Kurt X. Metzmeier's blog
NPR political correspondent Ken Rudin's latest post on his Political Junkie Blog is the kind of story I can't ignore: high politics combined with the less weighty business of collecting historical ephemera.
It seems that Sen. Jim Bunning--our current senator but for nine years an ace pitcher for the Detroit Tigers--was scheduled to sell autographs at a Michigan baseball memorabilia sale this weekend. However, after the auto bailout was scuttled, the promoter canceled it in anger at Bunning's active opposition. (Bunning was slated to get paid $35 an autograph--aren't we paying the poor guy enough at his day job?). Bunning has been a staunch opponent of all the recent attempts to rescue both the banking and auto industries, so at least he isn't favoring bankers over line workers.
Apparently Bunning hasn't learned OJ's lesson--the business of sports collectibles is no place for the weak of heart. These folks throw it high and hard!
Many of President-elect Barack Obama's major cabinet selection's have been made and it is remarkable how many lawyers have been elected to or nominated for the more prestigious executive positions. Joining lawyers President Obama (Harvard 1991) and Vice President Joe Biden (Syracuse 1968) are nominees as Secretary of State, Hillary Clinton (Yale 1973), Attorney General, Eric Holder (Columbia 1976), and Secretary of Homeland Security, Janet Napolitano (Virginia 1979).
While the office of attorney-general is obviously a lawyer's job, a surprising number of secretaries of state have been attorneys, including some of the best including John Jay, John Quincy Adams, James Monroe Henry Clay, Elihu Root, Cordell Hull, Dean Acheson and James A. Baker III (to name just a few). The new position as Secretary for Homeland Security is settling in as a job for lawyers, with the first two chiefs,Tom Ridge (Penn. 1972) and Michael Chertoff (Harvard 1975) having been prosecutors.
I was curious to see when the last time these same top four jobs (Prez, Veep, SecState & AG) were all held by lawyers. It turns out it was Richard Nixon's (Duke 1937) first term, before VP Spiro Agnew (Baltimore 1947) resigned, William P. Rogers (Cornell 1937) was pushed out by Henry Kissinger, and John Mitchell (Fordham 1938) left in the midst of Watergate.
Not a great example but Washington's first cabinet (with the exception of War Secretary Henry Knox) had all been called to the bar and while the Great Man had merely dabbled, Vice President John Adams, Secretary of State John Jay, Treasury Secretary Alexander Hamilton and Attorney General Edmund Randolph had all been working lawyers.
America's Lawyer-Presidents: From Law Office to Oval Office. Evanston, Ill: North Western University Press, 2004. (Order from ABA)
Herring, George C. From Colony to Superpower: U.S. Foreign Relations Since 1776. Oxford: Oxford University Press, 2008.
While it is looking less likely that convicted-but-not-sentenced Alaska Senator Ted Stevens will win his re-election race, if the tube-surfing Internet guru does prevail, the new Congress will be faced with the dilemma of an actual (as opposed to potential) felon in their midst.
Public statements make it clear that both Republicans and Democrats want Sen. Stevens to climb on his dump truck and go back to Alaska. All of the stories I've read take for it for granted that the next step will be for the Senate to exercise its power to expel a member after Stevens is sworn in. However, there is another option of which there has been little talk: the use of the Senate's constitutional right to judge the qualifications of its members to deny Stevens right to be sworn in the first place. This option requires only a majority vote (as opposed to a two-thirds majority) and has the added benefit of preventing a convicted felon from ever being part of the new Congress.
There is not a clear precedent for this--but swearing in a convicted-felon as senator is also unprecedented. From looking at the records of Senate election and qualifications cases (which are at least initiallly adjudged by the Senate itself without judicial intervention, U.S. Const. I,.5, though the Supreme Court does have the final say), I see two issues that could be raised by this dramatic step. The first issue would be the historical reluctance by both bodies of Congress to even entertain refusing the oath to any candidate carrying election papers certified by the designated state officers. Second, cases from the Civil War era indicate a general, though not clearly stated, belief that that an inquiry into a candidate's fitness for office improperly adds qualifications not enumerated in the constitution. In both cases, I think there is an argument that the existing Senate precedents are not an absolute bar to refusing Stevens the oath.
