What Were they Thinking? The History of the Electoral College.

 

You think you’re unhappy with the Electoral College. Alexander Hamilton was its original champion, he participated in the resulting ugly House of Representatives' selection of the President in 1800, had his version of meaningful reform via the Twelfth Amendment shot down and then he himself was shot and killed in a duel precipitated largely by the election of 1800. There was a rather good play about it. Maybe you've heard of it.

Part II, How it Started.

Under the original Constitution, the House of Representatives was to be the only part of the federal government directly elected by the “people.” The quote marks are there because the only people who could vote were almost exclusively white males over 21 who owned property. The framers of the Constitution considered, and quickly rejected, the idea that the President could be chosen by even this exclusive group.  The United States was, both before and after the adoption of the Constitution in 1789, a collection of powerful and independent minded states. Daniel Webster’s famous and politically groundbreaking speech where he declared that he spoke “not as a Massachusetts man, nor as a Northern man, but as an American and a member of the Senate of the United States” was still more than 60 years away.

The framers fully expected voters to vote only for a candidate from their own state. Aside from George Washington, the public was largely only aware of leaders in their own state and had access only to local news.  The fear was that Virginia and New York which held the largest populations would always have the top vote getting candidates in any national popular vote. The Electoral College they worked out called for each state legislature to choose, in any way they wanted, individual electors.  The number of electors they could choose would be equal to the number of Senators and member of the House of Representatives that state had.  This gave a minimum of three electors to the smallest states, somewhat boosting their prospects.

Electors could not be holders of a federal office. Each elector would have two votes for President.  One of those votes had to be for a person not from their state.  The winner of a majority of votes would become president and second place would become Vice President.  If no person wins a majority of the vote or there is a tie, the House of Representatives holds a vote with each state having a single vote. Alexander Hamilton explained the thinking behind this system in an anonymously published article in New York newspapers that became Federalist Paper No. 68. This is what he expected:

1. Choice of the president should reflect the "sense of the people" at a particular time, not the dictates of a faction in a "pre-established body" such as Congress or the State legislatures, and independent of the influence of "foreign powers".^[32]
2. The choice would be made decisively with a "full and fair expression of the public will" but also maintaining "as little opportunity as possible to tumult and disorder".^[33]
3. Individual electors would be elected by citizens on a district-by-district basis. Voting for president would include the widest electorate allowed in each state.^[34]
4. Each presidential elector would exercise independent judgment when voting, deliberating with the most complete information available in a system that over time, tended to bring about a good administration of the laws passed by Congress.^[32]
5. Candidates would not pair together on the same ticket with assumed placements toward each office of president and vice president.
6. The system as designed would rarely produce a winner, thus sending the presidential election to the House of Representatives.

Footnotes are references to the Wikipedia entry. https://en.wikipedia.org/wiki/United_States_Electoral_College

In hindsight, this was all very naïve and the reality of its flaws became immediately evident after George Washington, the only candidate every to receive 100% of the possible electoral votes, announced he would not run for a third term.

Disenfranchisement is Baked into the System

The original system has built into it this aspect that allows states to move all of their electoral votes to one candidate, no matter how divided the popular vote. Even though Hamilton had this expectation that states would apportion or assign electors by district, that was not spelled out for a reason. The disenfranchisement of certain people was quite intentional.  Those people were slaves. In order to balance the power between the Southern slave holding states and the Northern states, slaves were counted for the purpose of apportioning members of the House of Representatives.  Counted, but reduced to 3/5^ths of their actual number.  Slaves were not allowed to vote, but their numbers gave greater power to the slave holding states, including greater electoral votes.  The original Electoral College fully intended for Slave holding states to use their electoral votes allotted because of the slave population to reflect the will of the slave holders.  In this way, we still have the legacy of 48 out of 50 states that can assign electoral votes not by district, but statewide against a large portion of the actual popular vote up to and including a majority of it.

The Election of1800!

The failure of the original Electoral College was that it did not anticipate the way political parties would work. The Federalists nominated John Adams, the incumbent and the Democratic-Republicans formally chose Thomas Jefferson as their Presidential Candidate and Aaron Burr to be the Vic President. North Carolina and Pennsylvania were the only states that split or apportioned electoral votes. John Adams received 65 votes and Jefferson received 73.  Technically every candidate ran for President. In order for a party to choose both their President and Vice President meant that they had to follow a plan to vote at least one less electoral vote for the VP. Each elector had two votes, but somehow Aaron Burr also wound up with73 votes. Some say the party messed up the execution of their plan, but other speculate that Burr hatched a scheme. As a result, the decision went to the House of Representative to decide. The first house vote ended in a tie, as did the next 34 votes.  Hamilton had become a fierce rival of Burr and waged a strong campaign among the House delegation in favor of Jefferson, the nominee of the opposing party. On the 36^th ballot Jefferson won.

