When State’s Rights Was Progressive

White-haired man with black coat

Although the term state’s rights is commonly associated with the political right in the United States and indeed most conflicts that have involved states vs. feds in recent years have had the right on the side of the states. However, this isn’t a rule and the earlier history of state’s rights proves it. The original advocates of state’s rights were Jeffersonian and Jacksonian Democrats. The Federalists and Whigs believed in an active federal government to help the nation grow. This meant infrastructure projects such as bridges and canals so commerce could expand and permitting companies to form in multiple states. They viewed the federal government as a cooperative helper to business, not as a check on its power. The Federalists and Whigs were the supporters of the growth of corporations and the Jacksonians regarded state’s rights as a useful tool to combat such a growing power that he viewed as harming farmers and common laborers, which would reach its peak during the Gilded Age.

Jackson and the Second Bank of the United States

In 1819, the Supreme Court ruled in McCulloch v. Maryland (1819) that a National Bank was constitutional by a 7-0 vote and that it could not be taxed by states. The political leaders of the state of Maryland had opposed the National Bank and had passed a tax on all branches of banks that weren’t chartered by the legislature. The Second Bank was intended to help the growth of commerce, and Maryland sought to restrict it. Although Jefferson was the first major figure to espouse state’s rights, the official founding of the Democratic Party was under Andrew Jackson, a major proponent of state’s rights.

President Jackson and his supporters were deeply suspicious of concentrated economic power and took a dim view of the financial power of the Northeast. They opposed paper money as they believed it contributed to “a corrupting and demoralizing system that made the rich richer, and the poor poorer” (Remini, 127). Thus, only gold and silver coins were acceptable currency for them. They saw as the epitome of concentrated economic power in the Second Bank of the United States, a private institution created by Congressional charter to manage fiscal transactions for the U.S. government, with the federal government owning 20% of its capital. Jackson doubted the bank’s constitutionality and to make matters worse allegations abounded that the bank under its chief, Nicholas Biddle, had taken actions that favored John Quincy Adams in the 1828 election. Biddle was encouraged by Jackson’s supporters to select candidates from both parties as Bank of the United States officers, but he feared that using partisan balance as a criterion would inevitably detract from the quality of people who were officers of the bank.

Some of the opposition was based on fear of what federal authority on this issue could do to the institution of slavery. As future President John Tyler of Virginia, who would side with the Confederacy during the War of the Rebellion, warned, “if Congress can incorporate a bank, it might emancipate a slave” (Dangerfield, 98). As president, he would veto a proposed reconstitution of the Second Bank of the United States. Andrew Jackson was openly hostile, stating to a delegation of bankers discussing the reauthorization of the charter of the Second Bank of the United States, “You are a den of vipers and thieves. I intend to rout you out, and by the eternal God, I will rout you out” (U.S. History).  In 1832, Bank President Nicholas Biddle and his allies in the Senate, Henry Clay of Kentucky and Daniel Webster of Massachusetts, attempted to reauthorize the bank four years early to provide an election dilemma for President Jackson and to ensure the bank’s extension.

If Jackson signed reauthorization of the bank, it would please Pennsylvania voters but it would displease his farmer and laborer constituency and if he were to veto reauthorization it would cost him in New England and in Pennsylvania. Congress voted to reauthorize and a majority of his cabinet supported it, but as Jackson said to Martin Van Buren in response to these efforts, “The Bank is trying to kill me, Sir, but I shall kill it!” (U.S. History) Jackson vetoed the Bank Recharter Bill, and ordered deposits removed from the Bank and placed in state banks. Before the veto of the Second Bank of the United States, presidents saw it as their place to only veto legislation they believed unconstitutional, but Jackson used arguments in his veto message that were ideological and political as well as constitutional. He stated in his veto message, “The rich and powerful too often bend the acts of government to their selfish purposes…When the laws…make the rich richer and the potent more powerful, the humble members of society – the farmers, mechanics, and laborers – have a right to complain of the injustice to their government” (Boissoneault). This set the precedent of presidents vetoing legislation they disagreed with and we haven’t looked back since. Jackson’s opposition, which controlled Congress at the time, was furious and passed a resolution censuring the president for “abuse of power”. In 1833, Biddle tried to reassert his power by constricting loans from the bank, which caused a mild economic downturn. Ultimately this power play didn’t help his case for extending the bank’s charter and in 1836 the Second Bank of the United States was ended. The economic repercussions of this wouldn’t be clear until after Jackson’s presidency, and his successor Martin Van Buren would take the political heat for it.

Jackson’s action against the commercial interests of the Northeast came to be greatly celebrated among Democrats for a long time and, along with his advocacy for working class people and farmers, resulted in them venerating Jackson with Jefferson as the greatest presidents. Indeed, it wasn’t until about the last twenty years that Andrew Jackson lost his spot on top ten lists for historians. His veto of the Second Bank also made him a pioneer of class politics and inspired future populist and progressive campaigns and planks, including that of Franklin D. Roosevelt. The progressive movement of the late 19th and early 20th centuries in the first place was a response to the politics, economics, and social conditions of the Gilded Age. The Democratic Party at its start in the 1830s was, paradoxically to the eyes of the modern viewer, both for state’s rights and economically progressive.

Jackson, however, had his limits on state’s rights. He would not, for instance, permit South Carolina’s nullification of the Tariff of 1832 and used the navy to enforce it. He called anyone who would propose to secede from the United States a traitor and threatened the hanging of political leaders who tried it. Ultimately, Jackson signed into law a bill with lower tariffs. Tariffs, as I have written before, were until the 1970s understood as a position of the political right, as Americans for Democratic Action repeatedly counted votes for lower tariffs favorably in their legislative scorecards.

Historian Views on State’s Rights

Historian Michael Kazin (2017) writes, “The [Democratic] party’s founders in the 1830s believed that the federal government needed to stay out of most economic matters; but unlike conservative Republicans today, they did so because they thought that an interventionist government benefited the rich and well-connected”. Other progressives viewed state’s rights similarly…in 1927 Vernon L. Parrington, a left-wing literary historian, wrote with lament that the decline of state’s rights with the justified end of slavery opened the door to “the principle of capitalistic exploitation” (Genovese). In 1946, liberal historian Arthur Schlesinger Jr., a founder of the left-wing Americans for Democratic Action lobbying group, wrote the Pulitzer prize winning The Age of Jackson, which celebrated Jackson as a hero for the working class and emphasized his and his coalition’s checking of the power of business. This was the basis FDR could justify his legacy as like that of Jackson despite his different approach. As historian Eugene Genovese (2001) writes, “…although we tend to think of federal intervention as “progressive” and the relegation of regulatory power to the states as “reactionary”, the historical record shows nothing of the sort. After the Civil War the federal government, notably the courts, smoothed the way for big-business combinations (“pools”, “Trusts”), and it was the states that initiated restrictions”.