The initial issue would be over whether the Senate would vote to refuse Stevens to take his oath of office upon presentation of a certification of election by the Alaska authorities. I think that issue was disposed in the 1975 case of Durkin v. Wyman in New Hampshire, described in Anne M. Butler, Wendy Wolff, and Sheila P. Burke, United States Senate Election, Expulsion, and Censure Cases, 1793-1990 421-425 (Washington, D.C.: G.P.O., 1995). The case involved a ten-vote margin, a withdrawn certification of election, and a confused history touching all levels of the New Hampshire courts who ultimately certified the Republican Wyman’s election. The despite the admission by both parties that there was no allegation of fraud and that the papers were properly attested, the Democratically controlled Senate rejected the claim that it was bound by the state certification and tasked the Rules Committee with recounting disputed votes. (With the Senate hopelessly deadlocked in late summer, the two parties agreed support a declaration that the seat was vacant so that a special election could be held; Durkin won that ballot easily).
The knottier issue involves the question if whether rejecting a properly elected candidate because he has been convicted of a felony impermissibly adds a qualification for office not enumerated by the Constitution. The most on point case is the 1862 case of Benjamin Stark of Oregon, accused of treasonous intercourse with the Confederacy, the full papers of which are reprinted in Taft’s Election Cases, reprinted in full in Google Books. When Stark appeared to present his credentials and swear the oath, Sen. William P. Fessenden of Maine moved successfully that Stark be denied the oath and the matter be referred to the Judiciary Committee. The Committee returned with a one-paragraph majority report recommending that Stark be allowed to take the oath. Though the majority did not state its reasons for its decision, the minority report by Sen. Lyman Trumbull indicated that the decision turned (partially) on the theory that any past treasonous acts by Stark would be cured by his swearing to uphold the U.S. constitution. (A later effort to oust Stark failed and revealed the flimsy evidence for treason in the case).
However, the most interesting thing about the Trumbull minority report is a rhetorical passage where he ridicules the idea that barring the oath to a traitor is a superaddition to the constitution by comparing it with the (then) comically absurd idea of swearing in a felon. “Suppose,” Trumbull asks, “a Senator, after his appointment, and before qualifying, to commit the crime of murder, would any one question the right of the State authorities where the crime was committed to arrest, confine, and, if found guilty, execute the murderer, and thereby forever prevent his taking his seat? Or, if the punishment for the offense was imprisonment, would any one question the right to hold the Senator in prison, and thereby prevent his appearing in the Senate?” (p. 222). Noting the unlikeliness of such a result, he concludes that “it is clear that a Senator-elect, possessing all the constitutional qualifications of age, citizenship, and inhabitancy, may be prevented from taking the oath of office” in such a case, noting that Congress had “repeatedly acted upon the presumption that it was entirely competent for it to prescribe, as a punishment for crime, an inability forever afterwards to hold any office of honor, profit, or trust under the United States.” It appears that the majority didn’t dispute Trumbull’s claim that a convicted felon should be denied the right to take the oath; they just didn’t think there was sufficient proof of treason, or that the oath of loyalty would satisfy that concern.
The precedents, while not completely clear, suggest that the Senate could refuse to allow Stevens to join the 111st Congress. That is, if the Alaska voters haven’t already done so.
Obama transition team chief John Podesta recently indicated that Obama's advisers were reviewing Bush executive orders and that the new president was considering reversing some Bush orders. Podesta noted that "there's a lot that the president can do using his executive authority without waiting for congressional action." The statements sparked a discussion about executive orders and generally about Obama's views on presidential power.