Amendment XII

The political maneuverings of the House vote were thought to be unacceptable and unbecoming for the national body to be seen as openly grasping for power. Hamilton in particular had already seen the Electoral College as failing to achieve its intended purpose and began to work toward amending the Constitution before the next election. Hamilton proposed dividing each state into district, roughly proportional to congressional districts and having each district select one elector. Unfortunately, that proposal was rejected.

What the Twelfth Amendment actually did was to have each elector chosen as in the original Constitution but allotted one vote for President and one vote for Vice President. The elector no longer picks more than one party and the idea that the electors deliberate to choose a candidate is abandoned. Moreover, it reinforces the concept that there will only be two major parties. If a candidate fails to receive a majority of electoral votes, only the top three candidates are to be considered by the House. The idea of a runoff is not even possible from the national level. States, it assumes, will implement a system they feel best finds the majority approved candidate. Like the original thinking behind the Electoral College, this does not occur in many states, every election.

The House votes by state, and not proportionally to the population. The Vice President is chosen by the Senate, again, without regard to popular support.

Currently 33 states require electors to vote for the candidate they pledged to support prior to election day. These laws were recently upheld by the Supreme Court. The parties and/or candidates select their electors for their faithfulness thus completely flipping the original idea of the Electoral College on it’s head.  The College is not a body that chooses the President, it is merely a convoluted formula for reworking the popular vote. 

Since 1900 only twice have third party candidates received any electoral votes. In 1912 Theodore Roosevelt left the Republican Party to form the Progressive Party but was still soundly defeated by Woodrow Wilson and George Wallace ran on American Independent Party ticket as a segregationist.

Efforts to change the Electoral College have occurred frequently and despite popular opinion to makes changes, no effort has succeeded since the Twelfth Amendment. Twice proposed amendments have passed in one chamber of Congress only to fail in the other. Today several proposal have gained popularity including reforms that do no need to amend the Constitution. Those ideas will be in Part III.

https://en.wikipedia.org/wiki/United_States_Electoral_College

UPDATING THE ELECTORAL COLLEGE: THE NATIONAL POPULAR VOTE LEGISLATION  http://archive.fairvote.org/media/documents/chang.pdf

https://en.wikipedia.org/wiki/1800_United_States_presidential_election

https://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitution#Clause_3:_Electors

The Federalist Papers : No. 68 https://avalon.law.yale.edu/18th_century/fed68.asp

First It Limits Your Choices and Then It Changes Your Vote: How the Electoral College Undermines the Framers Intent and the Republican Form of Government.

 George W. Bush in 2000 and Donald Trump in 2016 won the electoral college with the second highest number of votes, but not for the reason most people think.  The popular idea is that the electoral college give greater weight to smaller, rural states so that large, urbanized states like New York and California cannot dominate presidential elections. While electoral votes are somewhat weighted toward smaller population states, that did not make a difference in 2000 or 2016, or any other recent election for that matter.  In fact, the reason a second place finisher can win the electoral vote without winning the popular vote isn’t even found in the Constitution. And more than that, it has also worked to deny the potentially most popular candidate the popular vote as well.

So, what is the system we have, how did we get it and how should it be reformed? I’ll take that three part question is in, well, these three parts:

Part I

The current system is actually both Constitutional and the law of individual states.  The U.S. Constitution does not grant any right to citizens to vote for the office of President. Rather, it allocates to each state legislature the ability to choose electors by any method they decide.  The number of electors each state has is equal to the number of members of Congress from that state: two Senators and each member of the House of Representatives. House members number exactly 435 and are apportioned roughly by population with no state getting less than one. The District of Columbia, according to the 23^rd Amendment gets the same number of electors as the least populous state, three. That makes 538 electors which makes 270 the magic number of electoral votes needed to win the Presidency. If there is a tie vote, then… well let’s save that for Part II, The Election of 1800!

All 50 states now choose electors by popular vote. Voters never see the names of the electors they are choosing. They only see the Presidential candidate those electors have pledge to vote for.  48 of 50 states award all of their allotted electoral votes by popular vote with the winner being the one with the greatest number of votes no matter how small that percentage is. Maine and Nebraska each have a system that apportions electors between candidates. Because the Constitution specifies a single one day for the election of other federal officials, all states hold their vote for President and Vice President on that date every four years. Then, on the first Monday after December 12 the electors meet at their state's capital to cast their vote.

What if an elector is chosen, but then on the first Monday after December 12 at their state's capital they decide to vote for someone other than the candidate they previously swore to support? This is the so-called faithless elector. In 18 states, they are by law free to do so, but in the other states they may be required to vote for their pledged candidate or possible may vote as they choose, but be required to pay a fine. As a practical matter, electors have remained so faithful that no election has ever been in jeopardy of being changed by faithless electors.

