the cause for the Appellee)
  4. Elena Kagan (Solicitor General, Department of Justice, reargued the cause for the Appellee)
  5. Seth P. Waxman (on behalf of Senators John McCain et al. as amici curiae in support of the Appellee)

Five Years Later — Lawyers & Scholars Offer Comments 

Floyd Abrams: “Academics, it seems fair to say, are overwhelmingly critical of the Citizens United ruling. If they were irate about  Buckley v. Valeo (1976) — formerly their consensus choice as the worst Supreme Court ruling since Dred Scott (1856) — they are apoplectic about Citizens United.  At the core of the both rulings is the now familiar proposition first uttered by the Supreme Court in Buckley  and repeated with approval in Citizens United that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” If one accepts that notion, as I do, the ruling in Citizens United follows naturally and a documentary-like movie that castigated Hillary Clinton when she last sought the presidency must be protected by the First Amendment. If one does not, one naturally enough can join the four Citizens United dissenters in concluding that it is constitutional to impose criminal penalties for the airing of that film on television. For me, that was not a difficult choice five years ago and it is not one today.”

See here re brief filed by Mr. Abrams in Citizens United; see also his “Citizens United and Its Critics,” Yale L.J. Online (2010)

Mr. Jan W. Baran

Mr. Jan W. Baran

Jan W. Baran: “The Court was correct to protect political speech by all citizens and groups, including corporations and unions. Current so-called reform efforts, including proposals to amend the Constitution, prove that the First Amendment is all that stands between political freedom and government control of speech. Contrary to President Obama’s dire predictions, corporations are not distorting political debate and foreign money (which is illegal) has not flooded campaigns. It is the Obama re-election committee that became the first campaign to raise and spend $1 billion.  So much for campaign money distorting the system.”

 See here re brief filed by Mr. Baran in Citizens United.

Robert Corn-Revere: “Citizens United is like a political Rorschach Test. But when divorced from its many critics’ policy preferences, it is a pretty straightforward First Amendment case that concludes there are constitutional difficulties with making political speech a federal crime.  And, along the way, the Court reached a number of important (and usually overlooked) constitutional findings. One key conclusion is that “[w]e must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.” The Court observed that “[t]he Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.” This fundamental constitutional principle is increasingly important as we witness seismic changes in the global media environment. And it is just one of several important pillars of the case.”

Number of articles about Citizens United in the 27 months following the decision 

New York Times         1100

Washington Post        327

USA Today                  220

Wall Street Journal    195

 This count includes columns and opinion pieces but not blog posts.

 Source: Douglas Spencer & Abby Wood, Indiana L. J. (2014)

Allen Dickerson: “Citizens United has become a symbol onto which politicians and commentators project their own hopes, agendas, and insecurities. But cutting through the rhetoric, the case asked a simple question: on what principled basis could the government ban a nonprofit’s documentary while permitting corporate newspaper endorsements? The Court, correctly, said ‘none.’ Nevertheless, legislatures and regulators continue to draw distinctions between different types of speech, and different types of speakers, and the result is a level of bureaucratic complexity average Americans cannot hope to navigate. Five years after Citizens United showed us our error, burdened by a national debate that yields more heat than light, we continue to avoid the difficult task of reforming that troubling approach to political engagement.”

Professor Joel Gora

Professor Joel Gora

Joel Gora: “The Supreme Court’s Citizens United decision was a landmark of political freedom. By striking down government bans on political speech by labor unions, corporations and non-profit organizations, the Court reaffirmed and applied core First Amendment principles. These include the concepts that protecting political speech against government censorship is at the core of the First Amendment’s mission, that the government cannot be empowered to decide which people or groups can speak about government and politics, what they can say, or how much they can say, and that democracy requires as much information as possible from diverse and antagonistic sources.”

“Embodying these principles, the Citizens United decision has had a number of salutary consequences. It has provided doctrinal support for further easing of campaign finance limits on political speech and association.  Second, the rejection of such limits has turned attention properly to more positive efforts to address our admitted campaign finance system difficulties. Finally, although the predicted tsunami of corporate spending “drowning our democracy” never materialized, the Court’s decision has helped spark an increase in overall political funding which has helped make our elections more competitive and the electorate better informed. All in all, I submit, a good day’s work for political freedom and democracy.”

 See here re brief coauthored by Professor Gora in Citizens United.