Executive orders are are not an extra-ordinary use of presidential power; since the administration of Teddy Roosevelt each chief executive has issued hundreds of these orders, with FDR issuing thousands in response to the Great Depression. In theory as well as ordinary practice, they are not a legislative power; they only direct the existing executive departments and agencies to exercise their powers in conformance with the executive order, within the confines of existing legislation and established presidential power. This is not to say that they can do things Congress might not agree with; in 1948 President Truman signed Executive Order 9981 integrating the US armed forces when there was no way that a similiar law would have made it out of the Senate. Nonetheless, it was a fully constitutional exercise of his power as commander-in-chief.
Executive orders are not secret; they are published in the Federal Register when issued and active EOs are collected annually in volume 3 of the Code of Federal Regulations. Even more convenient for Podesta and company, the National Archives has collected and created a directory page and subject index for all of President Bush's EOs at http://www.archives.gov/federal-register/executive-orders/wbush.html. From the Afghanistan campaign medal to the blocking of Zimbabwe assets in the US, all 262 Bush executive orders can be reviewed.
The Podesta announcement also raised speculation on Obama's view of the scope of executive power. With some accounting for the fact that presidential powers look bigger from the Oval Office than suite 714 of the Hart Office Building, there is a very good summary of Obama's view in a questionaire that Boston Globe reporter Charlie Savage sent all the candidates last December. The Q/A relates each candidates views on the constitution and the president's constitutional powers. What is interesting is that despite being involved in a primary campaign involving Democratic party activists who depised President Bush's questional assertion of vast wartime powers, Obama's answers are relatively moderate in both tone and substance. For example, he refuses to totally swear off the use of presidential signing statements; he (rightly) condemns the use of such statements to negate the law being signed, but allows for the traditional use of the statements to "clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law," and--this is the type of ambiguity that is worrisome to some--"to protect a president's constitutional prerogatives." Nonetheless, Obama rejects most of Bush's more eyebrow-raising assertions of presidential power and he foreshadows the recent announcement that his administration would close the extralegal prison at Guantánamo Bay.
Even before Barack Obama was elected president Tuesday, Washington pundits were surveying insiders for clues on the possible personel chart of his new administration. As far back as May, the Washingtonian had floated names for the future cabinet and WH staff, and more concrete suggestions were made last week in a Politico article. Lawyers haven't been left out of the game, with this months issue of the ABA Journal discussing the prospects for legal jobs in either an Obama or McCain cabinet. As the ABA journal points out, Obama, a lawyer (and the second Harvard JD as president)*, has surrounded himself with legal talent and his transition team reflects it.
So what are the top legal jobs open? Well only the positions of Attorney General (& deputies) and Solicitator General, WH counsel, dozens of department & agency general counsels, several unfilled federal judgeships and all the US Attorneys. Add in jobs not specifically legal but often held by lawyers like the Secretary of Homeland Security and the heads of the SEC, FCC, FEC, FTC, PTO, as well as jobs not vacant but might soon be (like some seats on the Supreme Court) and you have a lot to discuss.
I'm going avoid major speculation (I'm appending a list of links of the major recent articles), but will note that six names have been floated enough for so many options, that I can't help thinking that it is likely that most will take some role in the Obama administration (or be appointed to a federal court):
- Eric Holder. Obama VP vetter & Deputy AG under Clinton. (wiki bio)
- Elena Kagan. Dean of Harvard Law School. (Harvard bio w/ cv; wiki bio)
- Judge Sonia Sotomayor of New York. U.S. Circuit Court of Appeals, Second Circuit. (wiki bio; court bio)
- Michigan Gov. Jennifer Granholm. Former US Attorney & state attorney general. (gub bio; wiki bio)
- Arizona Gov. Janet Napolitano. Former US Attorney & State AG. (gub bio; wiki bio)
- Massachusetts Gov. Deval Patrick. Clinton DOJ; general counsel for Texaco and Coca-Cola. (gub bio; wiki bio)
Holder has been a top Obama advisor throughout the campaign and seems a lock for AG. Napolitano, who could continue the hardnosed theme set by the selection of Raum Emanuel as chief of staff, has been touted for AG and Homeland Security (or maybe the Supreme Court--where the former attorney for Anita Hill could resume her aquaintance with Clarence Thomas). Kagan and Sotomayor have been touted for the Supreme Court with insiders expecting perhaps two liberal justices to retire in the window of time when a Democratic president can replace and the Senate confirm likeminded replacements. Patrick is an Obama soulmate and could see a top job, maybe WH counsel or AG, although the cronyism of the Bush administration (the ghost of Gonzalez hangs thick) may work against him.