Electoral College Inversions

The most apparent way that the electoral college can fail to reflect a democratically elected president is when the winner of the popular election loses to another candidate who wins the electoral college.  This is sometimes called an “inversion” and it has happened four times 1876, 1888, 2000 and 2016.  In each instance the inversion did not occur because smaller states had greater electoral representation, but because the second most popular candidate won enough states by a only plurality of votes. Take 2016 where Trump won seven states and one congressional district of Nebraska with less than 50% of the total vote. (50%+ votes being divided among Hillary Clinton and other candidates). While a majority of voters in those jurisdictions cast their votes for someone other than Trump, he nevertheless took 100% of the available electoral votes meant to represent those voters. That was a total of 108 electoral votes and it made the difference in his win. This leads to the question; would Trump have won a runoff between himself and Hillary Clinton for those 108 electoral votes? The speculation on this among experts and academics is mixed, nevertheless the question certainly hangs over the Electoral College, is it a democratic process or a system that can be strategically gamed to subvert popular choice.

In the other recent inversion vote outcome, there is no expert or academic doubt that 2000 popular vote winner Al Gore would have won in a runoff without third party candidate, Ralph Nader.  The result of which would no doubt have affected the course our country took in the subsequent four years.

Blocking Out Third-Party Choices

Ralph Nader’s candidacy in 2000 was controversial because voting for Nader instead of Al Gore was said to help Bush win.  Many Nader supporter resented the fact that they were in a sense shamed for voting for the candidate they preferred most.  Others who preferred Nader voted for Gore because they didn’t want to “waste” their vote on a candidate who was sure to lose.  Still others criticized Nader for running in a race where his only influence would be as a “spoiler.” The real problem here is not third party candidate, which should rightly be part of any democratic process, but rather that allowing a plurality of votes to win, sets up a system when third party candidate support cannot be accurately reflected.  In a runoff, where no candidate can win until a 50% winner is achieved, third party candidates are not discouraged to run and their supporters can freely vote for their first choice without fear that they will be unable to vote for their second choice in a later runoff between the top candidates.  This is why no other democracy chooses it top leader with a plurality vote.

President who have won only by virtue of winning the plurality and not the majority of the vote in crucial states is increasingly frequent. 2016 isn’t the most extreme example of where the electoral system has disenfranchised the majority of voters, but it is still fresh in our memory. Bill Clinton won this way over George H.W. Bush and Bob Dole, Ronald Reagan beat Jimmy Carter and Walter Mondale. The reason for this is that the voters are closely divided between the two major parties allowing the presence of a third-party candidate with even single digits in the points to affect the election. The result of the current system is that it does not require the support of a majority of voters to elect the President. We can only speculate that Ralph Nader was the reason Bush became a president and won a second term. The same with John Anderson enabling Reagan and Ross Perot for Bill Clinton. In a country as closely and as deeply divided political as the U.S. is, a President who never achieves the support of a majority of the electorate worsens divisions among the voting population.

The worst example though must be the election of 1844, though not an “inversion,” would have elected Henry Clay over the virulently pro-slavery, pro-Manifest Destiny James Polk. Third party abolitionist James Birney drew votes in New York away from Clay sufficient to give all of that large state’s electoral votes to Polk. Polk clearly did not reflect the direction most Americans wanted to take with the Country resulting in the Mexican American War and as history would show, led us to the Civil War, the most ruinous series of events in our nation’s history.

Coming up, what was the original intent of the Electoral College, the modifications to it, and how we can reform the system even without amending the Constitution?  I’ve avoided footnotes, but here are some highly informative references.  If you have questions about specific points I’ve made, please message me.

Professor Ned Foley on the Electoral College https://equalcitizens.us/professor-ned-foley-on-the-electoral-college/

Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College https://www.amazon.com/Presidential-Elections-Majority-Rule-Jeffersonian/dp/0190060158

https://en.wikipedia.org/wiki/2000_United_States_presidential_election

https://en.wikipedia.org/wiki/2016_United_States_presidential_election

https://www.npr.org/2016/11/02/500112248/how-to-win-the-presidency-with-27-percent-of-the-popular-vote

The Election of 1844 Explained https://www.youtube.com/watch?v=GUZhMWPRt1c

https://www.salon.com/2020/07/18/the-electoral-college-has-a-surprising-vulnerability-_partner/

Late Night with Sam and Dave

That 1986 David Letterman interview with Sam Phillips is the starting off point for this week’s New York Times Sunday Book Review of Sam Phillips: The Man Who Invented Rock ’n’ Roll,’ by Peter Guralnick. Because presumably, that interview is the only direct knowledge the public has of Sam Phillips, the man. If you have never seen the interview, stop right now and watch this little over 6 minutes that will leave you saying “what just happened?”  Funny you should ask, because Robert Gordon, who writes quite a lot about Memphis music and writes it well, wrote an article about this interview in 1997 that has since stuck in my head.  It was as good as it was odd as a concept: in a breakdown of the interview, word for word and gesture for gesture, Phillips won the contest in a shutout. He uses the interview to show that if you knew Phillips and what he has accomplished, you would understand that he was neither drunk or high or crazy, but Sam just being the same Sam he had always been: the one that found and nurtured Rock ‘n’ Roll.  I started googling the article to figure out where I had read it and see if I could post a link online.  It was in the 1997 Music Issue of the Oxford American.  It is not online because they still want you to buy the back issue. Google let me know a hard copy of the magazine was on a shelf less than 2 feet from my computer. So, I’m posting the article even if it may not be within someone’s idea of fair use because let’s be honest, at 763 pages, I’m not likely to read Guralnick’s book to make a recommendation. I will say that you should read Gordon’s 3000 word article because it explains Sam Phillips (and Letterman) fairly well and I’m putting a mobile friendly version here. 

