Introduction
American democracy relies on a social contract that places a great deal of trust in the checks and balances of the three branches of government, and in a news media often considered a fourth branch. In the common understanding of those checks and balances, Congress makes the laws, the president and his Cabinet implement and enforce them, the courts ensure that justice is delivered consistently, fairly, and equitably in accordance with the Constitution, and the media holds the other three branches accountable. Or at least that’s the way the system is supposed to work.
Politics inevitably creeps into this system, especially when circumstances create opportunities for elected officials to take advantage of its inadequacies. It is a system that has long been described as a work in progress. At various times, its weaknesses have resulted in the weaponizing of one or more of the legislative, executive, and judicial branches and the media to further the political goals of one party over another.
We see this in the back-and-forth struggle over executive power, as presidents have sought to expand the authority of their position and Congress has tried to rein it in, as it did when it blocked President Roosevelt’s effort to pack the Supreme Court in 1937. At different times, the Supreme Court has ruled in support of executive power and against it, as reflected in Korematsu v. the United States and Youngstown v. Sawyer, respectively. Given the political tensions over abolition and slavery in the 1840 presidential race, Vice President Tyler’s assertion of his right to assume the full authority of the presidency upon President Harrison’s death – a succession process that was not fully defined by the Constitution – established an important precedent for maintaining stability in the executive branch and the power of the president.
Much of our political history is defined by the struggle between groups of citizens whose visions have sometimes differed substantially in terms of what the country should look like and who its democratic systems should serve. The presidential election of 1800 is one of our earliest examples of this divide. An oversight in the Constitution and the evolution of two political parties representing fundamentally opposing views of federal government led to the mobilizing of militias in Pennsylvania and Virginia. Ensuing negotiations found a middle ground between the two partisan perspectives and avoided a military clash that many feared would do irreparable damage to the young republic. The resulting compromise was part of a pattern of policy-making that prioritized preservation of the union over other, potentially contentious issues.
In practice, the preference for union over confrontation meant that the divisive issue of slavery versus abolition was typically left unresolved, and the land claims of the Cherokee Nation and other American Indian nations were often ignored. The Dred Scott decision in 1857 broke that pattern of compromise. The Supreme Court ruling in this case heightened tensions between the slave-holding South and the abolition-minded North and set the nation on a course to civil war. Following the Civil War and the end of Reconstruction, the desire to avoid further conflict meant turning a blind eye to Jim Crow and numerous abuses heaped on Black, Brown, and Indigenous populations.
Compromise has been, in practice, a cornerstone of our system’s success and the nation’s growth. But it’s come at the cost of delaying an inevitable reckoning, first in the form of a civil war, then again in the often violent battle for civil rights in the 1950s and 60s. When compromise fails to deliver on the promise of democracy and equal opportunity to entire segments of our citizenry, time after time, it becomes a matter of when – not if – anger and resentment explode into demands for immediate solutions. With the vast increase in income and wealth inequality since 1980, unprecedented levels of immigration, efforts to suppress minority voting in several states, and growing awareness of how justice is forcefully and unequally applied, we appear to be approaching the point of a third such reckoning.
The earlier periods of civil disruption and bloodshed produced landmark advances in the rights of non-White citizens. It’s fair to ask some questions at this point: Is bloodshed a necessary part of American advancement towards the self-evident truth that all men and women are created equal? Can these extreme swings of the pendulum be contained so as to further reduce, if not avoid, bloodshed? Can the tensions that arise from opposing views be channeled, if not reconciled, into finding creative solutions to our systemic problems that make our democratic society even more sustainable than it has already proven to be?
Our storyline, in its current form, only scratches the surface of the history in question. But the 13 crises included here illustrate how justice and the rule of law that our social contract demands are perpetually challenged by the need to adapt to the nation’s changing circumstances and the frequent political manipulations of the branches of government to serve partisan objectives. These 13 crises suggest that the checks and balances of the system falter when the people in authority lack Constitutional guidance, ignore the law, or fail to follow established processes in pursuit of partisan interests. Yet, our Constitution and the rule of law endure because others have willingly stepped forward to adapt and defend them for the public good – a term that has, over the long arc of history, grown more inclusive.