But I can't have all the fun, let these guys speak:
- Mike Allen, Dems sketch Obama staff, Cabinet, Politico (November 3, 2008)
- Garrett M. Graff, Who Might Be on an Obama Cabinet? Washingtonian (May 2008)
- Martha Neil, Better Question: Who Isn’t a Lawyer on Obama’s Transition Team? ABA Journal Weekly (online)
- Terry Carter and Stephanie Francis Ward, The Lawyers Who May Run America ABA Journal (November 2008)
- Andrew Cohen, Obama, The Supreme Court And DOJ, CBS News (Nov. 5, 2008)
- Rachel Breitman, First Female Solicitor General? Could Happen In Obama's Administration AmLaw Daily (November 6, 2008)
- Marisa McQuilken and Brian Katkin, An Early Line on Legal Slots in Obama Administration, Legal Times (November 6, 2008)
- Profiles on Napolitano, Patrick & Holder see Huffington Post
- Howard Fischer, Will Napolitano go to Washington? Yuma Sun (November 5, 2008)
- Kelly House, Granholm listed as high court option: Expert predicts Mich. governor could be Supreme Court pick, The (Michigan) State News (October 13, 2008)
- Obama court pick could be Granholm, Washington Post (October 7, 2008)
* Can you guess the first holder of a Harvard J.D. to be president. Hint: He did not have as decisive a victory as BHO; indeed it more resembled that of Obama's immediate predecessor...
I’ve avoided blogging the last few weeks because I’ve got politics on the brain and don’t want to employ a University computer system for anything that could be construed as campaigning. This has been hard because there was been a wonderfully crazy district judge’s race underway that is already been making legal history, especially for what it may show about the “anything goes” judicial electoral environment that has developed since Republican Party of Minnesota v. White.
However, I do want to encourage everyone to vote and would urge everyone to read fellow FOB (friend of Brandeis) Joe Rooks Rapport’s front page article on the CJ’s Sunday Forum. It’s a wonderful counter-argument to the view that my-vote-doesn’t-matter.
Also, for those interested in following the Kentucky elections on Tuesday, I’d recommend State Board of Elections website. Live state and county results are posted regularly throughout the night. There are also historical results there that you can consult to identify trends. If you want to look particularly knowledgeable, look at Dem./Rep. spreads in key counties in recent elections. For example, after reviewing the razor-close 2004 senatorial election where Sen. Jim Bunning (R) beat Daniel Mongiardo (D) by a mere 22,652 votes, you can sprinkle your barroom analysis with insights like “if Lunsford runs up a margin of more than 64,000 votes in Jefferson County, then McConnell needs to win big in the [Jackson] Purchase.”
I’d also tip you to the KET website, http://www.ket.org/election/, which will be streaming its excellent KET/PBS election night coverage live online.
Finally, after you have voted, driven a busload of voters to the polls and annoyed scores of land-line owners with phone calls, you might want to head over to the Filson Historical Society at noon to view “A Sampling of U.S. Presidential Campaigns and Elections,” where curator James Holmberg will show off the Filson's large collection of presidential campaign and election materials.
Whew! Made it to the end without getting partisan. Only 49 1/2 hours to go....
