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Constitutional Politics in the Gilded Age

Published online by Cambridge University Press:  08 November 2010

Michael Les Benedict
Michael Les Benedict
Affiliation:
Ohio State University
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Abstract

During the Gilded Age, constitutional issues pervaded the discussion of nearly all matters of public policy, including regulation of railroads, suppressing unsafe and fraudulent products, labor issues, and combating trusts and monopolies. The Democratic and Republican parties differed in their conceptions of federal power and state rights as well as on matters related to social order and personal liberty. They articulated these differences in political platforms and manifested them in their approach to public policy. The obsession with constitutional issues was not confined to the halls of Congress or the chambers of the Supreme Court. Constitutional discourse ran up from ordinary people and interest groups to public policy makers and down from policy makers seeking support based on fidelity to constitutional principles. Ordinary people influenced constitutional policymaking not only through voting but through various means of making their views known. Advocates used all types of media to make constitutional issues clear to the American people. These ranged from formal treatises aimed at the intellectual elite to cartoons, caricatures, songs, and screeds. Politicians articulated constitutional positions in political platforms, congressional addresses, pamphlets, political and commemorative addresses, and stump speeches. Justices of the Supreme Court eschewed technical and abstract language in constitutional opinions, addressing them to a more general public than they did in other areas of law. In the end, constitutional policy was not determined through legal determinations of the Supreme Court but by the political decisions of the American people.

Type
2009 SHGAPE Distinguished Historian Address
Information
The Journal of the Gilded Age and Progressive Era , Volume 9 , Issue 1 , January 2010 , pp. 7 - 35
Copyright
Copyright © Society for Historians of the Gilded Age and Progressive Era 2010

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References

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2 A title search of the Ohio State University catalogue—one of the largest academic library collections in the country—turned up forty different books or chapters of books whose title begin with those words, compared to 397 entries found under “Constitutional Law.” Most of the forty are by scholars examining countries other than the United States, with titles such as Constitutional Politics in Eastern Europe and Constitutional Politics in Italy. Only fifteen titles deal with “constitutional politics” in the United States, and a number of these are titles of chapters embedded in comparative works or books like Constitutional Politics in Canada and the United States. A keyword search brings up eighty-six hits of separate works. Again, a large majority apply the concept to the constitutional systems of other nations or to a comparison of the U.S. system with other systems. Only thirty of the eighty-six hits were of works dealing solely with “constitutional politics” in the United States. In contrast, a keyword search of the term “constitutional law,” brought up nearly 5,700 results. Search of the electronic catalogue of the Ohio State University Libraries, http://library.ohio-state.edu (accessed May 14, 2009).

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21 The platform of 1864 denounced the Lincoln administration for the “usurpation of extraordinary and dangerous powers not granted by the Constitution,” and declared its “aim and object” to be the preservation of the Union with “the rights of the States unimpaired.” Ibid., 34.

22 Democratic Platform of 1888, ibid., 77.

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34 Democratic Platform of 1888, ibid., 78.

35 U.S. Constitution, art. 1, sec. 4, authorizes Congress “to make or alter” state regulations governing “the Times, Places and Manner” of congressional elections. In Ex parte Siebold, 100 U.S. 371 (1880), and Ex parte Yarborough, 110 U.S. 651 (1884), the Supreme Court held that these provisions gave Congress complete authority over the subject.

36 Congressional Record (CR), 51st Cong., 1st sess. (June 26, 1890), 6561, 6564. The observation of “prolonged applause” is on 6567.

37 William W. Rice (R-Mass.), CR, 48th Cong., 2nd sess. (Dec. 8, 1884), 97.

38 CR, 51st Cong., 2nd sess. (Mar. 25, 1890), 2600.

39 CR, 51st Cong, 1st sess. (Apr. 8, 1890), 3145–53.

40 Sen. Warner Miller (R-N.Y.), CR, 49th Cong., 1st sess. (July 17, 1886), 7073.

41 A search of FirstSearch, WorldCat List of Records, www.worldcat.org (accessed March. 15, 2009), found 43 different entries of reprinted speeches on the Oleomargarine Act.