p.1

p.2

p.3 

p.4

p.5

p.6

And if the Oxford American is unhappy with post, then let me add that you should also buy this back issue.  It comes with a cd compilation of Southern music that is so good, I played it until it wore out. Sure did. If you believe that, you’ll believe a sober Sam Phillips got the best of David Letterman.

Preserving Overton Park, Part 1: A Bunch of “Little Old Ladies” Get the Supreme Court to Stop an Interstate Highway

In 1956, the juggernaut of progress that was Eisenhower’s interstate highway system was just getting a massive shot in the arm with federal funding to states at 90% of the cost.  The Tennessee Department of Transportation (TDOT) came up with a plan to use federal funds to put the new I-40 straight through the middle of Memphis including right through Overton Park. Using parks to build roads was popular with planners then because governments could save money using land they already owned or could take from cities. A group of mostly ladies organized to oppose the plan. They initially called themselves the Committee to Preserve Overton Park.  It ended up being a 15 year fight that involved political scraps at the city, state and national level, the largest environmental groups in the country and a legal fight that resulted in a landmark Supreme Court decision affecting every subsequent case where someone sues to stop the federal government from changing their community and environment.

What’s Worth Preserving?

In 1901 the City of Memphis bought 342 acres of land on the extreme East side of town including 200 acres of virgin forest and created their first city park. As of today, 142 acres remains forest.  Even in 1901 virgin forest was rare, with virtually all of the forest in this area having been cut over at least once and often twice. The older trees in the Park are now 200 -300 years old. The very oldest are over 500. A shumard oak and a pawpaw are unofficially the largest examples of their type in the state.  Some 70 species of trees, 50 different types of birds and 247 native flowering plant species are found in the forest.  

The park was developed according to the design of George Kessler, one of the most prominent landscape architects of the time and he designed it as part of a system of parkways which connect Overton Park with Riverside Park.

George Kessler's original design for Overton Park

“In Overton Park you have saved the other chief characteristics of this region by preserving in the forest conditions of the virgin forest upon that property. Nowhere in the United States, except in the Pacific Northwest, will you find tree growth as luxuriant as in the Western Tennessee and Eastern Arkansas forests, and in the two hundred acres of virgin forest in Overton Park you have a property which, as a heritage to the public for the enjoyment of nature, equals in value the cost of the entire park system to the present time.” – George Kessler in 1911

From the first decade of the 1900's

By 1956, the City had grown around Overton Park.  It sits on Poplar Avenue, the main artery of the City and is bounded by equally large North and East Parkway. Fashionable, stable neighborhoods had developed on all four sides of the Park in the 20’s and 30’s. Within the Park, the City had built a golf course, a zoo, the City’s best art museum, a stunning new building for the Memphis Academy of Art, a formal garden, and an outdoor amphitheater that hosted everything from light opera to, most famously, Elvis concerts. It had become an urban park with open spaces for recreation that were the largest in the center of town.

The Push to Build America’s Interstate Network

Also in 1956, the Federal Highway Aid Act was passed with the intention of stepping-up the creation of a network of interstates within the US as both a transportation system and for civil defense. Previous efforts had offered federal funds to support states efforts to construct interstates, but the 1956 law offered 90% federal aid which saw projects begin to take off in earnest.  A plan for the Atlantic to Pacific route of Interstate 40 went through the length of Tennessee and the State government planned a route that went East-West straight through the middle of the City as well as a beltway that looped over the North and South sides.  The plan for the route through the middle of the City was published in the papers in 1956 with construction set to begin the next year. The articles showed the route going through Overton Park.  One source I’ve read said that 300 acres, or virtually all of the Park would have been taken by the project.  The Committee to Preserve Overton Park was formed in 1957 entirely as a grassroots effort.  They were residents of the neighborhoods, members of the Garden Club and other individuals concerned that the Park was too valuable to lose. The City Commission held a hearing in 1957 and the opposition was near unanimous. Over 300 citizens turned up to protest and the mayor (then basically the chair of the Commission) was opposed.  The Commission voted to instruct the City’s engineers to develop alternative plans.

A 1963 Esso map shows I-40 entering the Overton Park in the middle of the East side and taking a diagonal swing to the Northwest. This doesn't seem to be a guess on their part because later Esso maps show the compromise route change.

