Tuesday, November 6, 2012
In The Founders’ Bush v. Gore: The 1792 Election Dispute and its Continuing Relevance, published in Indiana Law Review and available in draft on ssrn, Professor Edward B. Foley provides a historical perspective on election disputes.
Foley argues that the contentious election for Governor of New York between the incumbent, George Clinton, and the challenger, John Jay (pictured) provides an important window into the constitutional shortcomings of elections. Foley demonstrates that when the Founders were confronted with a vote counting dispute, they were ill-equipped to resolve it.
Professor Foley discusses the role of lawyers and legal principles, but also tells us that after "the canvassing committee announced its decision against John Jay, there was great public agitation," including what Alexander Hamilton called talk of the “bayonet.” Foley argues the Founders were a "generation of revolutionaries who were not afraid of extralegal means to secure their fundamental right to a representative democracy." He reminds us that the "it was not just the revolt against England that was revolutionary," but also the "Constitution itself was an unauthorized break from the legal regime of the Articles of Confederation." The question for John Jay and his supporters "was whether to take to the streets and demand a new constitutional convention for the state of New York that would undo what they viewed as the partisan atrocity committed by the canvassing committee."
A good read for Election Day.