The New Deal transformed Democratic politics in terms of means, but not ends. Likewise, the Republican Party’s true ideological ancestors were the Whigs and the Federalists, for they stood for making the United States an easier place to do business in. Their means changed…the federal government, rather than state governments, were used to check capitalism. Additionally, the context of the Democratic Party has changed. As I have written in the past, who they view as a common person has greatly expanded. Many modern pop perspectives on history place an immense emphasis on racial issues, which means the primary focus on Jackson regards the Trail of Tears and his status a slave owner who uncritically embraced the institution. These are undoubtedly factors of his presidency that should be talked about and ones that Arthur Schlesinger Jr., to his regret, completely ignored in writing The Age of Jackson. However, such a heavy emphasis can serve to remove from public consciousness significant historical issues that, were we to place more emphasis on them, would improve public understanding of history.

References

Boissoneault, L. (2017, March 23). Is Elizabeth Warren the Real Jacksonian on Capitol Hill? Smithsonian Magazine.

Retrieved from

https://www.smithsonianmag.com/history/elizabeth-warren-real-jacksonian-capitol-hill-180962651/

Campbell, S.W. (2019). The bank war and the partisan press: newspapers, financial institutions, and the post office in Jacksonian America. Lawrence, KS: University Press of Kansas.

Dangerfield, G. (1965). The awakening of American nationalism: 1815-1828. New York, NY: Harper & Row.

Genovese, E. (2001). Getting States’ Rights Right. The Atlantic.

Retrieved from

https://www.theatlantic.com/magazine/archive/2001/03/getting-states-rights-right/302133/

Kazin, M. (2017, August 10). The Two Andrew Jacksons. The Nation.

Retrieved from

https://www.thenation.com/article/archive/the-two-andrew-jacksons/

Remini, R.V. (1984). Andrew Jackson and the course of American democracy, 1833-1845. New York, NY: Harper & Row Publishers, Inc.

The War Against the Bank. U.S. History.org.

Retrieved from

https://www.ushistory.org/us/24d.asp

 

 

MC-Index & Civil Rights, 1945-1946

This is yet another one of my data oriented posts, but I will provide some background to the context. In the aftermath of World War II, many issues were befalling the American people. Specifically, transitioning from wartime to peacetime. Part of this were the headaches that involved the maintenance of wartime price control. Indeed, many votes I am counting here involve price control. The key issue of the 1946 midterms was, as I have written about before, meat shortages, which were caused by price controls. Also hitting the American public was a housing shortage as many veterans were coming home to a short supply. Again, we have issues of price control being debated surrounding housing. Communism was yet another issue, particularly in the House, as the House Committee on Un-American Activities became a permanent committee. It was originally thought the committee would end after the departure from Congress of its chairman, Martin Dies Jr.

Labor union unrest also grew after World War II as most unions had followed the wartime “no strike” pledge and the country was beset with strikes, which emboldened organized labor’s critics. Proposals to crack down on organized labor and to exempt certain fields from coverage under the National Labor Relations Board abounded. Nearly all of the issues here were in the context of wartime to peacetime…including the establishment of HCUA as directing increasing scrutiny towards the USSR and communists at home. Civil rights even could be considered a part of this…although civil rights proposals had been made before the end of World War II, they were mostly restricted to anti-lynching and anti-poll tax legislation. The sense had grown greater than before that it was time to address civil rights, especially since we had just finished fighting an enemy force that took prejudice to its logical extreme.

At this point in my ideological scoring, civil rights hasn’t entered the liberal/conservative dimension…that comes after Harry S. Truman’s announcement of support for civil rights in 1948 and applies primarily but not exclusively to legislation regarding the private sector.

Civil rights votes plotted with MC-Index Scores for 1945-46

1945-46 Civil Rights-converted

Mike’s Conservative Index Vote Descriptions

1945-46 MC-Index-converted

 

John Lindsay: From Eisenhower Republican to Liberal Democrat

John Lindsay NYWTS 1.jpg

In 1958, the Republican establishment of the “silk stocking” district of Manhattan was looking to replace Congressman Rene F. Coudert, who was calling it quits after coming close to defeat for reelection in 1956. Enter John Lindsay (1921-2000). Lindsay had been an aide to Attorney General Herbert Brownell, who gave him his endorsement. He also won endorsements from other Republican figures, including advertising executive and former Congressman Bruce Barton, John Aspinwall Roosevelt, and Wendell Willkie’s widow, Edith. Lindsay kept the seat for the Republicans in a tough year for the party and performed better than Coudert had in the relatively good year of 1956, and in his first term he seemed to give everyone some reasons to like him. In his first year, Americans for Constitutional Action gave him a 79% while Americans for Democratic Action gave him a 67%. Lindsay was at the start of his Congressional career a fiscal conservative who made exceptions for public housing, a subject of interest for his district. He backed President Eisenhower’s vetoes on water pollution and public works projects and supported cutting government spending. However, Lindsay was also a social liberal who was anti-anti-Communist and when GOP elder conservative Noah Mason (R-Ill.) delivered a speech blasting the Warren Court, the freshman Lindsay spoke in the court’s defense. Indeed, he proved a firm supporter of the Warren Court’s decisions on criminal defendants, civil rights, and legislative reapportionment. He also proved an opponent of the House Committee on Un-American Activities. After the election of John F. Kennedy, his record began to drift in a decidedly liberal direction. Save for public works and food stamp legislation, Lindsay backed the Great Society and its flagship program, the Economic Opportunity Act of 1964, which launched the “War on Poverty”. In his last year in Congress, 1965, Lindsay got a mere 7% from Americans for Constitutional Action and didn’t oppose Americans for Democratic Action on a single vote. His overall MC-Index score is a 31%. It was on his liberal record that he ran for Mayor of New York City.

Lindsay ran for mayor on a platform that declared that New York City was a city in decline and in need of reinvigoration. His campaign slogan was borrowed from political commentator Murray Kempton’s statement about him: “He’s Fresh and Everyone Else is Tired” (Fettmann, 2000). His opponents were Democrat Abraham Beame and Conservative Party nominee William F. Buckley Jr. The latter, a giant in conservative intellectual circles as founder of the publication National Review, ran as a protest candidate with no expectation to win. Between Lindsay, who was running on the Republican and Liberal tickets, and Beame, the real contest was between two liberals. Lindsay, although not the usual fare for New York City politics as a WASP who graduated from Yale, he won the election. His start was full of promise and he proclaimed his belief that New York City was “Fun City” and his desire to keep it that way. However, a strike from the Transport Workers Union of America began on his first day of office, which resulted in a stoppage of subway and bus service. Lindsay ultimately negotiated a settlement, but the payout from the settlement ($500 more in yearly pensions for all workers) combined with more residents on welfare and economic troubles forced Lindsay to push for higher taxes. He also focused on providing extensive financial aid to minority communities and reforming the police, which won him praise from the city’s black community, but his efforts to decentralize teacher’s unions pitted black and Puerto Rican parents in conflict with Jewish teachers and administrators. The ongoing tensions that resulted between the communities in the aftermath greatly troubled Lindsay. In 1968, a sanitation strike rocked the city, resulting in tons of garbage on the streets of New York City being blown around by gusts of wind. To make it worse, some garbage caught on fire.