“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”
— Judge Learned Hand, “The Spirit of Liberty” speech, 1944
Law and Politics Timeline
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The Election of 1800
An Electoral College tie in the race for president and the emergence of competing national political factions threatened to destabilize the country. In the end, the conflict surrounding this election’s outcome was resolved, sending a message to the country and to the world that the novel American experiment of republican government could endure. -
Worcester v. Georgia
The anti-Native agenda supported by the combined force of the executive and legislative branches threatened the nascent doctrine of judicial review. -
John Tyler and Presidential Succession
The Constitution specifies very little about presidential succession. The death of President William Henry Harrison set in motion events that established a precedent observed for more than a century. -
Dred Scott Decision
In the case Dred Scott v. Sanford, the Supreme Court ruled that slaves were not citizens and could not be free unless their owners freed them.This highly controversial decision undermined decades of compromise and set the country on a path toward civil war. -
Secession and Civil War
Upon the election of Abraham Lincoln, the Southern states attempted to secede from the Union for fear that Lincoln would abolish slavery. Believing secession to be illegal, Lincoln chose to go to war against these states to preserve the Union. -
The “Election” of Rutherford B. Hayes
Congress created an electoral commission to determine the winner of the 1876 election when neither candidate received a clear majority of electoral votes. The media and general public viewed the method by which the Electoral Commission determined the decision – the Compromise of 1877 – as highly partisan and undemocratic. -
Roosevelt’s Court Packing Plan
Faced by a Supreme Court that repeatedly struck down New Deal legislation, President Roosevelt attempted to circumvent the Court’s opposition with a proposal to add up to six new, and presumably more sympathetic, justices. -
Lend Lease Act
Relying on executive prerogative, President Roosevelt used the complex and legally dubious memorandum of his attorney general to justify the lease of destroyer ships to Great Britain, which contributed to a rise in executive power. -
Japanese Internment
Racial prejudice and deference to executive authority during a time of national crisis led to the Supreme Court’s sanctioning of the military internment of American citizens in the Korematsu decision. -
Youngstown v. Sawyer
Following a broad exercise of executive power in a time of war, the Supreme Court put forth a framework limiting the power of the president relative to Congress. -
The Clinton Impeachment
An impeachment pursued by a new brand of Republican politicians set new norms for the impeachment process, demonstrated how popularity can shield presidents from oversight, and displayed how partisanship influences the interactions between the branches of government. -
The 2000 Presidential Election
The 2000 election between George W. Bush and Al Gore was one of the closest elections in American history and was ultimately determined by the votes in Florida. Only 537 votes separated the candidates, forcing a controversial recount that was only resolved when the Supreme Court ruled the recount unconstitutional. With this decision, George W. Bush was awarded Florida’s electoral votes and declared the winner. Despite lingering concerns and even though he had won the popular vote nationally, Al Gore conceded the election, and the public accepted Bush as their new president.
Sources
The URLs included with the sources below were good links when we published. However, as third party websites are updated over time, some links may be broken. We do not update these broken links. If you are interested in the source, it may be possible to find it by copying and pasting the URL into a search on the Internet Archive Wayback Machine. From the search results, be sure to choose a date from around the time our article was published.
The Election of 1800
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Worcester v Georgia
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John Tyler and Presidential Succession
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Dred Scott Decision
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Melvin I. Urofsky, “Dred Scott Decision”, Britannica, https://www.britannica.com/event/Dred-Scott-decision, accessed Sep 8, 2020
“Missouri Compromise”,Library of Congress, https://guides.loc.gov/missouri-compromise/introduction, accessed Nov 25, 2020
“Missouri’s Dred Scott Case”, Missouri Digital Heritage, https://www.sos.mo.gov/archives/resources/africanamerican/scott/scott.asp, accessed Sep 8, 2020
Secession and Civil War
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“Civil War Facts”, American Battlefield Trust, https://www.battlefields.org/learn/articles/civil-war-facts#What%20caused%20the%20Civil%20War, accessed Aug 4, 2020
“Compromise of 1850, Britannica, https://www.britannica.com/event/Compromise-of-1850, accessed Nov 25, 2020
“Fugitive Slave Clause: Doctrine and Practice, Constitution Annotated, https://constitution.congress.gov/browse/essay/artIV_S2_C3_1_1/, accessed Nov 25, 2020