If the House votes for or against the Wall Street/Main Street bailout/rescue today, the response by the stock exchanges will not be the best measure of the "market" reaction. (See my regulally updated post, "Legislative History on the Fly: The Wall Street Bailout," to follow the current measure itself). Rather, as the key purpose of this massive plan is to increase liquidity in the frozen credit markets, there are some key quantifiable measures to watch:
TED Spread: this is difference between the interest rates on interbank loans and short-term U.S. Treasury bills. (Specifically it is the spread between a 3-month T-Bill and the 3-month LIBOR in Euros (more below)). It is considered a key measure of perceived credit risk because a T-bill is considered risk-free and the 3M LIBOR rate is thought to be the most reliable measure of the market rate between banks. Normally, this spead is around zero. The fact that it has been resting the last few week in the the 3s reflects serious liquidity problems. If it returns to around 1 after the bailout bill, that is a good sign. Bloomberg website tracks it at http://www.bloomberg.com/apps/quote?ticker=.TEDSP:IND .
LIBOR EUR 3M: The three-month LIBOR (London Inter-Bank Offered Rate) is considered the most stable measure of international liquidity. It is upon this rate that loans between banks around the world are based and also underlies many adjustable rates, including ARMs. Check it at this site: http://www.bloomberg.com/apps/quote?ticker=EE0003M%3AIND .
LIBOR USD Overnight: The overnight LIBOR is those most sensitive reflection of liquidity. Lately, it was been a measure of how much the the credit markets are freaking out. After the House vote on Monday, it reached 6.88%--showing that essentially the credit markets were frozen (in a "normal" economic situation, it should be ins the ones and twos). Watch it at http://www.bloomberg.com/apps/quote?ticker=US00O%2FN%3AIND .
When momentous legislation is passed--think USA Patriot Act after 9/11--the textbook how-a-bill-becomes-a-law process gets chucked out the National Park Service-maintained neoclassical window. Shadowy drafts are circulated as the political branches negotiate--then a deal breaks and the legislation is hurried through Congress in a furious rush. No full hearings, detailed conference reports, or extended debates. Try finding much documentation later on USCCAN or Thomas and you are out-of-luck.
The Wall Street bailout law looks like this kind of situation but, thanks to the Internet and the news & politics blogs, at least we get to see the shadowy drafts:
- Secretary of the Treasury Hank Paulson's three-page draft (this version from NY Times, but it's everywhere)
- Press Release & SEC's order halting short-selling of finanacial services stocks
- The Dodd Senate bill draft, released overnight, appeared morning of Sept. 22 (via Politico)
- The House Discussion Draft, circulated mid-day Sept. 22 (also via Politico)
- President Bush's Speech to the Nation, Sept. 24 (CNN)
- House Republican Minority Plan, Sept. 25 (from MSNBC)
- Final Consensus Draft Bill, Sept. 28, 2008
- Text of the Amendment to the Senate Amendment to HR 3997, attaching the Emergency Economic Stabilization Act of 2008 (failed bill in House)
- Text of Senate Amendment in the Nature of a Substitute for HR 1424, substituting the revised version of the Emergency Ecomonic Stablization Act of 2008 (mirrored version on UofL site)
The feeling is that the House document is the negotiating draft for Congressional Democrats, with the plan offered by Senate Banking Committee Chair Christopher Dodd (D-Conn.) being aspirational (update: this might be wrong). Word is that House Financial Services Committee Chair Rep. Barney Frank (D-Mass) and Secretary Paulson reached agreement on incorporating some changes sought by Congress to the Treasury plan Monday night, so check this page later for more documents.
UPDATE (9/23): Secretary Paulson and Ben Bernanke, chair of the Federal Reserve System, testified before the Senate Banking Committee at 9:30 Tuesday;tape available on C-SPAN. The Senate Banking Committee website has hearing & witness preliminary statements here. After hearing, Sen. Dodd seemed a bit annoyed with Rep. Frank, whose House draft seemed to be the basis of the yet-unseen renogotiations with Paulson (though this might be some good-cop, bad-cop act on behalf of the Dems). Also, Senate Minority Leader Mitch McConnell (R-Ky.) seemed to sign on to parts of the Dodd draft, especially the part capping executive compensation for CEOS participating in the bailout. Given to the tight margins in the Senate, any Dodd-McConnell backed provision will be in the final version.