Lindsay’s Response to the MLK Assassination and Troubles with his Administration

Lindsay’s response to the aftermath of Martin Luther King Jr.’s assassination was widely praised, as he addressed angry crowds in Harlem on that very day. As journalist Pete Hamill wrote, “John Lindsay that night confronted the dragons of a possible urban apocalypse…There are men and women alive today who might have died except for Lindsay’s uncommon valor” (Murphy, 2010). Given his compassionate and attentive leadership for the city’s black population, he was able to spare New York City the magnitude of civil disturbances and riots that occurred in the aftermath. His ability to engage with voters was one of his greatest strengths as mayor. However, he was negatively associated with New York City’s free spending ways, and when justified and not he was getting blamed for the city’s increasingly strained finances – his administration borrowed money to fund regular expenditures. In 1967, Lindsay’s administration produced the city’s very first construction budget to exceed $1 billion, most of which was to be offset by federal funds. The rise in crime in the city also occurred under Lindsay’s watch, and one of his emphases had been reform of the police through citizens commissions to report police misbehavior. He was frequently blamed by New York City voters for the city’s descent into crime, which although the rise had started under his predecessor, Robert Wagner Jr., it accelerated in his time in office and he proved unable to mitigate the situation.

The Kerner Commission

In 1967, Lindsay was one of the public officials appointed by President Lyndon B. Johnson to serve on the Kerner Commission, and quickly he and Senator Fred Harris (D-Okla.) came to be the driving forces of the committee and were largely responsible for the committee’s report that the causes of urban riots were a lack of economic opportunity and warned that American society was moving into two societies: white and black, separate and unequal, and called for an extensive program to remedy the situation. The report blamed white society for the creation and maintenance of the ghettos.

The Blizzard and Lindsay’s Political Switch

On February 8, 1969, a massive blizzard hit the east coast, with New York City being especially impacted. The response of Lindsay and New York City’s government was widely panned, and many areas remained snowed in for over a week. Lindsay was accused of giving favorable treatment to Manhattan over Queens. Diplomat and undersecretary general for the United Nations Ralph J. Bunche wrote to Lindsay, stating that he had never “experienced such neglect in snow removal as now” (Chan, 2009). When Lindsay visited Queens, the response to him was quite poor. He was booed on the streets, a woman screamed that “You should be ashamed of yourself”, and another woman told him to “Get away, you bum” (Chan, 2009). The reception to his visit wasn’t entirely negative, however. One woman told Lindsay that she thought he was “a wonderful man” to which he responded, “And you’re a wonderful woman, not like those fat Jewish broads up there”, referring to residents of a nearby apartment complex who had criticized him (Chan, 2009). This comment wasn’t reported at the time…had Lindsay made such a remark in the age of social media it would have been devastating, as he was already being accused of disfavoring Jews. As a result of the backlash to the Lindsay Administration’s incompetence on the blizzard, Lindsay lost renomination by the Republican Party, but won the Liberal and Independent nominations and managed to win reelection against Republican state Senator John J. Marchi of Staten Island and Democrat Mario Procaccino, the latter who coined the term “limousine liberal” to describe Lindsay and his supporters. However, he was politically weakened and he complained that the city was impossible to govern, an assertion that would be disproved by future mayors.

In 1971, Lindsay switched to the Democratic Party and that year saw yet another strike, this time of county and municipal employees who didn’t work for two days, resulting in drawbridges being stuck in the up position and massive amounts of sewage spilling into waterways. The following year he ran for the Democratic nomination for president, but he fared about as well as de Blasio in his run. In 1973, he declined to run for reelection. By 1975, New York City had to ask the federal government for a bailout, which was, after some hesitation from President Ford, granted. In 1980, Lindsay tried one more time to win office when he sought the Democratic nomination for the Senate in 1980, which he came in third. He subsequently served as a guest host on Good Morning America. Lindsay died on December 20, 2000 at the age of 79.

Lindsay’s time as New York City’s mayor is widely regarded as a failure because the city got worse under his watch on crime, fiscal irresponsibility remained the rule, welfare dependency increased, economic conditions worsened, and white flight increased. New York City was, under Lindsay, anything but “Fun City”. His first press secretary Woody Klein’s book on him was titled, Lindsay’s Promise: The Dream That Failed. The best that can be said for Lindsay honestly was that he managed to reduce the severity of unrest in New York City after the assassination of Martin Luther King Jr. His administration was a difficult one full of crises which he was largely not prepared to handle aside from throwing money at them.

References

Chan, S. (2009, February 10). Remembering a Snowstorm That Paralyzed the City. The New York Times.

Retrieved from

https://cityroom.blogs.nytimes.com/2009/02/10/remembering-a-snowstorm-that-paralyzed-the-city/

Fettmann, E. (2000, December 21). A Man for His Times; The City Ultimately Overwhelmed Lindsay. New York Post.

Retrieved from

https://nypost.com/2000/12/21/a-man-for-his-times-the-city-ultimately-overwhelmed-lindsay/

Murphy, J. (2010, September 3). From ‘Fun City’ to Crisis State: John Lindsay and Hugh Carey. City Limits.

Retrieved from

https://citylimits.org/2010/09/03/from-fun-city-to-crisis-state-john-lindsay-and-hugh-carey/

 

A Defense of Chief Justice Roger B. Taney

Before I start here, I want to make something crystal clear: there will be no defense in this post of Dred Scott v. Sandford (1857). This is the least defensible part of Chief Justice Roger B. Taney’s (1777-1864) legacy, it is the worst decision in the history of the Supreme Court, and it was based in historical illiteracy. This is the primary reason the House voted to remove his bust from the Capitol along with that of Confederates. However, I will defend his overall legacy on the court and by extension why his bust should stay. Before I write my defense, I will outline the case against him.

Roger B. Taney - Brady-Handy.jpg

The Case Against Taney

Given the rise of “woke” culture that has its basis in Frankfurt school neo-Marxism, the culture’s devoted adherents want to reexamine and deconstruct American monuments, memorials, culture, and even legal traditions. As part of this, Congress was persuaded to pass legislation that would remove the busts of Confederates as well as Chief Justice Roger B. Taney from the Capitol. Taney’s offenses include his racism, the sort of which was widely held in his day, and especially his ruling in Dred Scott v. Sandford (1857), which ruled that black people were not and had never been citizens of the United States, free or enslaved and struck down the Missouri Compromise limiting slavery. This reflected Taney’s long-held view that blacks lived and worked in the United States by the tolerance of the American people, thus they had privileges rather than rights of citizens.

