Rehnquist’s take on 1876 election a missed opportunity

‘Centennial Crisis’

The Disputed Election of 1876

William H. Rehnquist

Alfred A. Knopf: 276 pp., $26

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There was some murmuring in political circles when it became known that William H. Rehnquist, chief justice of the U.S. Supreme Court, was writing a book about the first time the court helped decide a disputed presidential election.

Might Rehnquist use the 1876 contest between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden to shed some light on the court’s second appearance in its unaccustomed role of presidential arbiter in the 2000 contest between Republican George W. Bush and Democrat Al Gore? The answer: very little.

Rehnquist has produced an earnest book that is mostly pedestrian, with intermittent bits of animation. Insofar as “Centennial Crisis: The Disputed Election of 1876” catches readers’ interest, it is chiefly for what it leaves out.

Something might be made of the fact that a justice of the Supreme Court, much less the chief justice, should produce a work of history at all. But this is his fourth and other justices have preceded him in authorship. It is no demerit that Rehnquist’s prose does not sparkle; it is enough for a justice to write clearly, as he does. Few justices have achieved the mastery of American English as, say, John M. Harlan, Oliver Wendell Holmes Jr., Benjamin N. Cardozo or William J. Brennan.

Most striking about “Centennial Crisis” is that it displays an intensely interesting period of U.S. history with the life squeezed from it.

The 11 years since the end of the Civil War had seen the victorious Union roar ahead in prosperity and a new vigor that would define to this day the united, nationalist, innovative United States, while the whipped South remained crippled, hobbled by its own defeat and the failure of the nation as a whole to finish the work of the war by tearing up the remnants of slavery by its roots.

By 1876 Southern resistance to Reconstruction, spearheaded by the Ku Klux Klan, had largely nullified those efforts; federal troops remained to enforce black rights only in Louisiana and South Carolina, the last Republican strongholds in the South. The rebellious Southern states had been largely readmitted to the Union and most Americans wanted to look -- and get -- ahead, not move backward. Against this backdrop, the nation was voting for the president who would succeed Ulysses S. Grant.

Tilden won by 250,000 in the popular vote and took 203 electoral votes when 185 were needed for victory. But the Republicans in Florida, Louisiana and South Carolina, where they were still in control, disqualified enough Democratic votes in those states to give the election to Hayes.

This was not simply a steal; there was plenty of evidence that Democrats intimidated black voters.

Partisan deadlock made it impossible for Congress to resolve the election as the Constitution provides. So in 1877 Congress created a commission of five senators, five representatives and five Supreme Court justices to choose the next president. Seven were Republicans and seven were Democrats. One justice, David Davis of Illinois, a former Republican who was no longer a member of either party, was to be the independent. But Davis withdrew, having just been elected to the Senate.

The four justices on the commission thereupon chose to replace him with Joseph P. Bradley, an Ohio Republican. On every disputed issue, Bradley voted with the seven Republicans in favor of Hayes, who ultimately was chosen president.

Some Democrats complained loudly about improper interference. Hayes was called “Rutherfraud.” But the country was in a rush to rebuild itself and even northern Democrats acquiesced. The last of Reconstruction was set aside and the South began erecting the Jim Crow laws that would oppress Southern blacks until the civil rights revolution of the 1950s and 1960s.

Until the middle of the 20th century historians overwhelmingly accepted the outcome as a good and necessary thing. But in the last 50 years historians have conducted voluminous reexaminations that highlight the great missed opportunity to conclude the work of the Civil War.

To all this Rehnquist seems oblivious. He concludes that the requirement of “stability” for the nation gave the stamp of approval to the 1877 decision. He uses the same word, “stability,” to characterize the court’s 5-4 decision giving the 2000 election to Bush.

In 1935 the circumstances of Bradley’s vote were reopened by historian Allan Nevins. Rehnquist discounts Nevins’ work, which raised the possibility that a corrupt bargain had been struck, and as to charges against Justice Bradley, Rehnquist deems them “not proven.” Though others have taken Nevins’ suggestion a bit more seriously, the truth seems to be lost forever.

But now, in another turn of historical irony, President Hayes, long derided as ineffectual, has regained new standing as a pretty good president who really hoped to secure political equality for African Americans. That he could not may be seen today as more the fault of his country than his own.