That may have seemed the end of interstate planners' designs on the Park at the time. Ultimately, though, the authority in the development was held by the state with the required approval at the federal Department of Transportation level.  In 1961 it was clear the State was still pushing this route when a local hearing was announced as required by federal law.  Over the next three years, a compromise route was proposed that shrunk the route to 26 acres, roughly following the bus lane which ran by the zoo. Though that lane was 40 feet wide and only allowed the City’s buses, the interstate’s proposed right of way was between 250 and 450 feet wide through the park.  This would cut off the Zoo and part of the forest from the rest of what would be left of the park. Support for this new proposal from downtown interests as well as the local papers resulted in approval  of this route by the City Commission in 1965 and property condemnation and construction on the route east and west of the Park began.  Neither the group now called Citizens to Preserve Overton Park (CPOP) nor any other citizen had any further legal rights to stop the construction.

The compromise route

Then in 1966, Congress passed the Federal Aid Highway Act of 1966 and the Department of Transportation Act which restricted using public parks to build federal highways only when there was no “feasible or prudent alternative.” CPOP became more politically active with efforts in both the state legislature and the newly formed City Council to stop the slated construction through the Park.  In 1968, the Council voted to oppose the route through the Park. Within a month, Federal Highway Administration officials and engineers had met with the council and within a day of that, the Council reversed their decision. It was made clear that all local federal highway aid was at stake. The Secretary of Transportation, John Volpe, approved the route, but at no point was there an official statement that there were no feasible or prudent alternatives.  CPOP then took the decision to test out the new law and filed suit in the District Court of Washington, D.C.

Lawsuit

The case was moved to the Western District of Tennessee Federal Court when TDOT was added as a defendant. The Sierra Club and the Audubon Society joined CPOP as plaintiffs. CPOP lost at the trial court level and they lost on appeal to the Sixth Circuit Court of Appeals. At this point it’s worth considering that the Supreme Court did not necessarily need to take this case. After all, hadn’t the City, the State and the federal government accepted public input? Hadn’t they considered or at least listened to all of the concerns of the citizens that the law required before they made their ultimate decision?  Why is this an issue for the Courts and not simply a political matter? The trial court and the Court of Appeals agreed with this argument by the state and federal government. The City Council had approved, the land along the route on either side of the park had been acquired and buildings were cleared. What was the alternative now and wasn’t that question ultimately up to the Secretary of Transportation and not for a court to second guess?

The majority of the Supreme Court decided that the wording of the law had to be followed, regardless of whether the decision was up to the Secretary. The decision had to consider prudent and feasible alternatives and they had to show how the Secretary arrived at the decision. The Secretary cannot make a decision that is “arbitrary and capricious” and that cannot be determined without an account of how he arrived at the decision. This impacted the discretionary authority of the Secretary of Transportation clearly because of the 1966 legislation and eventually impacted other federal agencys' decision especially where decision making impacted local communities and environmental resources. The case has been cited in over 5,400 subsequent case opinions.

Aftermath

The Supreme Court’s decision did not kill the interstate or even the route through the Park outright. The case returned to the trial court, there was a 25 day trial to determine if the Secretary had failed to consider alternatives (it was found he hadn't) and the DOT continued to fight the case for another two years. TDOT held on for another 15 years with various proposed ways to go through the park. There were tunnels, side by side and over and under and then there was the so-called cut and cover where giant vents would be placed over the interstate in the park. There is a lovely artist’s rendering of this concept hanging in the reception area of the Memphis Office of Planning and Development last time I was in there.  The Secretary of Transportation never approved another plan, though some plans they suggested were rejected by TDOT as too expensive, such as the tunnels. By 1987 the State apparently gave up and deeded the right of way through the park back to the City. New houses were built over much of the neighborhoods that were demolished. I-40 was officially routed over the North loop. The partially built section of interstate was given to the City and named Sam Cooper Boulevard.

Saving the Park from the interstate may be the largest fight likely to occur, but it is not the last one and it continues to this day.  I will cover more recent threats to the assets of the Park in future installments.

References:

Old Forest Arboretum Wikipedia

Gibson, Tannera George, Not in my Neighborhood: Memphis and the Battle to Preserve Overton Park 41 U.Memphis Law Rev. 725

Mayer, Nicole, Sarah Kaplan and Michelle Green, Citizens to Preserve Overton Park v. Volpe A Case Study

Van Tol, Naomi, Forty Years Ago, March 3, 2011.

Heineke, Thomas E., Floristic Study of the Overton Park Forest, Memphis, Shelby County, Tennessee

Memphis Ikea Could be Killed off by County Assessor's Lost Cause

Tax Issue Stalls Ikea Plans

Our County property tax assessor, Cheyenne Johnson, is going to lose this appeal, risk losing Ikea's investment in this property and to add injury to insult, we the County taxpayers have to pay the legal fees.

The reason this appeal will lose is because Johnson tried the same thing just two years ago and lost at both the local and State Equalization Board levels. Commercial Appeal Sept. 17, 2015 The only thing that has changed in the last two years is that 6 acres of land within a floodplain that cannot be built on were deeded to a homeowner's association.   It was this change to the property that has provided the legal loophole that let Johnson try to change the assessment again. Otherwise, the assessment should have stayed where the state board put it, at 1.25 million and that is the value the City and Ikea counted on to work out their incentive package.  Changing the assessment will kill the incentive package which is a bigger problem that just raising the property value alone.

