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Tuesday, December 04, 2018

Conlawprof, Normal Politics, and Fascism

One participant on Conlawprof wrote:

Democrats have been bad—probably equally bad—about gerrymandering when they had the chance. Republicans got most of the chances after the 2010 census.

I’m not aware of any examples of Democrats trying to strip the governorship of its powers when the Republicans elected a governor, or attempting to legislatively rearrange the separation of powers in some other way for similar reasons. These efforts in North Carolina, Wisconsin, and Michigan seem to be a new escalation. Maybe someone knows of prior examples; I am certainly not in any position to claim that there are none. But so far, no one on the list has been able to remember any.

(emphasis added).

My response:

Amendment Seventeen of the Constitution provides: “When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” In Massachusetts, prior to 2004, state law provided that the governor could make a temporary appointment to the U.S. Senate in the event of a senate vacancy. When Senator Kerry won the Democratic nomination for President, the state legislature (Democratic) changed the law and repealed the authorization providing for a temporary appointment by the governor. The governor at that time was Romney: a Republican. As to subsequent developments: In 2009, “[f]ollowing [Senator] Kennedy’s death from brain cancer . . . , the Legislature [again, Democratic] tweaked the law to give Democratic Gov[ernor] Deval Patrick what they had denied [Governor] Romney, the ability to appoint a temporary senator to fill the seat for a few months until the special election.” <> (emphasis added). Query: What do you think of the media’s use of “tweak[]” here?—Is this evidence of bias? Doesn’t Professor QQQ consider just this sort of “tweaking” evidence of “fascism”? See December 3, 2018 post. If Professor QQQ is right, then this is bias, right? Or, if this media report is correct, then what do we think of Professor QQQ’s “fascism” language?

For a modern New Jersey example…of attempted (but failed efforts) by a Democratic legislature to change the power status quo vis-à-vis its Republican Governor, see <> (“The [N.J.] Legislature once before approved legislation to force governors to collaborate with it on predicting revenues, but the measure was vetoed by [Governor] Christie [a Republican] in 2016. Unlike the proposed constitutional amendment, that bill would still have left it up to the governor to certify the final revenue figures.”).

On a more historical note…as Reconstruction was winding down and in its immediate aftermath…Republican governors were sometimes confronted with Democratic legislatures—the latter would strip powers from the former. That’s what happened in Texas circa 1872. See <> (“Democrats regained control of the Texas legislature in late 1872 as a result of elections in which Texans vented their wrath on the Republicans. Almost immediately the Thirteenth Legislature repealed most of the ‘radical’ legislative program enacted by the previous body and removed some of the governor’s most significant powers. In December, 1873, Texans removed Governor Davis from office in favor of an unreconstructed Democrat, Richard Coke.”). I suppose I could find other examples from that period, but why bother? This type of statutory power grab [in the former confederate states in relation to Reconstruction politics] ended once the Democrats excluded Black Americans, Cajun Americans, and other loyal Americans from the polls, thereby securing for their party all state-wide offices for several generations. But that is a history we all know.


PS: Welcome Instapundit readers. Stay and have a look around New Reform Clubmy co-bloggers do good work. 

Seth Barrett Tillman, Conlawprof, Normal Politics, and Fascism, New Reform Club (Dec. 4, 2018, 4:19 AM) <>. 


(Spelling error correct per Professor Reynolds.)

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