The Judicial Bookshelf

Abstract

The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. Reflecting about a century ago on elec­ tions 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.” However, he continued, there is another aspect in which the presidential election may be re­ garded, and one whose importance is better appreciated in America than in Europe. The election is a solemn periodical appeal to the na­ tion to review its condition, the way in which its business has been car­ ried on, [and the] conduct ofthe 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 well in advance of the 2020 elections, Americans were reminded of a 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 ofwhat has come to be known as the Electoral Col­ lege), they included nothing about selecting candidates for those offices. Elections have thus given rise to vari­ ous devices 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 presidential nom­ inees to the state legislatures, which in most states directly chose members of the Electoral College. In 1832, the new AntiMasonic party tried an alternative nominat­ ing 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 and convened in a Baltimore saloon. Members of the new Whig 86 JOURNAL OF SUPREME COURT HISTORY party did the same thing and even met in the same saloon. A gathering composed of state party delegates who had been selected by local party leaders impressed many as an ideal way of choosing a candidate who could in turn command widespread support. Democrats were convinced and so also con­ vened in Baltimore to re-nominate Andrew Jackson for a second term.2 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 presidential nominees. By the 1860s, for ex­ ample, delegates to the national conventions were selected by state party chieftains, a practice that persisted into the early twentieth century. It was in reaction to this situation that the presidential primary emerged. Pro­ gressive era figures such as Senators Robert La Follette of Wisconsin and Hiram Johnson of California demanded a larger role for the people in the nomination process, whereby the voters would be empowered to select delegates to the national party convention and in the process to express a preference for their party’s presidential nominee. The idea was contagious. As early as 1912, nearly one-third of the states provided for some kind of popular election of con­ vention delegates. By 1916, half the states had a Democratic or Republican presiden­ tial primary, and a few had both. In that year, among Democrats, fifty-four percent of the convention delegates were chosen by primaries—a figure that would not be sur­ passed until 1972. For Republicans, fifty-nine percent of the delegates were the products of primaries, a proportion not exceeded until 1976.3 However, popular participation went only so far in that most primaries did not generate binding results, as party leaders often dictated how delegates voted. As the Progressive movement itself de­ clined nationally after 1920, states began to abandon the primary as a delegate-selection device, so that, by 1936, only forty percent of the convention delegates of the two ma­ jor parties were chosen in primaries...