Jake Flannigan, “For the Last Time, the American Civil War Was Not About States’ Rights”, Quartz, https://qz.com/378533/for-the-last-time-the-american-civil-war-was-not-about-states-rights/, accessed Aug 15, 2020
“Landmark Legislation: Thirteenth, Fourteenth, & Fifteenth Amendments”, United States Senate, https://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendments.htm, accessed Aug 4, 2020
Michel Martin, What the Emancipation Proclamation Didn’t Do”, National Public Radio, https://www.npr.org/2013/01/09/168957092/what-the-emancipation-proclamation-didnt-do, accessed Sep 1, 2020
“Missouri Compromise”, Britannica, https://www.britannica.com/event/Missouri-Compromise, accessed Nov 25, 2020
“Secession: Why Lincoln Feared it was the End of Democracy”, National Park Service, https://www.nps.gov/articles/secession-why-lincoln-feared-it-was-the-end-of-democracy.htm, accessed Sep 1, 2020
“Slavery, the Constitution, and a Lasting Legacy”, Montpelier, https://www.montpelier.org/learn/slavery-constitution-lasting-legacy, accessed Aug 4, 2020
“Texas v. White et al.”, Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/74/700, accessed Nov 25, 2020
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The “Election” of Rutherford B. Hayes
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“FAQs about the 1876 Disputed Election”, Rutherford B. Hayes Presidential Library and Museums, https://www.rbhayes.org/hayes/frequently-asked-questions-on-the-1876-election/, accessed Aug 4, 2020
Melvin I. Urofsky, “Jim Crow Law”, Britannica, https://www.britannica.com/event/Jim-Crow-law, accessed Aug 4, 2020
N.R. Kleinfield, “President Tilden? No, but Almost, in Another Vote That Dragged On”, New York Times, https://www.nytimes.com/2000/11/12/us/counting-vote-history-president-tilden-no-but-almost-another-vote-that-dragged.html, accessed Aug 4, 2020
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Roosevelt’s Court Packing Plan
Aaron Xavier Fellmeth, “A Divorce Waiting to Happen: Franklin Roosevelt and the Law of Neutrality, 1935-1941”, Buffalo Journal of International Law, 1996, pg. 467, https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=1041&context=bjil, downloaded Aug 4, 2020
Gregory A. Caldeira, “Public Opinion and the U.S. Supreme Court: FDR’s Court-Packing Plan”, JSTOR, https://www.jstor.org/stable/1962582?seq=1#metadata_info_tab_contents, accessed Aug 4, 2020
“How FDR lost his brief war on the Supreme Court”, National Constitution Center, https://constitutioncenter.org/blog/how-fdr-lost-his-brief-war-on-the-supreme-court-2, accessed Aug 4, 2020
“Morehead v. New York ex rel. Tipaldo”, Oyez, https://www.oyez.org/cases/1900-1940/298us587, accessed Nov 25, 2020
Olivia B. Waxman, “Some Democrats Want to Make the Supreme Court Bigger. Here’s the History of Court Packing”, Time Magazine, https://time.com/5702280/court-packing-history/, accessed Aug 4, 2020
Richard D. Friedman, “Chief Justice Hughes’ Letter on Court-packing”, University of Michigan Law School, https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1850&context=articles, accessed Sep 4, 2020
William E. Leuchtenburg, “When Franklin Roosevelt Clashed with the Supreme Court– And Lost”, Smithsonian Magazine, https://www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/, accessed on Aug 4, 2020
Lend Lease Program
Aaron Xavier Fellmeth, “A Divorce Waiting to Happen: Franklin Roosevelt and the Law of Neutrality, 1935-1941”, Buffalo Journal of International Law, 1996, https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=1041&context=bjil, downloaded Aug 4, 2020
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Robert J. Delahunty, “Robert Jackson’s Opinion on the Destroyer Deal and the Question of Presidential Prerogative”, Vermont Law Review, 2014, downloaded Aug 4, 2020
Warren F. Kimball, “The Most Unsordid Act: Lend-Lease, 1939–1941”, Baltimore, Maryland: Johns Hopkins University, 1969, accessed Sept. 4, 2020
William E. Leuchtenburg, “Franklin D. Roosevelt: Foreign Affairs”, The Miller Center at The University of Virginia, https://millercenter.org/president/fdroosevelt/foreign-affairs, accessed Aug 4, 2020
Japanese Internment
Debra Cassens Weiss, “Scalia: Korematsu was wrong, but ‘you are kidding yourself’ if you think it won’t happen again”, ABA Journal, February 4, 2014, https://www.abajournal.com/news/article/scalia_korematsu_was_wrong_but_you_are_kidding_yourself_if_you_think_it_won, accessed Aug 4, 2020
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Scott Bomboy, “Did the Supreme Court Just Overrule the Korematsu Decision?”, National Constitution Center, June 26, 2018, https://constitutioncenter.org/blog/did-the-supreme-court-just-overrule-the-korematsu-decision, accessed Nov 16, 2020
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“Transcript of Executive Order 9066: Resulting in the Relocation of Japanese (1942)”, History Matters, https://www.ourdocuments.gov/doc.php?flash=false&doc=74&page=transcript, accessed Nov 16, 2020
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Youngstown v Sawyer
“Concurring opinion, Youngstown v. Sawyer, 343 U.S. 579 (June 2, 1952)”, Robert H. Jackson Center, https://www.roberthjackson.org/opinion/concurring-opinion-youngstown-v-sawyer-343-u-s-579-june-2-1952/, accessed Nov 16, 2020
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Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952).