UPDATE (9/24): Fed Chief Ben Bernanke testified this morning before the Joint Economic Committee of Congress (testimony) . At 2:30 he and Sec'y Paulson testify before the House Financial Services Committee (video). President Bush announces he'll be speaking on national TV in support of bailout. Mixed signals on whether he may support some exec comp caps (with CNBC first reporting he would; then that he wouldn't).
UPDATE (9/25): McCain's dramatic parachute drop into the bailout discussions apparently had one effect: Sen. Dodd and Rep. Frank apparently have stopped sniping at each other and united around a single Democratic negotiating document, the text yet unreleased. McCain and Obama joined in bland statement, and President Bush made a speech urging Congress to pass the Paulson plan. This morning Bush, the two presidential candidates and other involved parties will meet, likely producing another plain vanilla text. Nonetheless, despite the photo-ops, Treasury and Congress continue to negotiate and all signs are that an agreement of some kind will emerge in the next day or so--unless the McCain gambit has so injected presidential politics into the delicate talks that the progress is frozen. LATE UPDATE (9/25): President Bush's meeting is an apparent disaster with House minority (GOP) leadership rejecting the Paulson-Congressional leadership plan. The House minority leader Rep. John Boehler (R-OH) pitches a new GOP plan, blindsiding everyone (except perhaps McCain). Everyone leaves angry and there is no joint statement. Speaker Nancy Pelosi (D-CA) insists that she isn't going to pass the bill with only Democratic votes and allow the GOP to rail against it in campaign ads; Frank & Dodd blame McCain for scuppering deal.
UPDATE (9/26): Day begins with foreign exchanges and US futures market in slide. Congressional leadership restarts talks with Paulson. Appears to be two options: (1) accept elements of House GOP plan to get consensus (this might however lose Democratic votes); (2) the Bush administration must sweeten the deal for Democrats, including billions more money to prevent foreclosures & perhaps a promise of no Bush veto on a stimulus package Pelosi is pushing, so that the Democratic leadership can go ahead without as many GOP votes. Looks like there are enough votes in the Senate so the House is the ball game. UPDATE (midday): Reuters is reporting that a 102-page draft proposal is being circulated; I'm trying to find the text.
UPDATE (9/27): Reuters is reporting the major features of the 102-page draft being negotiated. (No luck yet finding this text). Talks continue along the lines pursued before the disasterous White House meeting, despite the House GOP revolt, although there are efforts to add a provision from the GOP plan that would give the Treasury secretary the option to have the government insure some distressed mortgage-backed securities and so limit the amount it would have to buy. This is hoped to provide cover so that some GOP House members will support the plan.
UPDATE (9/28): At 5:15pm EST CNN is reporting that the text of a bailout agreement that can pass both houses of Congress has been nearly finalized. Party cancuses are reviewing the plan & Speaker Pelosi is meeting the press. The text is available at speaker.house.gov and financialservices.house.gov but the House website is swamped at this time. UPDATE ON TEXT. Senate Banking Committee has the plan on its website and it is currently functioning. I've mirrored it to UofL Law servers here.
UPDATE (9/29): The bailout bill fails in House; stock markets plunge. Hair on fire, hair on fire.
UPDATE (9/30): The official bill can be found on the front page of Congress' Thomas website (thomas.loc.gov). Interestingly, it was offered as an amendment to the Senate Amendment to H.R. 3997, the "Act to amend the Internal Revenue Code of 1986 to provide tax relief and protections for military personnel, and for other purposes, " the "other purposes" being (in this case) to serve as a vehicle to get the bailout before the House ASAP. (To confuse things more, this bill was known until recently as the "Defenders of Freedom Tax Relief Act.") NOTE: Since this attempt to pass the plan failed, it is possible that another piece of legislation may be chosen if the rescue plan returns for another try. I've heard reports that the Senate may take the lead on Thursday, which would likely neccessitate a switch, further tangling the legislative history. (UPDATE: This proved true, see below).