Richard Hasen: “After five years, it has become clear that Citizens United is only part of the problem. If the Court reversed it tomorrow (something I am not expecting), we would still have Super PACs funded by very wealthy individuals, loads of undisclosed money coming through 501(c)(4)’s and other organizations, and an increased ability for those with economic power to transform it into political power. It is time to rethink first principles — which is my current book project. Stay tuned.”

→ See Professor Hasen’s Legislation, Statutory Interpretation, and Election Law (ch. 13, 2014) re his comments on Citizens United

Forthcoming Book

Elizabeth Price Foley, Defending Citizens United: How Campaign Finance Laws Restrict Free Speech (Praeger, Oct. 31, 2015)

Alan Morrison: “The fight with the Court over Citizens United should not be over whether corporations have rights to make political expenditures, but whether the Court’s ruling in Buckley v. Valeo (1976) that there can be no limits on independent expenditures and that there are no constitutional or other values that can even be considered in assessing that ruling. Here are some examples.  The pre-Buckley decision in United States v. O’Brien (1968), recognized that the right to political protest could be overcome by the Government’s interest in enforcing its selective service laws. In Burson v. Freeman (1992), the Court upheld a law prohibiting the core political activities of soliciting votes and distributing of campaign materials within 100 feet of a polling place.  And cases like Ward v. Rock Against Racism (1989), would surely support an ordinance that banned sound trucks from blaring at more than 100 decibels at midnight.  Post Citizens United, the Court summarily upheld the law that bans all contributions and independent expenditures solely because the plaintiffs were neither U.S. citizens nor permanent resident aliens.  Bluman v. FEC (2012). (See also here.)”

 See here re brief coauthored by Mr. Morrison in Citizens United.

Professor Tamara Piety

Professor Tamara Piety

Tamara Piety: “Citizens United legitimated the notion that corporations (and capital) are embattled, “disfavored” speakers entitled to the special solicitude of the courts’ counter-majoritarian power, as if they were a discrete and insular minority which lacked access to the political process, rather than a force that is very nearly constituent of it. It relies on an implied (and specious) syllogism: if discrimination against people is bad, and corporations are people, then “discriminating” between corporations and natural persons, or between types of corporations, is likewise bad. This reasoning animates Hobby Lobby (2014) and is echoed in Sorrell v. IMS Health (2011), with “marketing” standing in for “corporation” and “speech” for “people.” This line of argument has destabilized much corporate and regulatory law.  For its proponents, Citizens United has been fabulously successful; but that success has come at some political cost. Citizens United has tarnished the Court’s public image. It seems likely that the decision will be cut back, but how and from which direction is difficult to predict.”

→ See Professor Piety’s Brandishing the First Amendment (2012) re her comments on Citizens United

Ilya Shapiro: “Citizens United is one of the most misunderstood high-profile cases ever and it’s both more and less important than you might think. It’s more important because it revealed the unworkability of our current system of campaign regulation. It’s less important because it doesn’t stand for half of what many people say it does. By removing limits on independent associational speech—spending on political advertising by people unconnected to candidates and parties—it weakened the government’s control of who can speak, how much, and on what subject. That’s a good thing. After all, people don’t lose their rights when they get together, whether it be in unions, non-profit advocacy groups, private clubs, for-profit enterprises, or any other form.”

 See here re brief coauthored by Mr. Shapiro in Citizens United; see also his op-ed “Citizens United Misunderstood, USA Today, Jan. 20, 2015

Professor Geoffrey Stone

Professor Geoffrey Stone

Geoffrey Stone: “Citizens United may well turn out to be one of the worst decisions in the history of the United States Supreme Court. As Oliver Wendell Holmes recognized almost a century ago, the American political system depends upon the reasonable functioning of the “marketplace of ideas.” It has always been clear that that “marketplace” is imperfect. But until now, it was generally able to reflect the views of the majority of the American people. With its decision in Citizens United, the Supreme Court has unleashed forces that seriously threaten to corrupt and distort that “marketplace” in ways that stand the First Amendment on its head and endanger the future of American democracy.”

See Professor Stone’s article “Citizens United & Conservative Judicial Activism,” U. Ill. L. Rev. (2012)

Nadine Strossen: “From President Obama,  in his  State of the Union Address the following week, to major media outlets, the vast majority of Citizens United’s critics misstate its holdings. Almost never mentioned are the crucial facts that it protects the rights of non-profit corporations and unions to spend their own money on their own messages; too often asserted is the falsehood that it permits wealthy for-profit corporations (or anyone, for that matter) to make unlimited contributions to candidates’ campaigns.”