Taney and his fellow justices had hoped this decision would resolve the controversy of slavery, but instead it inflamed it and resulted in the only resignation on principle in history from the Supreme Court: Justice Benjamin Curtis, the only Whig justice, who wrote an extensive dissent that disputed the historical accuracy of Taney’s citizenship claim and noted that black men could at the time of the Constitution’s ratification vote in five of the thirteen original states, called it quits after the decision. Worse yet, President James Buchanan had applied pressure to the Supreme Court to rule this way and convinced Northerner Robert Cooper Grier to side with the majority to prevent the decision from being thought of as “sectional”. Such influence was highly irregular and would be regarded today as improper.  The 14th Amendment itself was a direct overturning of the Dred Scott decision.

During the Civil War, although Taney didn’t jump ship for the Confederacy, he sympathized with the Southern states in their secession. As noted by Tewell (2016), Taney wrote to former President Franklin Pierce during the war stating, “that a peaceful separation, with free institutions in each section is far better than the union of all the present states under a military government, and a reign of terror preceded too by a civil war with all its horrors”. He blamed President Lincoln and the Republicans for the Civil War and voted against the decision in the Prize Cases, which permitted Lincoln to blockade Southern ports, a vital prerequisite for winning the War of the Rebellion. Taney regarded Lincoln’s war policies generally as unconstitutional. It does seem quite fitting that the punishment for a Chief Justice who engaged in historical illiteracy in his worst ruling would be a removal of his bust from the Capitol.

However, Taney was Chief Justice for a whopping 28 years: 1836 to 1864. There certainly was more that this Professor Snape looking character did than Dred Scott and his reluctance regarding the Civil War, right? Indeed, there was, and it is why I make the case for his bust to stay.

The Case For Taney

While making this case, I want to give a little background on Roger B. Taney himself. He grew up in an aristocratic Maryland family which had owned slaves. Taney himself, however, was not personally favorable to the practice and freed all the slaves he inherited by the 1820s. In 1818, he defended Reverend Jacob Gruber, an abolitionist who was accused of trying to foment a slave rebellion after issuing a strong anti-slavery sermon, and in the process stated, “Slavery…is a blot on our national character…every real lover of freedom confidently hopes that it will be effectually, though it must be gradually, wiped away…every friend of humanity will seek to lighten the galling chain of slavery, and better, to the utmost of his power, the wretched condition of the slave” (Bender). Although originally a Federalist, Taney broke with the party over its opposition to the War of 1812. He eventually came to support Andrew Jackson’s campaigns and after the Petticoat Affair that resulted in him firing almost his entire cabinet, he appointed Taney Attorney General. President Jackson later appointed him Secretary of the Treasury, where he relied directly upon Taney to carry out the demise of the Second Bank of the United States, which he executed with gusto. This led him to be, like Martin Van Buren, one of the people Jackson felt he could trust. In 1836, Jackson rewarded him by nominating him to succeed the late John Marshall as Chief Justice of the Supreme Court. Taney was regarded by Whigs as something of a partisan hack and Senator Henry Clay of Kentucky led the opposition to his confirmation. His confirmation, however, was in one way a political masterstroke: he was the first Catholic to ever sit on the Supreme Court, and this helped win Catholic voters to the Democratic Party. They would be largely unified in affiliation until Roe v. Wade in 1973.

Although pop history and the press condemns him as if his only legacy were Dred Scott, opinions of him from those who have studied the court and those who served with him on the court are drastically different. The late legal scholar Bernard Schwartz ranked Taney the third greatest justice of all time in 1995. Taney served as a counterbalance to the old Federalist justices who were ultra-supportive of property rights. The Jacksonian spirit of the time was, as a Jacksonian editor put it, “We believe property should be held subordinate to man, and not man to property, and therefore that it is always lawful to make such modifications of its constitution as the good of Humanity requires” (Schwartz, 103). This doesn’t sound out of step at all with the views of the modern Democratic Party. Taney established the constitutional concept of police power, which can be employed to limit property rights and held that property rights must be able to be controlled by the public. If many contemporary liberals were not so focused on identity politics, they might even recognize him as an economic progressive for his time. However, Taney tempered his view of public rights and the anti-corporate nature of the Jacksonian Democrats in his some of his most monumental decisions: Charles River Bridge v. Warren Bridge (1837) and Bank of Augusta v. Earle (1839). In the former case, the Charles River Bridge Company had constructed a bridge between Boston and Charlestown in 1785, with a contract of 40 years of toll collection before the bridge was turned over to the state. The legislature expanded this to 70 years in 1792. There was growing public frustration by the 1820s over the continued collection of tolls by the wealthy Charles River Bridge Company and their refusal to make improvements to the bridge. In 1828, the legislature granted the Warren Bridge Company a charter to build a new bridge only 275 yards away from the old one, placing it in direct competition. The Charles River Bridge Company sued, alleging that under Article I, Section 10 of the Constitution this was illegal: “No State shall…pass any Bill of Attainder, ex post facto Law, impairing the Obligation of Contracts…” (U.S. const. art I., § 10). The Warren Bridge Company held that this contract was not exclusive and that the original didn’t explicitly prohibit the construction of a new bridge. Although the case was first considered under Chief Justice John Marshall, the case was delayed for years and during that time he died and Andrew Jackson had appointed three new justices.  Furthermore, the old bridge had closed as the new toll free bridge from the Warren Bridge Company had been constructed.

Taney ruled in favor of the Warren Bridge Company that the contract for the construction of a bridge had not been the exclusive right of the Charles River Bridge Company, while dissenting Justice Joseph Story considered the contract with Charles Bridge to have been implied to be exclusive. The decision was interpreted as a victory for Jacksonian state’s rights advocates while for the Whigs it was interpreted as a loss for property rights. Taney, however, was not as keen as his critics feared that he would tear down the federalism of his predecessor. He tempered it and in some ways he even expanded it. In Augusta, Taney ruled that a state was permitted to prohibit a foreign business from doing business in the state or could regulate said business, but that such conditions must be explicitly stated. Businesses existing in one state were permitted to make contracts and do business in other states. The only dissenter was Jacksonian John McKinley. Had the contrary position been adopted, it would have seriously strained interstate commerce. Through his philosophy which largely upheld Marshall’s jurisprudence while adding a Jacksonian emphasis on public interest, Taney won over many former foes, including Henry Clay, who came to respect his character. Even Benjamin Curtis, who resigned over the decision Taney engineered, thought of him as a “man of singular purity of life and character” (Cotter). Justice Samuel F. Miller, a Lincoln appointee who had initially despised him, reached a similar conclusion about him. Felix Frankfurter credited Taney as the justice “who adapted the Constitution to the emerging forces of modern economic society” (107). Another great Chief Justice, Charles Evans Hughes, who distinctly stood against racism in his time on the court and authored the opinion in the Scottsboro case, concurred with this assessment. He wrote in his ABA article, Roger Brooke Taney: A Great Chief Justice, “It is unfortunate that the estimate of Chief Justice Taney’s judicial labors should have been so largely influenced by the opinion which he delivered in the case of Dred Scott. . . . [T]he Dred Scott cased passed into history as an event pregnant with political consequences of the highest importance, and having a most serious effect upon the prestige of the Court. . . . Nothing could be more unjust than to estimate the judicial work of the days of Taney by a disproportionate emphasis upon the decisions which were called forth by the vexed questions growing out of the institution of slavery and the prospect of its extension. Rather I should like to take this opportunity to recognize the importance services of Chief Justice Taney in setting forth principles that are guiding stars in constitutional interpretation. . . .” (Cotter).

