OCTOBER SURPRISE – The Election Law Debate

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

PART ONE: October Surprise

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.

The first “October Surprise” can be traced to the late-Nineteenth Century, during the James Garfield race, when a mysterious (and ultimately fake) letter attempted to sway voters.

But I have my own surprise: today’s election law debate is a debate that has been in-play for over two centuries; turns out the politics of today, while different, are surprisingly similar;

So in the next few posts, enjoy part of contextual question of our election process, our system of government, and, hopefully, a little history to evaluate and consider in your next candidate-debate come Tuesday.

Testing Your Knowledge

And it begins with a test.

If you polled the average American citizen, asking if they heard of the Declaration of Independence, most would answer yes. The citizen might even know the year and date — July 4, 1776.

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

And if you guess July 4 or any year, you’d be wrong.

The correct answer: June 21, 1788. A gap of nearly 12 years. (And technically the constitution was “ratified”, not adopted – but let’s not get too technical here.)

A 12-Year Gap

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

The one big thing was a war.

The Revolutionary War to be exact. The war began to turn 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, then became the question: now what?

The “now what” question of the late eighteenth century was answered, initially, by the Articles of Confederation. The Articles had been around for many years by 1783. In fact, in 1776, a committee was appointed to begin drafting; the articles were then debated for a year until, 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 as, 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 from the Articles of Confederation proved ineffective, over time.

The primary issue 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.

So what’s the problem? Well, the problem was the States were without a mechanism to compel other States to comply with requests for either troops or funding. The Confederation Congress had no power to enforce attendance by state-officials.

Moreover, the national government, to the extent ordained by the “confederated” States, was poor both figuratively and economically. It needed an army. It needed to build trust with other nation-states. It needed money. It lacked the necessary powers of government.

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.

Did they work with what they had or begin whole cloth?

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 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, “Hot Mess – The Election Law Debate”, found here:  https://www.condon-law.com/hot-mess-election-law-debate/ ‎

 

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.