by Matt Braun
The states, left to their own, adopted electoral methods best described as higgledy-piggledy. Five of the original thirteen state constitutions made mention of voting by ballot.22 “An opinion hath long prevailed among diverse good people of this state,” wrote the framers of New York’s 1777 Constitution, “that voting at elections by ballot would tend more to preserve the liberty and freedom of the people than voting viva voce”; they proposed a “fair experiment” with the paper ballot.23 In 1799, Maryland became the first state to require paper voting in all statewide elections. The Twelfth Amendment, ratified in 1804, mandated that members of the Electoral College “vote by ballot.” By no means, however, did paper voting become universal. The citizens of Kentucky voted viva voce until 1891.
Early paper voting was, to say the least, a hassle. You had to bring your own ballot, a scrap of paper. Then you had to (a) remember and (b) know how to spell the names and titles of every candidate and office. If “John H. Jones” was standing for election and you wrote “John Jones,” your vote would be thrown out. (If you doubt how difficult this is, try it. I disenfranchise myself at “comptroller.”) Shrewd partisans began bringing prewritten ballots to the polls and handing them out . . . with a coin or two. Doling out cash—the money was called “soap”—wasn’t illegal; it was getting out the vote.
Meanwhile, the eighteenth-century’s brilliant experiment in republicanism gave way to the unruly exuberance of nineteenth-century democracy. New states entering the union adopted constitutions without any property qualifications for voting, putting pressure on older states to eliminate those restrictions. The electorate doubled and then tripled. And still it kept growing. As suffrage expanded—by the time Andrew Jackson was elected president in 1828, nearly all white men could vote—scrap-voting had become more or less a travesty, not least because the newest members of the electorate, poor men and immigrants, were the least likely to know how to write.24
In stepped political parties, whose rise to power was made possible by the rise of the paper ballot. Party leaders began to print ballots, usually in newspapers, either long strips, listing an entire slate, or pages meant to be cut to pieces, one for each candidate. These ballots came to be called “party tickets” because they looked like train tickets (and which is why, when we talk about someone who votes a single-party slate, we say that he “votes the party ticket”). The printing on ballots of party symbols (that’s where the elephant and the donkey come from) meant that voters not only didn’t need to know how to write; they didn’t need to know how to read, either.25
At first, party tickets looked to be illegal. In 1829, a Boston man named David Henshaw tried to cast as his ballot a sheet of paper on which were printed the names of fifty-five candidates, his party’s entire slate. Election officials refused to accept his ballot. Henshaw sued, arguing that he had been disenfranchised. When the case was heard before the state’s supreme court, the decision turned on whether casting a printed ballot violated a clause in the state’s constitution, requiring a written one. The Massachusetts Constitution, only decades old, had already been outpaced by the times. “It probably did not occur to the framers of the constitution,” the Court observed, in a landmark ruling in Henshaw’s favor, “that many of the towns might become so populous as to make it convenient to use printed votes.”26
The ticket system made voting easier but only at the cost of limiting voters’ choices. It also consolidated the power of the major parties while, curiously, promoting insurgency, too: party malcontents could print their own ballots, promoting their own slate of candidates; “knife” a candidate by stacking up a pile of tickets and then slicing out someone’s name from the whole stack at once; or distribute “pasters,” strips of paper with the name of a candidate not on the party ticket, to be pasted over his opponent’s name. (Polls were stocked with vats of paste.)27 Party tickets led to massive fraud, corruption, and intimidation. A candidate had to pay party leaders a hefty sum to ensure that his name would appear on the ticket and to cover the costs of printing tickets and buying votes. (One estimate put the midcentury price of a congressional seat in New York City at over $200,000.)28 Ballots grew bigger and more colorful, so brightly colored that there was no way a voter could hide his vote.
But wanting to hide that vote now began to seem, in some quarters, eminently reasonable.29 In 1851, the Massachusetts legislature mandated the use of uniform envelopes, to be supplied by the secretary of state. This proved controversial. “To say that the citizen shall vote with a sealed bag, or not at all,” critics argued, “is an act of despotism.” What honest man was ashamed of his vote?30 In 1853, when the Massachusetts legislature changed hands, the new majority made envelopes optional, having accepted the argument that it was its duty to give every citizen the right “to vote as his fathers, did, with an open ballot.”31
Meanwhile, on the other side of the world, someone came up with a startling idea. What if the government were to provide not just envelopes but ballots, too? An election law passed in Australia in 1856 detailed, quite minutely, the conduct of elections, ordering that no campaigning could take place within a certain distance of the polls and requiring that election officials print ballots and erect a booth or hire rooms, to be divided into compartments where voters could mark those ballots secretly. In 1888, Massachusetts passed An Act to Provide for Printing and Distributing Ballots, the model for all that followed.32 Elsewhere, state legislatures swiftly adopted the same reform, persuaded, no doubt, of the need to clean up elections but also, in some places, eager to solve the “problem” of the expansion of the suffrage by . . . restricting it.
