The Judicial Bookshelf

Abstract

The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. Reflecting more than a century ago on elections in the United States, James Bryce observed in The American Commonwealth that Europeans “are struck, by the faults of a plan which plunges the nation into a whirlpool of excitement once every four years, and commits the headship of the state to a party leader chosen for a short period.” But “there is another aspect in which the presidential election may be regarded, and one whose importance is better appreciated in America than in Europe,” he continued. “The election is a solemn periodical appeal to the nation to review its condition, the way in which its business has been carried on, [and the] conduct of the two great parties. It stirs and rouses the nation as nothing else does, forces everyone not merely to think about public affairs but to decide how he judges the parties. It is a direct expression of the will of voters, a force before which everything must bow.”1 As the quadrennial “whirlpool of excite­ ment” began to swirl for election of a President in 2016, Americans were reminded ofa notable silence in the Constitution: While the framers were careful to include methods for electing Representatives (by the people), Senators (by state legislatures), and the President (by the virtual assembly of what has come to be known as the Electoral College), they included nothing about nar­ rowing the field or selecting candidates for those offices. Partly this omission was as much the result of a concern about the corrosive effects of political parties—the “violence of faction,”2 as James Madison called it in 1787, or the “spirit of party” that President George Washington counseled against in his Farewell Address in 1796, as he “decline[d] being considered among the number of those out of whom a choice [of a successor] is to be made.” And partly it was a hope that the new constitutional system would minimize the strength of parties that indeed were emerging.3 Those parties, which have been labeled “endogenous institutions,”4 formed for at least two reasons. First, parties were vote­ generating machines, essential components for any system founded on government “by the consent of the governed” where marshal­ ling a majority in an election determined the answer to the important question of who was to govern. Second, in the American context, parties proved to be necessary for effective 222 JOURNAL OF SUPREME COURT HISTORY government. That is, in a polity constructed around the prudence of dispersed power as reflected in the Constitution’s nod to the twin principles of separation of powers and federalism, parties became centripetal mech­ anisms to pull together some of what the Constitution had divided. Parties thus enabled like-minded individuals, provided they held enough offices, to move public policy in a desired direction. Elections in turn have given rise to various devices over time to supply names for the ballot. At the Presidential level, early nominating procedures were vastly different from what one sees today. By 1800, party caucuses in Congress recommended Presi­ dential nominees to the state legislatures, which in most states in turn directly chose members of the Electoral College. In 1832, the new Anti-Masonic party tried an alterna­ tive nominating device—the convention. In this instance, necessity was truly the mother of invention in that, with no substantial congressional representation, Anti-Masonics resorted to a meeting outside Congress that convened in a Baltimore saloon. Members of the new Whig party did the same thing and even met in the same saloon. A gathering composed of delegates of the state parties who had been selected by local party leaders impressed many observers as an ideal way of choosing a candidate who could in turn rally widespread support. Democrats were con­ vinced and so also convened in Baltimore to re-nominate Andrew Jackson for a second term.5 Although the convention as a nominating device has persisted, it has been only since the 1970s that ordinary voters in most states have had a major say in the selection of Presiden­ tial nominees. By the 1860s, for example, delegates to the national conventions were selected by state party...