Chief Justice Taney was fundamental in the formation of American constitutional law, yet our newspapers choose to only emphasize his very worst decision, Dred Scott. This says more about contemporary politics than it does about his. It is also worth noting that he opposed the suspension of habeas corpus during the Civil War through his opinion in Ex parte Merryman in 1861, holding that only Congress can suspend habeas corpus. The Lincoln Administration ignored this opinion, but his opinion has attracted support from contemporary legal experts. Praise for his legacy can again be found from Felix Frankfurter, who went on to state about him, “The devastation of the Civil War for a long time obliterated the truth about Taney. And the blaze of Marshall’s glory will permanently overshadow him. But the intellectual power of his opinions and their enduring contribution to a workable adjustment of the theoretical distribution of authority between two governments for a single people, place Taney second only to Marshall in the constitutional history of our country” (Schwartz 108).

Taney’s spot is deserved for his contribution to the development of American jurisprudence. He could have reversed the course of John Marshall to a radical view of state’s rights that would have hindered the development of commerce, but instead he built upon Marshall’s work while adding some alterations of his own. He developed the concept of police power in the name of placing restraints on the power of burgeoning corporations, a stance which progressives could hardly disagree. While I personally would not agree with all his decisions, I acknowledge his contributions and many of his precedents stand to this day. I have written on monuments and memorials before, and a bust to Taney is not meant to celebrate the worst of his career, it is to recognize his contributions to American jurisprudence, for which Dred Scott v. Sandford plays no part today thanks to the constitutional remedy of the 14th Amendment.

References

Bender, B.M. (2018, April 4). America’s Most Infamous Chief Justice: A Profile of Roger B. Taney. Hare & Bell. 3.

https://scholarspace.jccc.edu/cgi/viewcontent.cgi?article=1000&context=hare_bell

Cotter, D. (2019, May 29). Roger B. Taney: One Decision Makes a Legacy, Part II. The National Judicial College.

Retrieved from

https://www.judges.org/news-and-info/reflections-from-the-bench-roger-b-taney-one-decision-makes-a-legacy-part-ii/

Schwartz, B. (1995). Supreme Court Superstars: The Ten Greatest Justices. Tulsa Law Review, 31(1).

Retrieved from

https://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=2025&context=tlr

Tewell, J.J. (2016, October 25). Roger B. Taney Was as Bad as You Think. History News Network.

Retrieved from

https://historynewsnetwork.org/article/164153

U.S. const. art I., § 10

 

The Redemption of Delaware

Delaware - Wikipedia

If Joe Biden wins the presidential election in 2020 he will be the first president from the state of Delaware. His state has had a long and difficult history on racial issues but the contrast between 1860s and Reconstruction Delaware and civil rights era Delaware is tremendous. Delaware had been a slave state, and although most blacks in the state were free by the Civil War, the slave owners in the southern portion of the state held a lot of power and the support of the state’s two leading political families: the Bayards and the Saulsburys. Both were staunch defenders of the institution of slavery. Senator James Bayard Jr., for instance, had represented a group of slave owners suing an abolitionist for helping their slaves escape, which brought the man near bankruptcy. He believed that not only should the South be allowed to secede, but that Delaware should as well. Bayard had backed John Cabell Breckinridge, the pro-slavery Southern Democratic candidate, in the 1860 presidential election. Willard Saulsbury, on the other hand, could be considered a “War Democrat”. His effectiveness, however, was hampered by a drinking problem and he wrote racist treatises on blacks. In the 1860 election, the state voted for Breckinridge and Democrats won big largely through campaigning for slavery and against racial equality.

With Bayard out of the Senate by the vote on abolishing slavery in 1864, Senators George Riddle and Willard Saulsbury voted against. However, Delaware’s At-Large Congressman, Nathaniel Smithers, voted for. After the abolition of slavery, the state’s leadership and voters doubled down on antagonism to equal rights, and the state until the late 19th century. The Saulsbury brothers and the Bayards wielded influence throughout the 1870s and 1880s. However, as the rule of the Saulsburys and Bayards was approaching its end, more and more black residents were moving into the middle class and gaining the vote and Republicans were gaining in power. The racial tensions eased, but segregation remained a reality of life until the 1954 Brown v. Board of Education decision. However, even as early as the 1920s the black vote was proving important: in 1922, Democrat William Boyce defeated Republican House incumbent Caleb R. Layton, with the primary factor behind his defeat being his vote against the Dyer Anti–Lynching Bill as many black voters crossed over to back Boyce.

In 1954, the Supreme Court ruled in Brown v. Board of Education that segregation in schools was unconstitutional. Senator John J. Williams of Delaware stated his opposition to the decision as it was “judicial activism”, but he urged compliance as opposed to leaders in Southern states, who pushed defiance. This was credited with preventing civil disturbances in the state. In a marked contrast to the record of the days of the Civil War and Reconstruction, Delaware’s federally elected officials all voted for the Civil Rights Act of 1957, the Civil Rights Act of 1960, the constitutional ban on the poll tax, the Civil Rights Act of 1964, and the Voting Rights Act of 1965. Williams, however, did vote against the Civil Rights Act of 1968. In that period, their officials were: Republican Sen. John J. Williams (MCI: 95%), Democratic Sen. Joseph Frear (MCI: 63%), Republican Sen. J. Caleb Boggs (MCI: 66%), Republican Rep. Harry Haskell (MCI: 69%), Democratic Rep. Harris McDowell (MCI: 5%), and Republican Rep. William Roth (MCI: 79%).