An Australian ballot, a ballot printed by the government, a ballot that voters had, even minimally, to read, made it much harder for immigrants, former slaves, and the uneducated poor to vote. (Women, of course, couldn’t vote until the passage of the Nineteenth Amendment, in 1920.) Some precincts formally imposed and selectively administered literacy tests; others resorted to ranker chicanery (in 1894, one Virginian congressional district printed its ballots in Gothic letters). In the South, where black men had been granted suffrage by the Reconstruction Act of 1867, it was fear of the black, Republican majority that led many former Confederate states to adopt the reform in the first place. As a Democratic campaign song sung in Arkansas in 1893 put it:
The Australian ballot works like a charm
It makes them think and scratch
And when a Negro gets a ballot
He has certainly met his match.
The year after Arkansas passed its Australian ballot law, the percentage of black men who managed to vote dropped from 71 to 38.33 That wasn’t remedied until 1965, with the passage of the Voting Rights Act.
Times change. That’s why everyone can vote. And that’s why we’re not still voting with corn and beans.
At the Green Dragon Tavern, I asked Austin Hess whether he was worried Sarah Palin was hijacking the Tea Party. He shrugged. “The enemy of my enemy is my friend,” he said. “I don’t agree with her about a whole lot of things, but we’re not conducting purity tests. We’re building coalitions.” Patrick Humphries came by, handing out flyers about Tax Day. Humphries didn’t have much use for Palin, either. “She’s flamboyant. She’s matured a lot. She has the right mind-set, but she’s not our leader. We don’t need a leader. We’re all about devolution. We’re going back to the Constitution. If she were running for president, would I vote for her? Eh.”
Humphries was born in Indiana and grew up in Iowa. “I have always been a conservative,” he told me, taking a seat. “I register Republican once a year, for the primaries, and then reregister as an Independent. I was not a supporter of McCain, who wasn’t a true conservative.” He went to his first Tea Party meeting in March 2009. “The radical change that is going on has to be stopped. The losses of liberty are startling. I don’t think people understand the government takeover of the economy, but it will represent a loss of freedom.” Humphries and I kept talking past one another. He started t
alking about the Louisiana Purchase. I thought he meant Jefferson’s deal with Napoleon, in 1803. No, he meant the payoff of $300 million in federal money to the state of Louisiana to buy Democratic senator Mary Landrieu’s support for the health care plan.
Humphries didn’t vote for Barack Obama; he didn’t like what he was doing; he didn’t want to foot anyone else’s bills; he sent Scott Brown to Washington to stop all that, and Nancy Pelosi thwarted him. Humphries was concerned about his liberty. He handed me a pocket-sized copy of the Constitution, printed by the National Center for Constitutional Studies, whose website refers to the Constitution as a “miracle” and also sells a biography series called “The Real Founding Fathers,” as endorsed by Glenn Beck. “I don’t think the Founding Fathers wanted lobbyists running around Washington,” Humphries said. He quoted the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Humphries felt both powerless and poorly represented and even disenfranchised; he wanted that power he was supposed to get from the Tenth Amendment. “The Constitution gave us a bedrock. Ours was meant to be a very simple, straightforward government. The more power and money that goes to Washington, the less that’s available to the states and to the people.”
The National Center for Constitutional Studies was started in Utah in 1967, to promote originalism, the idea that the original intent of the framers is knowable and fixed and the final word. When the framers were still alive, people who wanted to know what they meant, by, say, a particular phrase, couldn’t really ask them. Delegates to the Constitutional Convention pledged themselves to secrecy. And the more time passed, the remoter the Revolution, the more inscrutable the documents (even the meaning of the words changed), the greater the distance between now and then, the more demanding the act of interpretation. In 1816, when Jefferson was seventy-three, many of his Revolutionary generation having already died, he offered this answer, when asked what the framers would suggest about how to deal with this problem. “This they would say themselves, were they to rise from the dead”: “laws and institutions must go hand in hand with the progress of the human mind.” (To paraphrase the historian Carl Becker, the question the Enlightenment asked was not, “What would our forefathers do?” but “How can we make society better?”)34 Jefferson put it this way: “Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human.” In Federalist 14, Madison asked, “Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?”35 The founders were not prophets. Nor did they hope to be worshipped. They believed that to defer without examination to what your forefathers believed is to become a slave to the tyranny of the past.