Back in 2013, Johnson wanted the value to be 3.4 million and the local and State boards said no, that 1.25 million was fair market value. Now Johnson says it's 5.1 million. She claims in the earlier CA article that the purchase price has nothing to do with the valuation, which it shouldn't. But If so, then how come her 3.4 million FMV just went up 50% in two years?   FMV is what the property would bring if Ikea walked away and the property went on the market today.  It's no surprise that the local board again voted unanimously to find FMV at 1.25 million and there's no reason to think the state board will do any differently than they did 2 years ago.  The only thing it will do is delay Ikea, maybe indefinitely. The earlier CA article says Johnson wants to talk settlement, but that means going back and renegotiating the whole deal with the City.

Not only could we lose revenue from sales tax and 175 new jobs, we have to pay the legal fees to make it happen.

A Memphis Monument to White Supremacy

Ever since I was a kid something has always seemed unexplained about the monuments to Confederate Generals such as the one of Nathan Bedford Forrest in a City Park in Memphis. Even back when I accepted these monuments at face value, as an honor to a hero, it never made complete sense that they were done as monuments to victors.  The over the top grand statues of Richmond’s Monument Avenue  , Stone Mountain’s Confederate version of Mt. Rushmore and Forrest’s statue all show the heroes sitting serenely and looking out to a place they help build.  The Confederates are not shown in defiance or mention a yet to be obtained liberty as is found with statues of William Wallace, for example.  The idea that the Civil War was now a “lost cause” came about almost immediately at the end of the Civil War, but no Confederate is shown with a hint of defeat as the famous End of the Trail statue in tribute to the “doomed fate” of Native Americans.   In fact these and other Confederate Monuments built around the turn of the Twentieth Century celebrate the victory not of the Civil War, but of segregation as the economic and social replacement for the loss of slavery, in short the Jim Crow Economy.

Artist's model now in the Pink Palace Museum

Fear of a Free African American Population Lead the Ex-Confederates at First to Use Terror and then Segregation

Memphis immediately after the Civil War saw a rebuilding of government and business by African-Americans and whites. Public transportation, neighborhoods, the school board, even the police force were integrated. Racial hostility existed among poor whites. A three day riot broke out which began as a conflict between Irish policemen and African-American ex Union soldiers. African-American owned businesses were targeted and 46 African-Americans were killed. A few years later, Memphis suffered a loss of more than half its population because of the yellow-fever epidemics either through the disease itself or families fleeing the city never to return. By the time the epidemics were over in the 1880s the previous community leaders had been largely replaced with a population both white and African-American from the regional rural areas. Racial hostility, which had existed all along, was now institutionalized from the top down and segregation was imposed by law.

While slavery was opposed by many outside of the slave-holding states before the Civil war and barely tolerated by the majority, segregation was openly embraced by the North. The Supreme Court’s 1896 decision in Plessy v. Ferguson gave the federal government’s blessing to “separate but equal” and segregation laws. The decision wasn’t even close with only Justice John Harlan dissenting. Before the Civil War most southern whites never owned a slave.  Nevertheless, the use of slavery was central to the South’s primarily agricultural economy. The Reconstruction period which prevented former confederates from the right to vote created the fear of an interruption in very cheap African-American labor. That fear supported a KKK that continued to rise in numbers and stature, bolstered by the association with the heroic ideal of General Forrest.

Forrest as the Hero of White Supremacy

Forrest died in 1877, an association to create a monument was created in 1891 and was it was ultimately dedicated in 1905. This period of time saw both the economic success of the Jim Crow Economy and the rise in nostalgia for the KKK. Thomas Dixon published The Clansman in 1905.  The second in his highly popular KKK trilogy. A play based on the book and the subsequent movie led the revivial of the KKK. Segregation replaced slavery as the necessary institution to preserve the "Southern way of life." Consider the fact that once slavery was abolished, no subsequent efforts to either re-institute it or to secede occurred in the South. There was no need because the institution and economic need had been effectively replaced and the KKK was given credit as the forefather to the new economy. No figure at the time was associated more with the KKK than Forrest. And no person was more responsible for this association than General George Gordon. As a former Confederate General practicing law in Pulaski, Tennessee he was a founder of the KKK, and he wrote their precepts, or constitution. The most popular story, now and then, of how Forrest became a member and leader of the KKK involve Gordon visiting Forrest at the Maxwell House Hotel in Nashville and persuading him that he and the KKK shared the same cause.  By 1891 Gordon had moved to Memphis to become our City's school superintendent. Memphis was where Forrest had made his fortune in the slave trade before the war and where he returned after the war to try his hand at other businesses. Gordon was a founder of the Forrest Monument Association and it's chief fundraiser. His efforts were successful enough that the monument also came to be the new resting place of Forrest's and his wife's remains.

