Wednesday, February 6, 2013

Foley on Hayes, Tilden and Samuel Randall

Edward B. Foley, Ohio State University College of Law, has posted Virtue Over Party: Samuel Randall's Electoral Heroism and Its Continuing Importance.  Here is the abstract:
Samuel Randall (Library of Congress)
This keynote address for the symposium on “Foxes, Henhouses, and Commissions: Assessing the Nonpartisan Model in Election Administration, Redistricting, and Campaign Finance,” at UC Irvine on September 14, 2012 has three parts. First, it explains why institutional reform, while necessary, is not by itself sufficient to achieve impartial governance of the electoral process in the public interest. Instead, institutional reform must be supplemented by an adequate measure of nonpartisan political virtue, in pursuit of the public interest, on behalf of elected and appointed officials responsible for the governance of the electoral process. Second, to illustrate this kind of electoral virtue, the middle (and main) part of this essay tells the largely forgotten — but highly significant — story of Samuel Randall’s conduct as Speaker of the U.S. House of Representatives on March 1, 1877, at the crucial climactic moment of the disputed Hayes-Tilden presidential election. As eyewitnesses understood, Randall’s resistance to hardliners within his own party averted the risk that the congressional counting of Electoral Votes would not be complete for the March 4 deadline for inaugurating the new president. Moreover, if March 4 had arrived with both Hayes and Tilden claiming the authority of Commander-in-Chief based on different interpretations of the constitutional consequences of an incomplete Electoral Count, the nation would have suffered a genuinely severe constitutional crisis. Therefore, Randall’s nonpartisan conduct to prevent the possibility of that constitutional crisis serves as an exemplary “profile in electoral courage,” to which contemporary and future politicians can aspire (if they, too, are put in a position where they must choose between partisanship and the public good when making a decision about the governance of the electoral process). The third (and final) part of the essay briefly explores how civics education, both in schools and in the culture more broadly, can invoke this and similar examples of electoral virtue, in an effort to cultivate an atmosphere in which other “profiles in electoral courage” are more likely to occur