UPDATE (10/1): Senate plans to vote after sundown today on the rescue plan, as a substitute to HR 1424. The new bill revives a failed Senate version of the bill to revise the Alternative Minimum Tax that had failed in the House but is supported by House GOP members (and many Democrats). The bill also has disaster relief and other features that have balloned the text up to 451 pages. By the way, HR 1424 was originally written to ban genetic discrimination in regard to health care and employment (and was passed as such by the House), but the first line of the substitute completely strikes that language and inserts the bailout bill in the hollowed out husk. (Ironically, the original bill was named after the late Sen. Paul Wellstone of Minnesota, a liberal crusader who was not known as a great friend of Wall Street). Yet another legislative history cul-de-sac is laid upon the record. UPDATE: The Senate passed the bill at around 9:15pm EST by a 74-25 vote. McCain, Obama and Biden voted "aye." Sen. McConnell voted yes; Sen. Bunning voted no.
UPDATE (10/2): Indications are that the House will vote up-or-down around noon Friday on the Senate version without any changes, unless the party whips believe there are not enough votes.Those whips are working extra diligently that there are no surprises for the leadership like there were on Monday.
First, I want to direct folks to the videos by UofL law professors Sam Marcosson and Luke Milliken (with Dean Jim Chen) on the law school Constitution Day page, here.
Second I’d like to point out a recent study by McConnell Center director and political scientist Gary Gregg which highlighted important creators of our Constitution who have been neglected by history. UofL's Gregg and political scientist Mark David Hall polled more than 100 historians, political scientists and law professors to find those “who played a major role in the nation’s founding but who have been unjustly neglected by history.” The results will be detailed in a future book, but Dr. Gregg released the data in a September 15 UofL press release to give us a C-Day taste: .
The top-ten “forgotten founders” are, in order.
1. James Wilson (PA)
2. George Mason (VA)
3. Gouverneur Morris (NY)
4. John Jay (NY)
5. Roger Sherman (CN)
6. John Marshall (VA)
7. John Dickinson (PA)
8. Thomas Paine (World)
9. Patrick Henry (VA)
10. John Witherspoon (NJ)
Like any top-ten list there are quibbles and questions, but that is what makes these things fun. One thing I noticed was that three U.S. Supreme Court justices are on the list, but only one, Marshall, really made an impact as a judge. Wilson’s role is as an intellectual and Jay, though he is the answer to the trivia question “who was the first chief justice,” really made his impact as a politician and diplomat.
My big question is why is John Marshall number six? Was there an Obscurity-to-Significance matrix such that Marshall's great importance was muted by his relative non-obscurity? That might explain him falling behind the somewhat important but hugely unknown Roger Sherman, who falls fifth in the list of important American Shermans, behind John Sherman, Sherman Minton, Bobby Sherman and Mister Peabody’s boy Sherman.
Also when did Thomas Paine and Patrick Henry become so forgotten? Did the nuns at St. Basil’s beat their names into my schoolboy noggin for no good reason (figuratively, of course). Or is perhaps are the scholars suggesting that beyond the common-sense give-me-liberty stereotypes, the essential nature of Paine and Henry are unknown.
No top-ten list critique would be complete without the “who’s missing” list. For my “Freebird” nominees, I include Charles Pinckney of SC and Dr. Benjamin Rush of PA. For better or worse, it's hard to imagine the constitutional convention without Pinckney and if a political revolution needs corresponding revolution in ideas, then Rush’s innovative thinking about areas as diverse as infectious medicine and prison reform reflect it.
I’ve looked through the UofL library catalog to put together a reading list of scholarship of the ten BFFs (best forgotten founders) and have noticed a few things. First, the rakish Gouverneur Morris is certainly been un-forgotten this century, with 4 new books since 2000. Second, Sherman is really, really obscure, with nothing published in the last quarter-century. Third, John Marshall forgotten? Really? Ever? Not in legal publishing, with every decade producing a spate of books about the man who made the Constitution in his own image. I include only one title in the list, an intellectual comparison of Marshall and Jefferson’s concept of the new republic:
- Mark David Hall, The political and legal philosophy of James Wilson, 1742-1798 (Columbia : University of Missouri Press, c1997).