Nowhere has the tyranny of the past proven more despotic than on the matters having to do with race. In the decades between the Revolution and the Civil War, every story about the Revolution was a story about slavery, and the Constitution’s failure to end it. “The page of impartial history bears testimony to the fact that the first martyr in the American Revolution was a colored man by the name of Attucks, who fell in King street, Boston,” a Boston-born African American abolitionist named William Cooper Nell pointed out in 1848, launching a campaign to erect a statue to Attucks on the Common. (Nell is the historian who found that runaway slave ad, from 1750, identifying Crispus Attucks as a fugitive from Framingham.) The next year, in Mardi, Herman Melville’s narrator travels to a fictionalized republic, where hieroglyphics chiseled in an arch at the entrance read: “In-this-republican-land-all-men-are-born-free-and-equal” but then, in smaller letters, “Except-the-tribe-of-Hamo.”36 That same year, Boston’s blacks petitioned the school committee to integrate the city’s public schools, insisting on racial equality.37 In 1850, in Roberts v. City of Boston, Lemuel Shaw, chief justice of the Massachusetts Supreme Judicial Court (and Melville’s father-in-law), upheld segregation, countering Charles Sumner’s claim that segregation was based on nothing more than prejudice by declaring, “This prejudice is not created by law, and probably cannot be changed by law.” (Shaw’s ruling was later cited in Plessy v. Ferguson.) In Massachusetts, the first test of the 1850 Fugitive Slave Act came the next year, when Shaw heard the case of Thomas Sims. Shaw ruled that the fugitive Sims must be returned to slavery. “What a moment was lost,” Emerson wrote, “when Judge Shaw declined to affirm the unconstitutionality of the Fugitive Slave Law!” Meanwhile, Nell petitioned the Massachusetts legislature for funding for his Attucks statue. After the legislature said no, in 1851, Nell led black Bostonians in celebrating Crispus Attucks Day, every fifth of March, in Faneuil Hall.38 When Theodore Parker gave an address in Boston in 1852, on the first anniversary of Sims’s being taken back into slavery, he insisted that Bostonians had no right to celebrate the Revolution so long as slavery endured. “Some of you, I think, keep trophies from that day, won at Concord or at Lexington,” Parker said. “I have seen such things,—powderhorns, shoe-buckles, and other things from the nineteenth of April 1775. Here is a Boston trophy from April 19, 1851. This is the coat of Thomas Sims.” He held up a garment, ripped to tatters. “Go Massachusetts! keep thy trophies from Lexington! I will keep this coat to remind me of Boston, and her dark places, which are full of cruelty.”39 On July 4, 1854, William Lloyd Garrison spoke at an antislavery rally in Framingham. Standing in front of an American flag hung upside down and bordered in black, Garrison burned a copy of the Constitution, calling it a “covenant with death, an agreement with hell.” As the crowd cried, “Amen,” Garrison ground the ashes of the Constitution beneath the heel of his shoe.40
That same year, Anthony Burns, who was born into slavery in Virginia, stowed away aboard a ship heading for Boston, explaining, “I heard of a North where men of my color could live without any man daring to say to them, ‘You are my property.’ ”41 In Boston, Burns was arrested under the terms of the Fugitive Slave Act. Boston’s Vigilance Committee protested his arrest at Faneuil Hall on May 26. Thomas Wentworth Higginson left the meeting and, with a crowd of like-minded men, went to the Court House, to try to rescue Burns. In the melee, a federal marshal was killed. Later, when marshals marched Burns to the docks, there to board a boat to Virginia, fifty thousand Bostonians marched alongside, crying out, “Kidnappers!”42 In 1855, when William Cooper Nell published Colored Patriots of the American Revolution, Harriet Beecher Stowe supplied an introduction, noting that black patriots had rendered magnanimous service, fighting for “a nation which did not acknowledge them as citizens and equals.” The book’s frontispiece is an engraving of the Boston Massacre, based on Paul Revere’s, in which Attucks has collapsed into the arms of white patriots. In the foreground, fallen from his head, lies his tricornered hat.43 In antebellum America, every story about the Revolution was a story about slavery.
In 1857, in Dred Scott v. Sandford, the Supreme Court, enslaved to the tyranny of the past, ruled that the framers had considered blacks “as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they have no rights which the white man was bound to respect.”44 That’s what Illinois senator Stephen Douglas and his Republican challenger, Abraham Lincoln, debated, the next year. “I believe that this government was made on the white basis,” Douglas said. “It was made by white men for the benefit of white men and their posterity forever.” Lincoln disagreed: “I believe the entire records of the world, from the date of the Declaration of Independence up to within three years ago, may be searched in vain for one single affirmation, from one single man, that the negro was not included in the Declaration of
Independence,” he said. “I think I may defy Douglas to show that any President ever said so—that any member of Congress ever said so—or that any man ever said so, until the necessities of the Democratic party had to invent that.”45
The question debated by Lincoln and Douglas was historical, but the founding documents couldn’t settle it because the founders hadn’t settled it. Even the Civil War didn’t settle it. “Have You Ever Seen the Words Forced Busing in the Constitution?” That was a sign carried in Boston, on March 5, 1975, at a reenactment of the Boston Massacre on its 205th anniversary. In 1974, Judge W. Arthur Garrity, a federal district court judge, mandated the integration of Boston’s public schools—requiring the forced busing of children, from one neighborhood to another. White antibusing activists turned up at Bicentennial events in force. As J. Anthony Lukas reported in Common Ground, “Opponents of busing saw themselves as victims of the same oppression which had beset eighteenth-century Bostonians and said they were fighting for the same right to control their own lives. State Representative Ray Flynn warned, ‘The sacred principles on which this nation was founded are threatened by a new tyranny, a tyranny dressed in judicial robes.’ ” On the day of the 1975 Boston Massacre reenactment, four hundred antibusing protesters in colonial garb marched to the Old State House carrying a coffin marked “R.I.P. Liberty, Born 1770—Died 1974.” When the reenactors portraying Preston’s grenadiers fired, all four hundred protesters fell to the ground.46