 

John Rousselot: The Most Successful Bircher

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Although the 1960 election was a loss for Richard Nixon against John F. Kennedy, House Republicans made gains in Congress, a rebound from the disastrous 1958 midterm elections. One of the victors was John Rousselot of San Marino, California, director of a successful public relations firm. Rousselot quickly became regarded as one of the most conservative members of Congress and was one of two at the time who were members of the John Birch Society. From educational television to public works, he opposed just about everything John F. Kennedy was for. Although Rousselot had suffered polio in childhood and walked with a limp as a result, it didn’t stop him from playing on the Congressional baseball team. He was a rising star in the conservative movement, but his vigorous defense of the John Birch Society and redistricting cost him reelection in 1962. He subsequently served as the organization’s director of public relations and in 1964 he released a record titled “The Third Color”, in which he argued that the civil rights movement had been thoroughly infiltrated by communists…the line the John Birch Society was pushing at the time. In 1970, Congressman Glen Lipscomb died of cancer and Rousselot ran to fill the vacancy, easily prevailing in the conservative district. Through his friendly and good-natured personality, he was able to gain more influence in Congress and in 1974 he helped his friend, liberal Republican Pete McCloskey of San Mateo, California, win renomination. Rousselot pushed for balanced budgets, deregulation, and reducing the growth of the food stamp program while in Congress.

In 1979, Rousselot left the John Birch Society as he was mulling a Senate campaign, citing both Robert Welch’s leadership claim that Dwight Eisenhower was a communist and that he didn’t want to be viewed as being beholden to any organization. He ultimately opted not to challenge Democrat Alan Cranston the following year, but he managed to piss off a powerful political actor: Phil Burton. In 1980, Rousselot recruited a strong candidate who came close to defeating Phil’s brother, John, in his San Francisco district. In retaliation, Phil Burton, who played a major role in California redistricting, had Rousselot redistricted into a Democratic Latino district. Although he valiantly tried to hold on to the seat in the 1982 midterms, including having his wife deliver a speech in Spanish, he was defeated. President Reagan subsequently tapped Rousselot to be one of his advisors. He subsequently served as head of the National Council of Savings Institutions. In 1992, Rousselot attempted a comeback, but his connections with convicted fraudster Charles Keating harmed him as he was linked to the industry’s collapse in 1987 and he lost the GOP nomination.

Rousselot died in 2003, and he stands ultimately as the most successful politician who was in the John Birch Society. John Schmitz served less than two full terms in Congress, Edgar Hiestand served ten years in Congress, and Larry McDonald, who served eight years as a Democrat from Georgia, was on KAL 007, an airplane shot down by the Soviets the year he became chair of the society.

References

John H. Rousselot, RIP. (2003, May 23). Human Events.

Retrieved from

https://humanevents.com/2003/05/23/john-h-rousselot-rip/

Congressman Mosher’s Prescient Warning

In the 1960s and 1970s, the presence of moderate to liberal Republicans was far greater in the Republican Party than today, and one of these people had an important warning about our future.

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Republican Charles Mosher (1906-1984) was elected to Congress from Ohio’s 13th district (southwest of Cleveland) in 1960. The district had a long history of Republican affiliation: from 1919 to 1977 Democrats only held the seat for six years, but Mosher’s record in the House is reflective of the change the district underwent during his time. He was in his first three terms moderately conservative. Mosher was notably both a member of the NAACP and the ACLU, uncommon for a Republican. In the late 1960s he began moving in a more liberal direction, becoming staunchly liberal on social issues, strongly opposed to Nixon’s Vietnam War policies, and moderately liberal on economic issues. In his first four terms (1961-69), Mosher had averaged a 65% on the MC-Index, whereas in his last four terms (1969-77), he averaged a 27%. The times were so different for the parties that he wasn’t even the most liberal Republican Congressman from Ohio – that was Charles Whalen. Mosher supported President Ford on more issues than Nixon as he was on good personal terms with the former. Overall, his lifetime MC-Index score was a 46%. Mosher was also the first Republican to vote against Vietnam War appropriations in 1967 and considered his greatest regret voting for the Gulf of Tonkin Resolution. However, what I find most notable about this man is what he said at the end of his career that carries a great deal of relevance today.

In 1976, Mosher opted to retire, not wanting to stay in office after the age of 70. Having served as the ranking Republican on the Science and Technology Committee, he came to realize what lay ahead in the future. Mosher found that Congress had more information at its disposal but was less and less able to make decisions. As he stated in his last interview as a representative, “Perhaps we are confused by the facts, perhaps we are so much more aware of the complexities of the world that it makes us indecisive – much more than we were a few years back when we flew by the seat of the pants” (The Washington Post). Mosher also issued a warning about the increased amount of information, stating that people find it difficult to process this increased flow of information that people would rather choose to look for simple answers than confront the complexities the information tells us. Although he observed this forty-four years ago and he has been dead for thirty-six years, the phenomenon he speaks of is truer than ever today. We see more and more polarization fueled by people using the vast pool of information and connection who seek out other like-minded people and views. It thus becomes harder to craft consensus policies.

Mosher was succeeded easily by liberal Democrat Don Pease, who won 66% of the vote. The district had changed substantially in its politics. In 1982, the 76-year old Mosher was awarded a master’s degree in government from Oberlin College, becoming the oldest person to be awarded a degree from the university. His thesis, in keeping with his thinking about the longer run future, was that representatives should be elected to four-year terms and senators eight so they can think more about policy than reelection.

References

Ex-Rep. Charles Mosher of Ohio. (1984, November 17). The New York Times.

Retrieved from

https://www.nytimes.com/1984/11/17/obituaries/ex-rep-charles-mosher-of-ohio.html

Smith, J.Y. (1984, November 18). Former Rep. Charles Mosher of Ohio Dies. The Washington Post.

Retrieved from

https://www.washingtonpost.com/archive/local/1984/11/18/former-rep-charles-mosher-of-ohio-dies/3047446a-9ed2-4990-b200-ce8bf9e882c5/

 

Rebecca Latimer Felton: A First and a Last

U.S. Senate: Rebecca Latimer Felton (D-GA)

On September 26, 1922, Senator Thomas E. Watson of Georgia, a fiery populist and racial demagogue, died suddenly. Governor Thomas Hardwick was eager to return to the Senate, but there was a problem: he had voted against women’s suffrage as a senator and his state had been one of two to create rules that prevented women from voting in the 1920 election. He realized he needed to give a nod to the newly enfranchised white women of his state. On October 3rd, Hardwick appointed Rebecca Latimer Felton (1835-1930) to fill the vacancy. Felton was an 87-year old suffragist who had actively supported the career of her late husband, Congressman William H. Felton, and she was the most prominent female voice in Georgia politics.

During William Felton’s time in the state legislature and Congress from 1875 to 1881, she was his right hand…constituents bragged they were getting two Congressmen for the price of one as she would even draft legislation. In 1894, William Felton ran for Congress again as a Populist but lost. Rebecca Felton was outspoken in numerous reform causes of her day, including the end of the practice of convict leasing, which leased prisoners to private companies that in practice was indentured servitude with substandard conditions that at times were even worse than slavery. The practice was abolished in the state in 1908. Felton also succeeded in her advocacy for statewide prohibition as it was enacted in the same year and was a staunch advocate for public schooling.

