Yes, Presidential Elections Have Consequences

Chief Justice of the Supreme Court John Marshall is featured on this Fr. 375 Serial Number One $20 1891 Treasury Note, which sold for $114,000 at an April 2018 Heritage auction.

By Jim O’Neal

In theory, there is no mystery or debate regarding the intention of the Founding Fathers in the selection of members to serve on the Supreme Court.

The Constitution crisply explains, in the second paragraph of Article II, Section 2, that the president shall nominate, and by and with the advice and consent of the Senate, shall appoint judges of the Supreme Court. This provision means exactly what it says and is unchanged by any modifications since its adoption. That includes a simple majority vote of the Senate to grant such consent, to reject or refuse to take action on the presidential nominee.

One idea discussed, but not acted upon, was Benjamin Franklin’s explanation of the Scottish mode of appointment “in which the nomination proceeded from the lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves” – a uniquely clever way to eliminate superior competition.

What has changed is the adoption of the “nuclear option” in 2017, which invoked cloture to end filibustering in the Judicial Committee and forced a vote of the committee either up or down on making their recommendation to the full Senate. House Majority Leader Harry Reid had used it to great effect for all legislation that he allowed to the floor while the Democrats were in the majority. Republicans expanded it to include Supreme Court nominees after they regained the majority in 2016. Neil Gorsuch was elected to the Supreme Court under this new rule with a 54-45 Senate vote, picking up three anxious Democrat votes in the process. It’s widely assumed that current nominee Judge Brent Kavanaugh will be elected to the Supreme Court following a similar path since his opponents appear helpless to stop him.

As President Obama once explained, in not too subtle fashion, “Elections have consequences.”

It now seems clear that the Founding Fathers did not foresee that political parties would gradually increase their influence and that partisan considerations of the Senate would become more prominent than experience, wisdom and merit. This was magnified in the current effort to stymie a nomination when the opposition announced they would oppose any candidate the Chief Executive chose. Period. It may not seem reasonable on a literal basis, but it has gradually become routine and will only get worse (if that’s still possible).

It may astonish some to learn that no legal or constitutional requirements for a federal judgeship exist. President Roosevelt appointed James F. Byrnes as an associate justice in 1941 and his admission to practice was by “reading law.” This is an obsolete custom now – Byrnes was the last to benefit – that proceeded modern institutions that specialize in law exclusively. In Byrnes’ case, it’s not clear that he even had a high school diploma. But he was a governor and member of Congress. He resigned 15 months later (the second shortest tenure) in order to become head of the Office of Economic Stabilization and was a trusted FDR advisor who many assumed would replace Vice President Henry Wallace as FDR’s running mate in 1944. That honor went to the little-known, high-school educated Harry Truman, who would assume the presidency the following year when FDR died suddenly.

Thomas Jefferson never dreamed the Supreme Court would become more than just a necessary evil to help balance the government in minor legal proceedings and would be more than astonished that they now are the final arbiter of what is or isn’t constitutional. The idea that six judges (who didn’t even have a dedicated building) would be considered equal to the president and Congress would have been anathema to him.

However, that was before he met ex-Secretary of State John Marshall when he became Chief Justice of the Supreme Court and started the court’s long journey to final arbiter of the Constitution when he ruled on Marbury v. Madison in 1803. There was a new sheriff in town and the next 40 years witnessed the transformation of the court to the pinnacle of legal power. They even have their own building thanks to President William Howard Taft, who died two years before it was complete. Someday, Netflix will persuade them to livestream their public discussions for all of us to watch, although I personally prefer C-SPAN to eliminate the mindless talking heads that pollute cable television.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chair and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

National Debt on Automatic Pilot to More Growth

A letter by President George W. Bush, signed and dated July 4, 2001, sold for $16,730 at an April 2007 Heritage auction.

By Jim O’Neal

In May 2001 – just 126 days after President George W. Bush took office – Congress passed his massive tax proposal. The Bush tax cuts had been reduced to $1.3 trillion from the $1.65 trillion submitted, but it was still a significant achievement from any historical perspective. It had taken Ronald Reagan two months longer to win approval of his tax cut and that was 20 years earlier.

George W. Bush

Bush was characteristically enthusiastic about this, but it had come with a serious loss in political capital. Senator James Jeffords, a moderate from Vermont, announced his withdrawal from the Republican Party, tipping control of the Senate to the Democrats, the first time in history that had occurred as the result of a senator switching parties. In this instance, it was from Republican to Independent, but the practical effect was the same. Several months later (after the terrorist attacks on the World Trade Center and the Pentagon), there was a loud chorus of calls to reverse the tax cuts to pay for higher anticipated spending.

Bush had a counter-proposal: Cut taxes even more!

Fiscal conservatives were worried that there would be the normal increase in the size and power of the federal government, lamenting that this was a constant instinctive companion of hot wars. James Madison’s warning that “A crisis is the rallying cry of the tyrant” was cited against centralization that would foster liberal ideas about the role of government and even more dependency on the federal system.