42 Eustace Gibson (D-W.Va.), CR, 49th Cong., 1st sess. (May 28, 1886), 5032.

43 CR, 49th Cong, 1st sess. (June 3, 1886), 5213.

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47 The Blair Education Bill was debated at length in three Congresses. I will limit this discussion to the first effort to pass it. That debate can be followed in CR, 48th Cong., 1st sess. (Mar. 18–Apr. 8, 1884), 1999–2032, 2061–72, 2099–2112, 2145–53, 2204–15, 2242–55, 2282–92, 2329–42, 2368–76, 2460–71, 2506–16, 2534–57, 2580–98, 2629–49, 2678–2724. The Republi can Senate passed the bill, but the Democratic House never even took it up.

48 See, for example, the criticism of Preston B. Plumb (R-Kans.): “I do not see in this any question of constitutional power, but I do see in it the most dangerous endeavor I have ever witnessed to extend the power of the Federal Government at the expense not only of the State governments but of every form of government within them.” CR, 48th Cong., 1st sess. (Mar. 20, 1884), 2103.

49 George F. Hoar (R.-Mass.), CR, 48th Cong., 1st sess., (Apr. 5, 1884), 2645; see also Henry W. Blair (R.-N.H.), Mar. 19, 1884, 2063, and Mar. 27, 1884, 2334. While Hoar and Blair relied on the general power of the government to guard against threats to republican government, Wilkinson Call (R-Minn.), the member of the committee reporting the bill who appears to have been tasked with defending its constitutionality, linked this broad necessity to the expressly delegated power to tax and spend for “the general welfare” (art. 1, sec. 8); see CR, 48th Cong., 1st sess., (March 27, 1884), 3335–38.

50 Charles W. Jones (D-Fla.), CR, 48th Cong., 1st sess. (Mar. 21, 1884), 2151–52; Joseph E. Brown (D-Ga.), CR, 48th Cong., 1st sess. (Mar. 25, 1884), 2248–49.

51 Augustus H. Garland (D-Ark.), CR, 48th Cong., 1st sess. (Mar. 24, 1884), 2204–05, quotation 2205. Also Joseph E. Brown (D-Ga.), Mar. 25, 1884, 2449–51; James Z. George (D-Miss.), Mar. 28, 1884, 2372–73; Eustace Gibson (D-La.), Apr. 4, 1884, 2591–94.

52 CR, 48th Cong., 1st sess. (Apr. 7, 1884), 2486.

53 For examples, see Richard W. Coke (D-Tex.), CR, 48th Cong., 1st sess. (Mar. 24, 1884), 2707; George G. Vest (D-Mo.), Mar. 24, 1884, 2214; George H. Pendleton (D-Ohio), Apr. 5, 1884, 2535–38.

54 Charles H. Van Wyck (R-Neb.), CR, 48th Cong., 1st sess. (Apr. 2, 1884), 2514.

55 CR, 48th Cong., 1st sess. (Apr. 5, 1884), 2649.

56 CR, 48th Cong., 1st sess. (Apr. 7, 1884), 2699.

57 Ibid., 2724. Voting and paired Republicans divided 25 to 4.

58 Ibid., 2718–19. The brief debate at the time of the vote (see pp. 2699–2706) turned on the objection that the secretary of the interior was performing an essentially judicial function. But earlier debate made the states’ rights issue clear, as did regular allusions to the coerciveness of the bill by its Democratic opponents throughout the debates.

59 CR, 48th Cong., 1st sess. (Mar. 14, 1884), 1886–1903; (Mar. 17, 1884), 1961–74.

60 CR, 48th Cong., 1st sess. (June 18, 1884), 5297–98. For constitutional arguments surrounding the measure, see May 27, 1884, 4554, 4561–65; June 17, 1884, 5241–42, 5245–49; June 18, 1884, 5281–91.