While Rebecca Felton called for reform in a number of social areas for Georgia, she was also a staunch racist. Having been a slave owner before the Civil War, she believed in a strict order of social and legal control of the black population to be enforced with lynchings if necessary. Felton defended the barbaric 1899 lynching of Sam Hose, a black man who was tortured and mutilated before being burned at the stake. He had been accused of murdering his employer and raping his wife (the former was the product of an employment dispute and the latter was false), and Felton, shrugging the brutality of it off, thought the lynching justified given the nature of the accusations. She also would harbor no questioning of the Jim Crow system and ultimately was able through a public outrage campaign to force the resignation of Professor Andrew Sledd of Emory University for doing so.

Felton’s appointment was a first, but it was symbolic as she only served for a day when the Senate wasn’t in session and she regarded it as a joke. It was also, strangely enough, a last. She was the last member of either House to have owned slaves. The first female senator to be elected would be Hattie Caraway of Arkansas, who would vote and contribute to legislation. Hardwick’s symbolic move ultimately didn’t work as he was defeated by Walter George, the interim senator who succeeded Felton. He also lost reelection as Georgia’s governor due to his opposition to the KKK.

References

Arnold, E.T. (2009). What virtue there is in fire: cultural memory and the lynching of Sam Hose. Athens, GA: The University of Georgia Press.

Parker, D.P. (2003, May 14). Rebecca Latimer Felton (1835-1930). New Georgia Encyclopedia.

Retrieved from

https://www.georgiaencyclopedia.org/articles/history-archaeology/rebecca-latimer-felton-1835-1930

Rebecca Latimer Felton: Activist, Author, Journalist, Politician. Georgia Women of Achievement.

Retrieved from

https://www.georgiawomen.org/rebecca-latimer-felton

 

The Rise and Fall of Rep. Marion Zioncheck

ZIONCHECK, Marion Anthony | US House of Representatives: History ...

In 1932, many young Democrats were elected to Congress with the spirit of change in their minds. One was Marion Zioncheck (1901-1936), a brilliant and charismatic young attorney who was the first Democrat to win the Seattle-based 1st district of Washington, defeating decisively the district’s former Congressman, John F. Miller. A spirited radical, he was a workhorse and his constituents were appreciative: he improved his share of the vote in 1934. Zioncheck played a leading role in the Washington Commonwealth Federation, a socialist pressure group within the Democratic Party that would eventually become communist-dominated. He was an enthusiastic backer of the New Deal but occasionally disagreed with the Roosevelt Administration: in 1935 he voted against extending the National Industrial Recovery Act likely on the grounds that it created cartels given his views. However, in his second term the positive perception of him among his constituency would change.

In that early morning of New Year’s Day 1936 his neighbors complained to the police about the noise of the party at Zioncheck’s home and they found him drunk making calls with the apartment building’s switchboard. He was not the same after that party and became “a maniac – what the newspapers of the day called a clown, a playboy, a “bad boy” – and a figure of scorn, hilarity and eventually pity” (Conroy). His behavior was bizarre in and out of the House.

While speaking before Congress, Zioncheck denounced James A. Farley, the Postmaster General of the United States, who oversaw the distribution of Democratic Party patronage, as incompetent and stupid. The Supreme Court was for him a collection of “old fossils” or “corporation lawyers” (Hill).

In May, Zioncheck married a 21-year old woman after knowing her for a week. When the couple went to Puerto Rico for their honeymoon, he caused trouble. Zioncheck, who had become notorious for getting speeding tickets, was involved in two car crashes. He was also the cause of an incident that led to a riot in which he was pelted with rocks by students and it had to be put down by the national guard. Zioncheck’s outlandish behavior also caused an irate man to challenge him to a duel. He was urged to leave for the Virgin Islands in which he lapped soup from his bowl like a dog, crafted a concoction of hair tonic and rum, and was involved in yet another crash…the cause was him biting his driver’s neck.

After returning from their honeymoon, Zioncheck continued to cause trouble: he threw a glass at a man in a Harlem nightclub and the next morning he served drinks to reporters at his apartment. He would later in the day remove his shoes and frolic in the Rockefeller Center’s fountain. He and his new wife, Rubye, had also done so in Washington D.C. On his return to Washington, Zioncheck got into a dispute with his elderly landlady over the awful state of his apartment which resulted in him dragging her out of her apartment and tossing her onto the street, resulting in her going to the hospital for a hip injury. He remained at his apartment, unperturbed, and speculated that his landlady was probably a communist.

On May 31st, Zioncheck desperately searched for his wife, who had walked out on him on the night of the 30th after a heated argument. In the process, he crashed into his friends’ homes, searched hotels, and knocked on doors of acquaintances. He sped around Washington, running red lights, and almost running over numerous pedestrians. On June 1st, he drove on the White House lawn and dropped off empty beer bottles and ping pong balls as gifts for President Roosevelt while seeking the arrest of Vice President John Nance Garner. He was shortly after finally arrested by the police for lunacy. Zioncheck was sent to Gallinger hospital where he escaped but was recaptured and transferred to a private hospital, from which he also escaped and got a ride to D.C. from a none-the-wiser motorist. Zioncheck then figured it best to return to Seattle to avoid another arrest. There, he vacillated as to whether he wanted to leave Congress given his deteriorating standing in his district and delivered a speech, “Who’s Crazy”, to address the media coverage of his escapades.

On August 7th, 1936, Zioncheck and his wife were to attend a banquet and as she waited in the car for him, his body plummeted to the street right before her eyes from the fifth floor window, and on his body was a note that read: “My only hope in life was to improve the condition of an unfair economic system that held no promise to those that all the wealth of even a decent chance to survive let alone live” (Corsicana Daily Sun). Although the cause of death was ruled a suicide, there were family members who believed he was pushed as they didn’t want to believe that he had intended to end his life. Zioncheck had been unable to cope with the stresses of his condition and the level of work that he had demanded of himself. His friend and successor, Warren Magnuson, gave a speech in his memory, describing him thusly, “He was the most brilliant of our young Democrats, passionately devoted to the idea of leadership. He felt the corporate structure must be made amenable to community spirit. He was opposed to the application of force by an armed minority. He believed the days of Cain and the exploitation of neighbors must give way to the Golden Rule. Marion felt too profoundly and too intensely, a heavy responsibility to his fellow man. These are my impressions and recollections of our dead comrade. I give them to you with only one hope – that we shall continue together where he left off” (Scates, 58). Magnuson would indeed carry on and prove far more successful: he would after four terms be elected to the Senate, where he would serve until 1981.

References

Conroy, S.B. (1989, January 29). The Hellion of Harvard. The Washington Post.

Retrieved from

https://www.washingtonpost.com/archive/lifestyle/1989/01/29/the-hellion-of-harvard-hall/a8decc1c-e602-4758-a4d2-81953dd40a48/

Hill, R. (2015, April 26). The Congressman From Crazy Town: Marion Zioncheck of Washington. The Knoxville Focus.