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Watergate
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Mark J. Rozell, “‘The Law’: Executive Privilege: Definition and Standards of Application, Presidential Studies Quarterly, December 1999, downloaded August 12, 2020
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The Clinton Impeachment
Adam Clymer, “To Gingrich, Elections this Year are like ‘Whitewater Canoeing’”, The New York Times, October 25, 1996, https://www.nytimes.com/1996/10/25/us/to-gingrich-elections-this-year-are-like-whitewater-canoeing.html, accessed Sept. 7, 2020
Alison Mitchell, “Gingrich Defends Starr as Lott Urges him to ‘Show His Cards’”, The New York Times, March 8 1998, https://www.nytimes.com/1998/03/08/us/gingrich-defends-starr-as-lott-urges-him-to-show-his-cards.html, accessed Sept. 7, 2020
Andrew Glass, “Congress Runs into ‘Republican Revolution’ Nov. 8 1994”, Politico, Nov 8, 2007, https://www.politico.com/story/2007/11/congress-runs-into-republican-revolution-nov-8-1994-006757, accessed Nov 16, 2020
Andrew Glass, “House Votes to Impeach Clinton, Oct. 8 1998”, Politico, Oct 8, 2007, https://www.politico.com/story/2017/10/08/house-votes-to-impeach-clinton-oct-8-1998-243550, accessed Nov 16, 2020
“Aug 19, 1998: President Clinton Admits ‘improper relationship’ with Monica Lewinsky’, ABC News, https://abcnews.go.com/Politics/video/aug-17-1998-president-clinton-admits-improper-relationship-57137291, accessed Nov 16, 2020
C-SPAN, “Whitewater Republican News Conference”, March 24, 1994, https://www.c-span.org/video/?55485-1/whitewater-republican-news-conference, accessed Sept. 7, 2020
Natasha Hritzuk, “Presidential Power”, Columbia University Press, August 2000, downloaded Aug 4, 2020
David E. Rosenbaum, Has Whitewater Become a Witch Hunt?”, New York Times, January 26, 1998, https://www.spokesman.com/stories/1998/jan/26/has-whitewater-become-a-witch-hunt-legal-scholars/, accessed Sept 7, 2020
Drew Desilver, “Clinton’s Impeachment barely dented his public support, and it turned off many Americans”, Pew Research Center, Oct 3, 2019, https://www.pewresearch.org/fact-tank/2019/10/03/clintons-impeachment-barely-dented-his-public-support-and-it-turned-off-many-americans/, accessed Sept. 7, 2020
Drew Desilver, “The polarized Congress of today has its roots in the 1970s”, Pew Research Center, June 12, 2014, https://www.pewresearch.org/fact-tank/2014/06/12/polarized-politics-in-congress-began-in-the-1970s-and-has-been-getting-worse-ever-since/, accessed Sept. 7, 2020
Jeremy Hobson, “How Newt Gingrich Shaped the Republican Party”, WBUR, July 7, 2020, https://www.wbur.org/hereandnow/2020/07/07/newt-gingrich-republican-party, accessed Nov 16, 2020
Jonathan Weisman, “Clinton Acquitted”, Baltimore Sun, February 13, 1999, https://www.baltimoresun.com/opinion/readers-respond/bal-clinton09-story.html, accessed Sept. 7, 2020
“Kenneth Starr”, PBS, https://www.pbs.org/wgbh/americanexperience/features/clinton-interview-kenneth-starr/, accessed Nov 16, 2020
Leonard V. Kaplan and Beverly I. Moran, “Aftermath: The Clinton Impeachment and the Presidency in the Age of Political Spectacle”, Critical America, 2001, accessed Nov 16, 2020
H. LaRue, “The Story About Clinton’s Impeachment”, Law and Contemporary Problems, Winter-Spring 2020, downloaded Aug 4, 2020
Mark V. Tushnet, “Aftermath: The Clinton Impeachment and the Presidency in the Age of Political Spectacle”, NYU Press, 2001, downloaded Aug 4, 2020