- Jeff Broadwater, George Mason, forgotten founder (Chapel Hill : University of North Carolina Press, c2006).
- James J. Kirschke, Gouverneur Morris : author, statesman, and man of the world (New York : Thomas Dunne Books, 2005).
- Melanie Randolph Miller, Envoy to the terror : Gouverneur Morris & the French Revolution (Dulles, Va. : Potomac Books, c2005.
- Richard Brookhiser, Gentleman revolutionary : Gouverneur Morris, the rake who wrote the Constitution (New York : Free Press, c2003).
- William Howard Adams, Gouverneur Morris : an independent life (New Haven : Yale University Press, c2003).
- Frank W. Brecher, Securing American independence : John Jay and the French alliance (Westport, Conn. : Praeger, 2003).
- James F. Simon, What kind of nation : Thomas Jefferson, John Marshall, and the epic struggle to create a United States (New York : Simon & Schuster, c2002.
- Milton E. Flower, John Dickinson, conservative revolutionary (Charlottesville : University Press of Virginia, 1983).
- Craig Nelson, Thomas Paine : enlightenment, revolution, and the birth of modern nations (New York : Viking, 2006).
- Eric Foner, Tom Paine and revolutionary America (Publisher: New York : Oxford University Press, 2005).
- Harlow Giles Unger, America’s second revolution : how George Washington defeated Patrick Henry and saved the nation (Hoboken, N.J. : John Wiley & Sons, c2007).
- Jeffry H. Morrison, John Witherspoon and the founding of the American republic (Notre Dame, Ind. : University of Notre Dame Press, c2005).
The latest Kentucky Gazette in my office mailbox (dated August 13, 2008--the word latest is relative), has an excellent article on the Kentucky Consensus Forcasting Group, the bipartisan collection of economists that monitor the state's revenues and the economy on the joint behalf of the govenor and legislature. This quiet, if not exactly secretive group, was formally established by law (KRS 48.115) in 1994 (after a period of informal existance) to make sure that the branches could spend their time squabbling over how to spend Kentucky's money, not over how much money there was to spend.
The group is made up of seven distiguished economists chosen jointly by the state budget director (currently Mary E. Lassiter) and the Legislative Research Commission. The group is staffed by the LRC but works closely with the state budget director who convenes the group in the fall and winter in the year before the even-year budget session of the legislature, and as called by the governor. The group monitors three factors: state sales-tax receipts, state property tax revenues (which together make up the bulk of the commonwealth's revenues), and the nation's economy. As the Kentucky Gazette article shows, their predicting record is pretty good, with the wild card being the national economy.
With the the economy stalled, housing prices dropping and the stock market on free-fall, it may be of interest to know who these professionals are, so I'll list them with links to existing bios, if I can find them:
- Chair, Dr. Lawrence K. Lynch (apptd. 1994; emeritis prof. of econ. Transylvania U; tax expert & consultant to LRC since 1975)
- Dr. James R. McCabe (apptd. 1996; assoc. prof. finance at UofL; former chair of UofL econ. dept. & member of faculty since 1973. Research are is market forecasting; see CV)
- Dr. James F. O'Connor (apptd. 1996; prof. econ. EKU; chair of econ. dept, 1989-97; expert in econometric modeling; see EKU webpage)
- Maria Gerwing Hampton (apptd. 2007; vp & senior branch exec. Louisville br. of Federal Reserve Bank of St. Louis; banking exec. at Linerty Nat'l\Bank One Ky for 26 years; see FRB bio)
- Dr. Bruce K. Johnson (apptd. 2007; prof. econ. Centre College; see faculty webpage)
- Dr. David E. Wildasin (apptd. 2007; endowed prof. public finance & econ at UK's Martin School of Public Policy; see faculty webpage with links to bio & CV)
- Dr. Virginia (Ginny) Wilson (apptd. 2007; adj. prof.at UK's Martin School of Public Policy; retired from LRC after years as economist for legislature)