Contemporary Accounts Leave No Doubt the Monument Stood for White Supremacy

On April 30 , 1905, about 2 weeks before the dedication, the statue stood covered in white cloth. A local daily newspaper, the Memphis News-Scimitar, ran an illustration along with a creepy, chilling piece of prose as an ode comparing the statue now to the robed Klansmen Forrest once commanded.

Out of the past and back from the mysterious state which men call death, Forrest has come to his own again. Stalwart, strong and invincible, he sits erect on King Phillip, overlooking Forrest Park and turning his eagle eye toward the south just as he was wont to do forty years ago when the chaotic conditions of life required the organizing of the Ku Klux Klan for the protection of the honor and independence of Southern social conditions.
Clad in his old Ku Klux garb, a pall of white that covered horse and rider the great leader of this secret clan rides once more by night, in moonlight or starlight, calling his own to follow him again. It may be only a mirage of a war-loving brain that peoples the park again with special men in ghostly garb, but when the midnight hour rings clear across the stillness of the sleeping city the greensward becomes an arena where rank by rank, file by file, the old members of the clan come to follow their leader again crossing and recrossing from the shadow of the trees to the wider open spaces of light, quiet, irresistible, determined as of old. From the widely scattered graves they come, the green doors of the turf swinging noiselessly back, and horse and rider coming down the long lanes of the past to answer the call of that leader whose iron hand held the reins of safety over the South when Northern dominion apotheosized the negro and set misrule and devastation to humiliate a proud race.  From far and near they come, for who of his old men would not come if Forrest would but call?
One by one they come from the long green aisles that lead the way to the graves of the Confederate dead in Elmwood, and shod in silence they weave their way across the streets of the sleeping city to the open place in the park , where their leader waits. From Lonely graves down in the valey they come again, the long white garb fluttering in the night wind – did you think it only a cloud you saw?
Old men rise from their sleep in comfortable homes, from soldiers’ refuges and from hospital beds, and in their dreams ride out to meet him again. To watch the park would disappoint you, for the mortal eye may see the soldier-spirit that comes again to its own? You would see only mist-wreaths blowing hither and yon, from shadow to shadow where a file of ghostly men of the Ku Klux Klan performed again their intricate evolutions; you would hear only a sigh of the wind where the stern warriors repeated in concert the great binding oath of the order: you would hear only the scamper of tiny animal feet or the sleepy call of a night-bird where the men called together of deeds to be done or wrongs to be avenged; you would hear only the faint rumble of thunder where the great company of horses trampled with pad-softened hoofs across the time hardened turf and granolith walk.  A phantasy of the brain, you will say, for only to those who know will the spectral throng and its meaning be known. Only to those can the mysteries of the night be interpreted, for by day one sees only a stalwart figure in bronze and stone draped stil in its sculptor’s canvas waiting for the cord to be drawn that will reveal a fitting memorial to a man who served his country with honor and distinction and with his sword carved his name on the wall of the temple of fame in those days long ago “when knighthood was in flower.” A.B.

At the dedication ceremony, Gen. Gordon was the featured speaker who recounted Forrest exploits, but leaving out any direct reference to either Forrest's slave trading or the KKK. Not so restrained was another featured speaker, Tennessee Senator A.B. Turley. His speech included this strident statement: "the principles of the cause for which Forrest fought are not dead, and they will live as long as there is a drop of Anglo-Saxon blood on the face of the earth." The Forrest monument shows they wholly believed white supremacy was the path started by Forrest and the KKK and their dedication with this monument showed that Memphis and the South were determined to stay on that path.

What to do with this Monument Now

In 2015, the Memphis City Council voted 11 to 1 to remove the statue and move Mr. and Mrs. Forrest's remains back to Elmwood Cemetery where they were first buried.  The City of Richmond which built similar monuments in the same time period to Confederate Army Commander Gen. Robert E. Lee, President Jefferson Davis and others is presently going through the same debate. Here, however, Forrest's statue is unlikely to ever be moved and I'm not convinced that would even be the best thing to do. In order to move a grave, the heirs must agree, and indications are that Forrest's descendant's will not consent. More importantly, the historical meaning of Forrest's monument has been clouded, white-washed you might say, by present day admirers who idolize Forrest and have mythologized his story. They want to erase his slave trading business, his atrocities during the war, his leadership of the KKK and his support of Jim Crow laws. To remove the statue is to leave out one of the most influential aspects of our City's history. Knowing this history, you can't deny it's impact on the City today. The monument should not be moved, but added to so that the Memphis of 1905 can be seen for future generations for what it proudly and defiantly was meant to be. I would have the general view of the monument from below be blocked and made level with Forrest as the photo above. Take away the "monumental" effect and give an accurate view of history, literally and figuratively.