McKay Coppins, “Newt Gingrich Says You’re Welcome, The Atlantic, October 17, 2018, https://www.theatlantic.com/magazine/archive/2018/11/newt-gingrich-says-youre-welcome/570832/, accessed Aug 4, 2020
Washington Post , “Whitewater Timeline”, 1998, https://www.washingtonpost.com/wp-srv/politics/special/whitewater/timeline2.htm, accessed Sept. 7, 2020
Michael J. Gerhardt, “The Historical and Constitutional Significance of the Impeachment and Trial of President Clinton”, Hofstra Law Review, 1999, https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2076&context=hlr, accessed Aug 4, 2020
Peter Boyer, “Good Newt, Bad Newt”, Vanity Fair, July 1989, https://www.pbs.org/wgbh/pages/frontline/newt/boyernewt1.html, accessed Nov 16, 2020
“Whitewater Special Report: Time Line (1995-1998)”, Washington Post, 1998, https://www.washingtonpost.com/wp-srv/politics/special/whitewater/timeline2.htm, accessed Nov 16, 2020
The 2000 Presidential Election
Alan Agresti and Brett Presnell, “Misvotes, Undervotes and Overvotes: The 2000 Presidential Election in Florida”, Institute of Mathematical Statistics, https://projecteuclid.org/download/pdf_1/euclid.ss/1049993202, accessed Aug 4, 2020
“Bush v. Gore”, Britannica, https://www.britannica.com/event/Bush-v-Gore, accessed Aug 4, 2020
Daniel P. Tokaji, “An Unsafe Harbor: Recounts, Contests, and the Electoral College, https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1129&context=mlr_fi, accessed Nov 25, 2020
“Election of President and Vice President”, National Constitution Center, https://constitutioncenter.org/interactive-constitution/amendment/amendment-xii, accessed Aug 4, 2020
“Election 2000: Before and After”, National Conference of State Legislatures, https://www.ncsl.org/research/elections-and-campaigns/election-2000-before-and-after.aspx, accessed Aug 4, 2020
Elspeth Reeve, “Just How Bad Was Bush v. Gore?”, The Atlantic, https://www.theatlantic.com/politics/archive/2010/11/just-how-bad-was-bush-v-gore/343247/, accessed Aug 4, 2020
Ford Fessenden, “Florida List for Purge of Voters Proves Flawed”, New York Times, https://www.nytimes.com/2004/07/10/us/florida-list-for-purge-of-voters-proves-flawed.html, accessed Sep 8, 2020
“Interpretation: Elections Clause”, National Constitution Center, https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/750, accessed Aug 23, 2020
Joseph Carroll, “Seven out of 10 Americans Accept Bush as Legitimate President”, Gallup, https://news.gallup.com/poll/4687/seven-americans-accept-bush-legitimate-president.aspx, accessed Aug 4, 2020
Ron Elving, “The Florida Recount of 2000: A Nightmare That Goes on Haunting”, NPR, https://www.npr.org/2018/11/12/666812854/the-florida-recount-of-2000-a-nightmare-that-goes-on-haunting, accessed Aug 4, 2020
Sarah Childress, “Local Election Officials Resist Florida’s Efforts to Purge Voter Rolls”, PBS, https://www.pbs.org/wgbh/frontline/article/local-election-officials-resist-floridas-efforts-to-purge-voter-rolls/, accessed Sep 8, 2020
“The Election of 1824”, Bill of Rights Institute, https://billofrightsinstitute.org/educate/educator-resources/lessons-plans/presidents-constitution/the-election-of-1824/, accessed Nov 25, 2020
Thomas E. Mann, “Reflections on the 2000 Presidential Election”, Brookings Institute, https://www.brookings.edu/articles/reflections-on-the-2000-u-s-presidential-election/, accessed Aug 4, 2020
Credits
Related Pages: Voting Rights, Expansion of Voting Rights
Contributors: George Linzer, Natasha Raman, Colin Fennelly
Reviewed by: Judge John Mott
Published on: November 30, 2020