Part One: ELECTION LAW — How Did We Get Here

by Jacques C. Condon

Part one, with this and other posts raising issues worth considering in advance of the upcoming Presidential election.

GETTING HERE

As the first Tuesday following the first Monday in November approaches — what we call national election day — and the talking-head-debate intensifies over candidates, politics and what is right/wrong with the American system of governance, there is a missing piece to the debate — context — that is seldom discussed, or understood.

Indeed, if the average voter dislikes the candidates and the election process (something I hear a lot), it’s time to take a step back and look at the big picture question of how we got here.

In 2016, I wrote a 6-part series on “election law” for the Marquette Law School Blog — that series has now been updated here, for 2020, although, perhaps not surprisingly, not much has changed.

So in the next few posts, the goal then remains today: answering at least part of a contextual question of our system of government, our election process and, hopefully, a little history to evaluate and consider in your next candidate-debate.

TESTING YOUR KNOWLEDGE

It begins with a test.

Poll the average American citizen. Ask if they heard of the Declaration of Independence. Most would answer yes. The citizen might even know the year and date — July 4, 1776.

Then ask the same citizen when the Constitution of the United States was adopted (or, per its language, was ratified by the States). You’ll likely get a blank stare, an “I don’t know”, or a guess — likely July 4, 1776.

What is your guess. If you guess July 4 or any year, you’d be wrong.

The correct answer: June 21, 1788. A gap of nearly 12 years.

A 12-YEAR GAP

So what happened in the 12-years between a declaration of independence and the document that we now understand as the blueprint of American governance?

One big thing was war.

The Revolutionary War to be exact. The war began turning in the American’s favor in 1777-1778. In 1783, the Treaty of Paris ended the conflict with Great Britain, recognizing American independence.

Once the war was over, the country then was faced with the challenge of deciding, now what.

The “now what” question of the late eighteenth century was answered, initially, by the Articles of Confederation.

Colonial-day committees were not new. Indeed, there had been pushes for “constitutional” committees for years leading up to 1776 (as well as remnants throughout the States for years before).

So, in 1776, a committee was appointed to begin drafting, The articles were then debated for a year. By late 1777, an approved version was sent to the states for ratification. All thirteen states were required to ratify the articles — this took another 3+ years.

Of course, time did not stop while waiting for ratification; in practice, the articles were in use prior to ratification.

The articles were a necessary step. They helped direct the Revolutionary War, legitimize the beyond-border-diplomacy effort, and deal with Native American relations.

The “de facto” system of government served an outline on big-ticket items of the time.

TIME REVEALS FLAWS

Unfortunately, the governmental outline proved ineffective, over time.

The primary problem with the Articles of Confederation was the state-first focus.

Under the articles, the state-first focus meant that the states retained sovereignty over governmental functions not specifically relinquished to the national government; in other words, the Articles of Confederation were a State-first, Federal-second plan.

You can see how this would happen. The declaration of independence was a declaration in broad-based and pointed language on the many (and their were many) grievances against the King of England. The states had no intention of recreating a monarchy.

But by drafting so-far away from a central monarch, the American blueprint revealed significant flaws.

The States were without a mechanism to compel other States to comply with requests for troops, or funding. The Confederation Congress had no power to enforce attendance by state-officials.

And the national government, to the extent ordained by the “confederated” States, proved intractably poor, figuratively and economically. It needed an army. The country needed to build trust with other nation-states. The government needed money.

The confederacy of states lacked the necessary powers of government to survive as a nation-state.

TIME TO RE-BOOT GOVERNMENT

So it was that, before this whole thing grew too much worse (and it was on its way), America’s founding fathers decided to meet and discuss.

They did so multiple times, before converging upon Philadelphia in May of 1787, for a Constitutional Convention.

And the first question they asked themselves was one that would guide all other discussion: did they work with what they had (i.e. the articles) or begin whole cloth (i.e. something new)?

This question, and what happened in the Summer of 1787, is the subject of my next post.

The Constitutional Conventions, decades in the making, full of some of the most outspoken and brightest minds in the land, presented a contrast in styles and ideals that formed the very fabric for the political climate we have today.

To be sure, today’s political climate was not that of 1787, but the compromised solution of that time deserves attention when considering the election debate of today.

The Constitutional Convention — yet another piece of history to consider in how we got here — and the subject of my next post, “The ‘united’ United States of America”.

 

Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases ranging on everything from sports and entertainment to local-level government action.