See here re Professor Strossen’s comments on Citizens United

Fred Wertheimer: “The ideologically driven Citizens United decision has left the nation’s campaign finance and political system in shambles. It is one of the worst Supreme Court decisions ever made. The Court ignored the country’s history, its own jurisprudence and the need to protect America’s system of representative government against corruption – a need recognized by the Founding Fathers. Citizens United will not stand the test of time. It will end up in the dustbin of history.”

 See here re brief coauthored by Mr. Wertheimer in Citizens United.

Larry Tribe on Citizens United

Forthcoming: The working title is “Dividing Citizens United: The Case v. The Controversy.” The piece will appear in Constitutional Commentary.

Adam Winkler: “Citizens United is one of the most controversial Supreme Court decisions in a generation. Yet the decision is widely misunderstood by the public. From Occupy Wall Street to the White House, Citizens United has inspired critics who insist that corporations are not people. Yet the Supreme Court did not rely on corporate personhood in Citizens United. Justice Anthony Kennedy’s majority opinion never refers to corporations as people and nothing in the reasoning of the opinion turns on personhood. Justice Kennedy instead insists corporations are “associations of citizens” whose rights derive from the natural people who make up the firm. This is a problematic formulation that hides the corporation and allows the Court to avoid asking hard questions about what rights corporations as such should have. Justice Kennedy’s approach equates a business corporation with a voluntary membership organization like the NAACP, both equally entitled to assert the rights of its members.”

“Corporations are people under corporate law. That was their original purpose. And corporations must have some constitutional rights, such as the right to property and due process. Yet they shouldn’t have all the same rights as people, such as the right to vote or hold office. Constitutional doctrine would be improved if instead of hiding the corporation, we recognized that corporations are indeed people — and then asked which rights these corporate people ought to have.”

See here re Professor Winkler’s “Three Misconceptions in Citizens United

__________________

Event: Citizens United v. FEC after Five Years Read More

15

The Rise and Fall of Presidential Gerrymandering

A great deal of attention is given to partisan gerrymandering of congressional and state legislative districts.  What receives less attention, though, is the fact that there is a strong norm against gerrymandering within the Electoral College.  A state that usually votes one way in presidential elections could be taken over by the other party and change its method of allocating electoral votes.  For instance, suppose Republicans won the Governorship and Legislature of New York, a state they have no chance of winning at the presidential level.  (It hasn’t happened since 1984.)  They could move from a winner-take-all system to a proportional one, or one based on congressional districts, or something else.  This would net the GOP many electoral votes (at least 10) and could turn the national election in a close race.

This is not a hypothetical, as I recently learned.  In 1888, Benjamin Harrison was elected President even though he lost the popular vote to President Cleveland.  One of the states Harrison carried was Michigan.  In 1890, Democrats won the control of the State Legislature and Governor’s Mansion and did exactly what I described.  Republicans challenged this action and the Supreme Court held, in McPherson v. Blacker, that Michigan had not violated the Constitution.

In his 1891 Annual Message (before the Supreme Court ruled) President Harrison denounced Michigan’s act at length.  He was, of course, not a neutral party, as he was running for reelection.  This is the relevant passage:

The method of appointment by the States of electors of President and Vice-President has recently attracted renewed interest by reason of a departure by the State of Michigan from the method which had become uniform in all the States. Prior to 1832 various methods had been used by the different States, and even by the same State. In some the choice was made by the legislature; in others electors were chosen by districts, but more generally by the voters of the whole State upon a general ticket. The movement toward the adoption of the last-named method had an early beginning and went steadily forward among the States until in 1832 there remained but a single State (South Carolina) that had not adopted it. That State until the Civil War continued to choose its electors by a vote of the legislature, but after the war changed its method and conformed to the practice of the other States. For nearly sixty years all the States save one have appointed their electors by a popular vote upon a general ticket, and for nearly thirty years this method was universal.