Retrieved from

http://knoxfocus.com/archives/ray-hills-archives/congressman-crazy-town-marion-zioncheck-washington/

Rep. Zioncheck is Arrested on Lunacy Charge. (1936, June 1). The Evening Times (Sayre, Pennsylvania).

Retrieved from

https://www.newspapers.com/clip/8169782/rep-zioncheck-is-arrested-on-lunacy/

Rep. Zioncheck is Killed in Dive From Five-Story Window: Jumped Quickly. 1936, August 8). Corsicana Daily Sun (Corsicana, Texas).

Retrieved from

https://www.newspapers.com/clip/8168757/jumped-quickly/

Scates, S. (1997). Warren G. Magnuson and the shaping of twentieth-century America. Seattle, WA: University of Washington Press.

Students Stone U.S. Congressman. (1936, May 14). The Ottawa Journal.

Retrieved from

https://www.newspapers.com/clip/8167207/students-stone-us-congressman/

 

The Criminalization and Re-Legalization of Gold Ownership

 

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On November 8, 1932, the voters of the US voted for a change…and change they would get in spades. One of these was the beginning of the end of the US emphasis on gold.

The Criminalization of Gold Currency

The stated concern by the Roosevelt Administration was that economic recovery was being hindered by hoarding of gold by individual owners. Thus, on April 5, 1933, just a month after he had been sworn into office, FDR issued Executive Order 6102, which forbade “the hoarding of gold coin, gold bullion, and gold certificates within the continental United States”, with penalties up to $10,000 in fines and up to ten years imprisonment. Exemptions were made for jewelry, gold fillings, coins totaling $100 in value, and recognized collections. Owners had until May 1st to give the federal government all but a small portion of their gold in exchange for $20.67 ($408 in 2019) per troy ounce. Although this was the official market rate, it was below what it was trading for at the time. Along with the order, two laws were passed further cementing the Roosevelt Administration’s policies on gold.

The first was the Gold Clause Resolution of 1933, which took the domestic United States off the gold standard by not only prohibiting gold clauses in future contracts but invalidating them in already existing contracts. Thus, creditors could no longer demand payment in gold. The second was the Gold Reserve Act of 1934, which required all gold held by the Federal Reserve to be transferred to the U.S. Treasury, barred the exchange of gold for currency by the Treasury, and gave the president the power to change the value of gold by proclamation. After passage of this act, Roosevelt increased the price of gold from $20.67 per troy ounce to $35 to stimulate inflation, a 69% increase in the value. The federal government profited while the private gold owners were forced to sell at a compromised price. Inflation also served to help many farmers who were in debt and their plight as well as the potential political consequences troubled FDR greatly, writing “if we continued a week or so longer without having made this move (Gold Reserve Act) on gold, we would have had an agrarian revolution in this country” (Dallek, 174). Indeed, the currency debates of old were fundamentally a conflict of creditors and debtors. However, Roosevelt’s critics as well as economist John Maynard Keynes were of the belief that his manipulation of gold prices was being done recklessly and not on an economic basis. This is confirmed by an account of his Secretary of the Treasury Henry Morgenthau, when one morning Roosevelt told him that the price of gold would be increased by 21 cents. When he asked why, Roosevelt responded, “Because ‘three times seven’ is a lucky number” (Dallek, 174).

Prosecutions and Legal Battles

Executive Order 6102 didn’t last long itself as a legal challenge to it brought its defeat on a technicality: Judge John M. Woolsey ruled that the order was only signed by the president, and not the Secretary of the Treasury as legally required. Thus, two new orders, 6260 and 6261, were issued. Congress’s Gold Reserve Act of 1934 ratified them.

Numerous individuals and companies were prosecuted for their failure to give gold to the government at a loss. Among the prosecutions were of a diamond and jewelry merchant in San Francisco, the father and son owners of a refining company, and a resident of Sutter Creek, California, convicted of holding 78 ounces of gold. With several cases going before the Supreme Court, they were bundled into one as the Gold Clause Cases. Legal challenges to gold seizures ended in 1935 when the Supreme Court ruled 5-4 that they were all constitutional. Had the Supreme Court ruled against Roosevelt, he was prepared to defy it as Andrew Jackson had defied the Supreme Court on Indian removal.

The Legalization of Gold

In 1964, the first of a series of actions loosening the federal government’s control over gold was enacted with the legalization of private ownership of gold certificates, but they were not redeemable in gold. On August 15, 1971, President Nixon fully took the United States off the gold standard when he stopped pegging the dollar to the price of gold, which served to eliminate any obligation of the U.S. to pay its international obligations in gold. This finalized U.S. currency becoming completely fiat, but it also severely undercut the strength of the arguments for continuing making gold illegal to own and the prohibition of gold clauses in contracts. Some of the newer members of Congress thought it was time for this prohibition to end, most notably Phil Crane (R-Ill.). Crane was a rising star in the conservative movement and was often at the forefront of conservative initiatives in the 1970s. In 1973, his amendment to end the prohibition on gold ownership almost passed the House, losing by one vote. The next year, however, Crane managed to tack on a gold legalization resolution to a foreign aid bill, which was ultimately signed into law by President Ford intact, private ownership of gold becoming legal on December 31, 1974. Gold clauses, however, remained illegal. Enter Jesse Helms.

The battle for gold ownership had been won, but the battle for restoring gold clauses had begun. Although Crane worked on this one too in the House, the credit goes most to Senator Jesse Helms (R-N.C.). He spearheaded this effort and again, it was achieved by tacking the legalization on as an amendment, authored by the senator himself. This time it was to an otherwise routine and non-controversial bill in 1977.

In 1980, legislation passed to create a committee to examine the idea of resuming the gold standard, but the committee ultimately demurred, instead seeking scrutiny and reform of the Federal Reserve. However, a minority report, with Rep. Ron Paul (R-Texas) as one of its authors, called for a complete return to the gold standard. Gold confiscation and the abrogation of gold clauses in contracts is unlikely to occur again given that the United States has maintained a fiat currency. However, should the gold standard be restored and another economic crisis befalls us, such policies could return under a Democratic administration.

References

Dallek, R. (2017). Franklin D. Roosevelt: a political life. New York, NY: Penguin Books.

Ganz, D.L. (2011). The essential guide to investing in precious metals: how to begin, build and maintain a properly diversified portfolio. Iola, WI: Krause Publications.

Invalidation of the Gold Clause. CQ Researcher.

Retrieved from

https://library.cqpress.com/cqresearcher/document.php?id=cqresrre1933052900

Ledbetter, J. (2017). One nation under gold: how one precious metal has dominated the American imagination for four centuries.  New York, NY: Liveright Publishing Corporation.

Magliocca, G.N. (2012, October 17). The gold clause cases and constitutional necessity. Florida Law Review, 64(5).