Re: Shamos Rebuttal, Draft 3

From: Edward Cherlin <cherlin_at_pacbell_dot_net>
Date: Tue May 10 2005 - 15:27:45 CDT

Eternal vigilance is the price of liberty.--Thomas Jefferson
The tree of liberty must be refreshed from time to time with
the blood of patriots and tyrants.--Thomas Jefferson

> >> Some of the other changes tend to defocus the argument,
> >> such as the comments about the Founders
> >
> > The comment about the Founders was a replacement for a far
> > less focussed clause about relegating the issue to academic
> > discussion. No, this was a real live issue back then,
> > discussed in the Federalist Papers, in its analysis of how
> > each branch of the Federal government could and should act
> > to keep the others from becoming tyrannical and oppressive,
> > and elsewhere in public discussion. Jefferson, in
> > particular, went on about the problem (not vote fraud,
> > specifically, but any usurpation of power) for the rest of
> > his life. Something about fertilizing the tree of Liberty
> > with the blood of tyrants, IIRC.
>
> But the passage you edited concerned Shamos's comment on
> illegitimate presidencies, an issue I don't think the Founders
> debated at all.

It is true that the Electoral College was supposed to make
illegitimate presidencies impossible, by choosing the best men
in the country, and avoiding partisan politics. So the
discussion generally does not consider an illegitimate
presidency. But they debated possibilities for illegitimate
elections at all other levels, including potential conspiracies.

There have been several crises in presidential elections,
"remedied" by various means, legitimate and illegitimate.
http://www.time.com/time/pacific/magazine/20001120/schlesinger.html
The election of Democratic-Republicans Thomas Jefferson and Aaron
Burr was thrown into the Federalist Congress, because both
candidates won the same number of electoral votes, and separate
voting for President and Vice-President had not been put into
the Constitution at that time. A Constitutional amendment was
required to fix this.

Jackson led in both the popular and Electoral College vote in
1824, but failed to win outright. The election went to the
House, where Clay got all of the other candidates' supporters to
vote for John Quincy Adams, who then appointed Clay Secretary of
State. The "Currupt Bargain" issue was a factor in Jackson's win
in 1828.

In 1876, "Rutherfraud" B. Hayes was given the election by illegal
suppression of the votes from several Southern states still
under military occupation, followed by wrangling between the
House and Senate, and the appointment of a biased panel that
voted on strict party lines. The election result was accepted
after the offer of a bribe: the end of Reconstruction in the
South, which was turned over to the ex-Confederates.

"in 1888, Grover Cleveland, running for re-election, beat
Benjamin Harrison by 91,000 in the popular vote but lost, 233 to
168, in the electoral college. It was a confusing election.
Fraud tainted both results...no one in 1888 seems to have
questioned the legitimacy of the result."--Arthur Schlesinger

Anyway, back to the Founders.
http://www.yale.edu/lawweb/avalon/federal/fed61.htm

THE more candid opposers of the provision respecting elections,
contained in the plan of the convention, when pressed in
argument, will sometimes concede the propriety of that
provision; with this qualification, however, that it ought to
have been accompanied with a declaration, that all elections
should be had in the counties where the electors resided. This,
say they, was a necessary precaution against an abuse of the
power.
...
The constitution of New York makes no other provision for
LOCALITY of elections, than that the members of the Assembly
shall be elected in the COUNTIES; those of the Senate, in the
great districts into which the State is or may be divided: these
at present are four in number, and comprehend each from two to
six counties. It may readily be perceived that it would not be
more difficult to the legislature of New York to defeat the
suffrages of the citizens of New York, by confining elections to
particular places, than for the legislature of the United States
to defeat the suffrages of the citizens of the Union, by the
like expedient. Suppose, for instance, the city of Albany was to
be appointed the sole place of election for the county and
district of which it is a part, would not the inhabitants of
that city speedily become the only electors of the members both
of the Senate and Assembly for that county and district?
...
And in relation to the point immediately under consideration,
they ought to convince us that it is less probable that a
predominant faction in a single State should, in order to
maintain its superiority, incline to a preference of a
particular class of electors, than that a similar spirit should
take possession of the representatives of thirteen States,
spread over a vast region, and in several respects
distinguishable from each other by a diversity of local
circumstances, prejudices, and interests.

http://www.yale.edu/lawweb/avalon/federal/fed59.htm
Nothing can be more evident, than that an exclusive power of
regulating elections for the national government, in the hands
of the State legislatures, would leave the existence of the
Union entirely at their mercy. They could at any moment
annihilate it, by neglecting to provide for the choice of
persons to administer its affairs. It is to little purpose to
say, that a neglect or omission of this kind would not be likely
to take place. The constitutional possibility of the thing,
without an equivalent for the risk, is an unanswerable
objection. Nor has any satisfactory reason been yet assigned for
incurring that risk. The extravagant surmises of a distempered
jealousy can never be dignified with that character.

If we are in a humor to presume abuses of power, it is as fair to
presume them on the part of the State governments as on the part
of the general government.
...
If the State legislatures were to be invested with an exclusive
power of regulating these elections, every period of making them
would be a delicate crisis in the national situation, which
might issue in a dissolution of the Union, if the leaders of a
few of the most important States should have entered into a
previous **conspiracy** to prevent an election.[Emphasis mine]

-- 
Edward Cherlin
Generalist & activist--Linux, languages, literacy and more
"A knot! Oh, do let me help to undo it!"
--Alice in Wonderland
http://cherlin.blogspot.com
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Received on Tue May 31 23:17:32 2005

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