After a full test of other methods, without important division or dissent in any State and without any purpose of party advantage, as we must believe, but solely upon the considerations that uniformity was desirable and that a general election in territorial divisions not subject to change was most consistent with the popular character of our institutions, best preserved the equality of the voters, and perfectly removed the choice of President from the baneful influence of the “gerrymander,” the practice of all the States was brought into harmony. That this concurrence should now be broken is, I think, an unfortunate and even a threatening episode, and one that may well suggest whether the States that still give their approval to the old and prevailing method ought not to secure by a constitutional amendment a practice which has had the approval of all. The recent Michigan legislation provides for choosing what are popularly known as the Congressional electors for President by Congressional districts and the two Senatorial electors by districts created for that purpose. This legislation was, of course, accompanied by a new Congressional apportionment, and the two statutes bring the electoral vote of the State under the influence of the “gerrymander.”

These gerrymanders for Congressional purposes are in most cases buttressed by a gerrymander of the legislative districts, thus making it impossible for a majority of the legal voters of the State to correct the apportionment and equalize the Congressional districts. A minority rule is established that only a political convulsion can overthrow. I have recently been advised that in one county of a certain State three districts for the election of members of the legislature are constituted as follows: One has 65,000 population, one 15,000, and one 10,000, while in another county detached, noncontiguous sections have been united to make a legislative district. These methods have already found effective application to the choice of Senators and Representatives in Congress, and now an evil start has been made in the direction of applying them to the choice by the States of electors of President and Vice-President. If this is accomplished, we shall then have the three great departments of the Government in the grasp of the “gerrymander,” the legislative and executive directly and the judiciary indirectly through the power of appointment.

An election implies a body of electors having prescribed qualifications, each one of whom has an equal value and influence in determining the result. So when the Constitution provides that “each State shall appoint” (elect), “in such manner as the legislature thereof may direct, a number of electors,” etc., an unrestricted power was not given to the legislatures in the selection of the methods to be used. “A republican form of government” is guaranteed by the Constitution to each State, and the power given by the same instrument to the legislatures of the States to prescribe methods for the choice by the State of electors must be exercised under that limitation. The essential features of such a government are the right of the people to choose their own officers and the nearest practicable equality of value in the suffrages given in determining that choice.

It will not be claimed that the power given to the legislature would support a law providing that the persons receiving the smallest vote should be the electors or a law that all the electors should be chosen by the voters of a single Congressional district. The State is to choose, and finder the pretense of regulating methods the legislature can neither vest the right of choice elsewhere nor adopt methods not conformable to republican institutions. It is not my purpose here to discuss the question whether a choice by the legislature or by the voters of equal single districts is a choice by the State, but only to recommend such regulation of this matter by constitutional amendment as will secure uniformity and prevent that disgraceful partisan jugglery to which such a liberty of choice, if it exists, offers a temptation.

Nothing just now is more important than to provide every guaranty for the absolutely fair and free choice by an equal suffrage within the respective States of all the officers of the National Government, whether that suffrage is applied directly, as in the choice of members of the House of Representatives, or indirectly, as in the choice of Senators and electors of President. Respect for public officers and obedience to law will not cease to be the characteristics of our people until our elections cease to declare the will of majorities fairly ascertained without fraud, suppression, or gerrymander. If I were called upon to declare wherein our chief national danger lies, I should say without hesitation in the overthrow of majority control by the suppression or perversion of the popular suffrage. That there is a real danger here all must agree; but the energies of those who see it have been chiefly expended in trying to fix responsibility upon the opposite party rather than in efforts to make such practices impossible by either party.

Is it not possible now to adjourn that interminable and inconclusive debate while we take by consent one step in the direction of reform by eliminating the gerrymander, which has been denounced by all parties as an influence in the selection of electors of President and members of Congress? All the States have, acting freely and separately, determined that the choice of electors by a general ticket is the wisest and safest method, and it would seem there could be no objection to a constitutional amendment making that method permanent. If a legislature chosen in one year upon purely local questions should, pending a Presidential contest, meet, rescind the law for a choice upon a general ticket, and provide for the choice of electors by the legislature, and this trick should determine the result, it is not too much to say that the public peace might be seriously and widely endangered.

In 1892, President Harrison won Michigan again but 5 of its 14 electoral votes went to Grover Cleveland.  (Cleveland won the election by a lot more than that.)  Republican regained control of the state prior to the 1896 election, and returned Michigan to a winner-take-all method.  No state has engaged in this sort of gamesmanship since then, though from time there have been threats to do so.