Memphis Commercial Appeal August 12, 2015. A volunteer tries to remove graffiti 

References:

Tim Bounds: Remembering Nathan Bedford Forrest: White Supremacy and the Memphis Monument. This paper provided much of the original research which made me want to write this article. It is under a Creative Commons license. I cannot find it anywhere else available on the web, so I posted it on my server. http://www.wherelaw.com/Remembering_Forrest.pdf

Government: You're Doing it Wrong.

“Government is broken.” This may be the most commonly used phrase in the news about the Debt Ceiling Crisis, especially among the politicians involved in the battle over it. It may be one of the most used phrases for the past couple of decades. A Google search for the exact phrase returns 159,000 hits. That seems an awfully round number for a truly accurate count, but you get the idea. A poll taken in February 2010 shows that 86% of all Americans agree with this interpretation. Sorry to disagree with America, but "Government" isn't broken; the people we sent to run it just doesn’t know how to operate the thing. The Republic is just fine, if only the people who are supposed to run it would run it that way. While the Debt Ceiling Crisis is just the one small chapter in the big, broke government theme, it's as good of an example of as any why this is bad analysis.In a system structured to require compromise as part of operating the levers of government in the first place, conflict is built into our Republic. Consequently, the fact that extreme factions of either party will hold out to get what they want is not a symptom of a problem, it's not even a problem. It's a feature or it should be in the concept of our Republic. The problems arise from the creation of budgeting tricks that avoid the political fallout of otherwise popular spending. For example, the debt ceiling itself. The debt ceiling is a creation of Congress that creates an artificial limit on how much the government may borrow to pay for the expenditures Congress has already authorized. In other words, a vote on the debt ceiling today essential gives the current Congress the presumed authority to retract spending obligations that were both authorized and funded previously. Is the debt ceiling even constitutional? Most likely, yes. But the issue has never been pressed to a crisis. If the debt ceiling were not raised when the federal government was about to run out of money to pay it's debt, the federal government would be unable to comply with all of the laws, the expenditures versus the cap on borrowing and thus the crisis of what law to disregard and what creditor of the U.S. to stiff. The debt ceiling isn't even a hundred years old and it certainly wasn't part of the structure of the Republic as designed and not a part of the 14th Amendment that obligated the Country pay it's debt. Back then the only borrowing was done in war time.The part that Congress has been doing wrong, particularly since the 1980s, is changing taxes or revenue decreases with no regard for the increased debt those changes create. The massive tax cuts of the 80s were supposed to "pay for themselves" in increased revenue from the magic idea that lower taxes increased economic growth resulting in more revenue. Although the formula never proved true, the myth has been perpetuated. In fact it was massively perpetuated by tax cuts in 2001 and 2003. These were again passed with no regard for the debt everyone knew they would create. In spite of the fact that both the Reagan Tax Cuts and Bush Tax Cuts increased the deficit, the Bush Tax cuts were extended in 2010 by a deal worked out between Obama and Republican Senators who threatened to filibuster every single piece of legislation. Dealing with the debt was to be addressed the next year, or as Obama would later call it, "kicking the can down the road."Passing a law that says the next Congress and the next President cannot spend a certain amount or cannot tax a certain amount is not governing. It's just political cover for not dealing with the problems of right now and the debts built up in the past. Creating a crisis over the debt ceiling for debts already created by complaining about spending yet to take place, is saying you can somehow nullify the expenditures of the past. When you open up the door to that type of revisionist history and hamstringing the future budgets, you're not governing anymore, you're just trying to create a kind of autopilot for government. Add to that a majority of the House, almost all Republicans, have signed a private pledge not to raise taxes in any way.It's no wonder that when the government needed to address serious financial concerns, such as the mortgage crisis, they were helpless from a political standpoint. Spending on entitlements was locked in, government borrowing was locked in and tax rates were locked in. That's why we paid the bankers, the ones who caused the mess, all of the money to fix the problem. It was the only political option we had.The other problem is that it inevitably leads to deception of the public at large. The current "Debt Ceiling Crisis" is not a crisis at all except for the fact that it gave one faction of one party the ability to turn off the autopilot and crash the whole government if changes to spending were not made, changes to spending which had absolutely nothing to do with the debt ceiling at all. That is why they are doing it all wrong. We have built a system that allows the levers of government to be moved to crash the whole thing with no compromise, no checks and balances and no representation by anything like a majority of the electorate. The debt ceiling is a phony idea, passed by a Congress no longer in power to limits the amount of money the government can borrow to pay for things that have already been authorized by a Congress no longer in power and which are now (or were) held hostage by Members of Congress many of whom held no power back then. It is easy to pass tax cuts and it's easy to pass a "ceiling" on the amount of money the government can borrow, but neither of those things provides governance when the debts come due. Neither of those things provides governance when a minority of the House, or the Senate before them, or the House in 1994 were willing to bring the whole government to a halt, or worse. In those cases the Republic as it was designed requires agreement to govern, and agreement requires compromise of all of the parts. When take all the power, put it in a can and kick the can down the road you have no idea who you're kicking it to. You're doing it wrong.