Ex-President Bill Clinton chimed in to say that he regretted not using the budget surplus (really only a forecast) to pay off the Social Security trust fund deficit. Neither he nor his former vice president had dispelled the myth about a “lock box” or explained the federal building in Virginia that had been built exclusively to hold government IOUs to Social Security. In reality, they were simply worthless pieces of scrip, stored in unlocked filing cabinets. The only changes that had ever occurred with Social Security funds were whether they were included in a “unified budget” or not. They had never been kept separate from other revenues the federal government received.

But this was Washington, D.C., where, short of a revolution or civil war, change comes in small increments. Past differences, like family arguments, linger in the air like the dust that descends from the attic. All of the huge surpluses totally disappeared with the simple change in the forecast and have never been discussed since.

Back at the Treasury Department of 15th Street, a statue to Alexander Hamilton commemorates the nation’s first Treasury Secretary, a fitting honor to the man who created our fiscal foundation. But on the other side stands Albert Gallatin, President Thomas Jefferson’s Treasury Secretary, who struggled to pay off Hamilton’s debts and shrink the bloated bureaucracy he built.

Hamilton also fared better than his onetime friend and foe, James Madison. The “Father of the Constitution” had no statue, no monument, no lasting tribute until 1981, when the new wing of the Library of Congress was named for him. This was a drought that was only matched by John Adams, the Revolutionary War hero and ardent nationalist. It was only after a laudatory biography by David McCulloch in 2001 that Congress commissioned a memorial to the nation’s second president.

Since the Bush tax cut and the new forecast, the national debt has ballooned to $20 trillion as 9/11, wars in Iraq and Afghanistan, and the 2008 financial meltdown produced a steady stream of budget deficits in both the Bush and Barack Obama administrations. The Donald Trump administration is poised to approve tax reform, amid arguments on the stimulative effect on the economy and who will benefit. In typical Washington fashion, there is no discussion over the fact that the national debt is inexorably on automatic pilot to $25 trillion, irrespective of tax reform. But this is Washington, where your money (and all they can borrow) is spent almost with no effort.

“Just charge it.”

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chair and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

Harvard-Educated Adams Cracked Down on Non-Citizens, Free Speech

An 1805-dated oil on canvas portrait of John Adams, attributed to William Dunlap, sold for $35,000 at a May 2017 Heritage auction.

By Jim O’Neal

When Barack Obama was sworn in on Jan. 20, 2009, he became the eighth president to have graduated from Harvard, which has educated more U.S. presidents than any other university. Yale is second with five, with George W. Bush counting for both Yale and Harvard (where he earned an MBA).

The first of the “Harvard Presidents” goes all the way back to 1796, when John Adams narrowly defeated Thomas Jefferson 71 to 68 in the electoral vote count. It was the only election in history in which a president and a vice president were elected from opposing parties.

However, Jefferson bounced back four years later in a bitter campaign characterized by malicious personal attacks. Alexander Hamilton played a pivotal role in sabotaging President Adams’ attempt to win a second term by publishing a pamphlet that charged Adams was “emotionally unstable, given to impulsive decisions, unable to co-exist with his closest advisers, and was generally unfit to be president.”

When all the votes were counted in 1800, Adams actually ended up third behind both Jefferson and Aaron Burr (who eventually became vice president). John and Abigail Adams took the loss very emotionally and it alienated their relationship with Jefferson for 20-plus years. Adams departed the White House before dawn on Inauguration Day, skipped the entire inauguration ceremony and headed home to Massachusetts. The two men ultimately reconciled near the end of their lives (both died on July 4, 1826).

Adams had been an experienced executive-office politician after serving eight years as vice president for George Washington. However, his four years as president were controversial. It started when the Federalist-dominated Congress passed four bills, collectively called the Alien and Sedition Acts, which President Adams signed into law in 1798. The Naturalization Act made it harder for immigrants to become citizens, and the Alien Friends Act allowed the president to imprison and deport non-citizens deemed dangerous or from a hostile nation (Alien Enemy Act). And finally, the Sedition Act made it a crime to make false statements that were critical of the federal government.

Collectively, these bills invested President Adams with sweeping authority to deport resident non-citizens he considered dangerous; they criminalized free speech, forbidding anyone to “write, print, utter or publish … any false, scandalous and malicious writing or writing against the government of the United States … or either House of Congress of the United States … with intent to defame … or bring them into contempt or dispute … or to excite against them or either of them … the hatred of the good people of the United States.”

Editors were arrested and tried for publishing pieces the Adams administration deemed seditious. Editors were not the only targets. Matthew Lyon, a Vermont Congressman, was charged with sedition for a letter he wrote to the Vermont Journal denouncing Adams’ power grab. After he was indicted, tried and convicted, Lyon was sentenced to four months in prison and fined $1,000.

For Vice President Jefferson, the Alien and Sedition Acts were a cause of despair and wonderment. “What person, who remembers the times we have seen, could believe that within such a short time, not only the spirit of liberty, but the common principles of passive obedience would be trampled on and violated.” He suspected that Adams was conspiring to establish monarchy again.

It would not be the last time Americans would sacrifice civil liberties for the sake of national security. More on this later.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chair and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].