61 For example, Anonymous, The Money of the Constitution: The Action of the Fathers of the Republic and the Statesman of the Nation in Favor of the Free and Unlimited Coinage of Gold and Silver; A Policy Representing Prosperity vs. a Policy Producing Disaster (n.p., 1896); Enloe, Benjamin A., The Standard of Values: Gold and Silver, the Money of the Constitution—A Plea for the Double Standard; Speech of Hon. B. A. Enloe of Tennessee, in the House of Representatives, Friday, August 25, 1893 (Washington, 1893)Google Scholar; Harris, Isham G., Gold and Silver, the Money of the Constitution, the Money of the People: Speech of Hon. Isham G. Harris of Tennessee, in the Senate of the United States, Friday, September 29, 1893 (n.p., 1893)Google Scholar; Maginnis, M. N., Constitutional Money: A Plan for the Coinage of the Gold and Silver Bullion Product of the Mines of the United States (San Francisco, 1892)Google Scholar; Foote, Allen Ripley, The Money of the Constitution (New York, 1896).Google Scholar

62 New York Tribune, June 15, 1865, repr. in Documentary History of the Negro People, ed. Herbert Aptheker (New York, 1968), 2:537. See also Equal Suffrage: Address from the Colored Citizens of Norfolk, Va., to the People of the United States…(New Bedford, MA, 1865), repr. in Documentary History of the Negro People, 2:535–36.

63 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). The opinion of the attorney general preceded Dred Scott (1857) in finding that free black Virginians were not embraced by the term “citizens of the United States” because of the “incapacities which distinguished them from the white citizens of Virginia.” 1 Opinions of the Attorney General (1821), 507–08.

64 For background, see Culbertson, Tom, “The Golden Age of American Political Cartoons,” Journal of the Gilded Age and Progressive Era 7 (July 2008): 277–95.CrossRefGoogle Scholar

65 Brooklyn Young Republican Club, Young Republican Campaign Song Book, comp. Henry Camp (Brooklyn, 1888), 14.

66 Ibid., 42.

67 Ibid., 62.

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69 Newmyer, R. Kent, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge, 2001), 355.Google Scholar

70 Texas v. White, 74 U.S. 700 (1869).

71 Ibid., 725.

72 Slaughterhouse Cases, 32 U.S. 36 (1873).

73 For an excellent example of the contrast between the “grand style” of opinion aimed to persuade a general public, and a technical one that appears to be aimed at lawyers, compare the majority and dissenting opinions in U.S. v. Lee, 106 U.S. 196 (1882).

74 “Although this decision did not meet the approval of four out of nine of the judges on some points on which it rested, yet public sentiment, as found in the press and in the universal acquiescence which it received, accepted it with great unanimity; and although there were intimations that in the legislative branches of the Government the opinion would be reviewed, and criticized unfavorably, no such thing has occurred in the fifteen years which have elapsed since it was delivered. And while the question of the construction of these amendments,…has often been before the Supreme Court…, no attempt to overrule or disregard this elementary decision of the effect of the three new constitutional amendments upon the relations of the State governments to the Federal Government has been made; and it may be considered now as settled.” Miller, Samuel Freeman, Lectures on the Constitution of the United States (Albany, NY, 1891), 411.Google Scholar

75 In the debate over the Oleomargarine Bill, New York Republican senator William M. Evarts insisted that legal precedents established the constitutionality of the measure. “If it be constitutional in the eye of the law it is constitutional in the eye of the Constitution, and the Supreme Court is the judge of what is constitutional.” CR, 49th Cong., 1st sess. (July 20, 1886), 7192. Missouri's Democratic senator George G. Vest articulated the same understanding while debating the Sherman Anti-Trust Act: “We live, very fortunately, in my judgment, under a written Constitution, and we are governed by the decisions of the Supreme Court in regard to the legislative powers vested in us.” CR, 51st Cong., 1st sess. (Mar. 21, 1890), 2463.