The most important question about the 1896 election, at least for the purposes of this book, is, Why did the Populists lose? [99]
A common misconception about Bryan is that he was an unknown who won the presidential nomination with one fantastic speech. In fact, he spent most of 1895 and 1896 speaking around the country to Democratic activists and kept in touch with the fusionists. [101]
The triumphal moment, of course, was Bryan's "Cross of Gold" speech on behalf of a silver platform, which provided a memorable statement of the agrarian creed. Aided by a baritone voice that could reach an entire arena in an era before microphones, Bryan defended the role of farmers in society: "The great cities rest upon our broad and fertile prairies. Burn down your cities and leave our farms, and your cities will spring up again as if by magic; but destroy our farms, and the grass will grow in the streets of every city in the country." He also lashed out at the "few financial magnates who, in a back room, corner the money of the world" and expressed the anger that activists felt about the resistance they had faced over the past few years from the president and from the Court: "We have petitioned, and our petitions have been scorned. We have entreated, and our entreaties have [102] been disregarded. We have begged, and they have mocked when our calamity came. We beg no longer. We entreat no more. We petition no more. We defy them!" He ended with this famous rallying cry: "Having behind us the producing masses of this nation and the world, supported by the commercial interests, the laboring interests, and the toilers everywhere, we will answer their demand for a gold standard by saying to them: You shall not press down upon the brow of labor this crown of thorns, you shall not crucify mankind upon a cross of gold!" Though this speech did not guarantee Bryan's nomination (he did not win until the fifth ballot), it clearly played a big role in his selection. [103]
...fusion was achieved, but at a high cost. First, President Cleveland and what was left of his party machine actively [104] opposed the national ticket, which was not helpful for Bryan. Second, the existence of two vice presidential candidates reinforced the sectional split within the Populist coalition. Indeed, Watson used many of his campaign speeches to attack Sewell rather than to praise Bryan. This was emblematic of the alienation of the middle-of-the-road faction and its unenthusiastic support for the ticket. Third, Bryan's emphasis on the silver issue, the subject of the Cross of Gold speech, proved to be a mistake because it had no appeal beyond his rural base. In November, McKinley would win every significant city except for New Orleans. Such a dreadful result was not surprising, since Populists generally thought that cities were part of the problem, not part of the solution, and they did little to reach out to unions or to the urban bosses that were critical in turning out the Democratic vote. All of these structural flaws contributed to Bryan's defeat. [105]
Today we are accustomed to direct campaigns, but it was then considered undignified for presidential candidates to ask for votes, which is why there are no general election speeches from Washington, Jefferson, Jackson, or Lincoln. Bryan's decision to break with that long-standing practice was in keeping with the turbulent times, and his approach soon became the standard and enhanced the power of the president within the constitutional design--yet another example of how the necessities of political competition created new [105] doctrines and traditions in the 1890s. The tactic also reinforced the popular character of Bryan's movement and created a vivid contrast with the Republican Party. [106]
Conservatives were stunned by Brvan's nomination. Their resistance had brought reformers into control of a major party rather than burying them. The New York Times ran blazing headlines-- "Bryan the Demagogue" and "Logical Candidate of the Party of Fantastic Ideas"--and contended that Bryan "must at any cost and by whatever means are most effective be beaten." (see footnote 33) [106]
Much like Bryan, McKinley has an undeservedly poor reputation. Although he is often portrayed as nothing more than a tool of Mark Hanna, his wealthy campaign manager, McKinley was an adept politician who excelled at backroom deals and at reading public opinion. Consider his famous "front-porch" campaign strategy in 1896. McKinley knew that he could not match Bryan on the stump and that the traditional view that candidates should not speak for themselves was appealing to many voters. At the same time, he could not just let Bryan monopolize the public stage. His solution to this dilemma was clever. Instead of going to the people, he brought the people to him. Hundreds of thousands of supporters made a pilgrimage to McKinley's home in Ohio, where he greeted them with a speech from his porch. [107]
Whereas McKinley was simply responding to Bryan's pioneering campaign organization. Mark Hanna, who thought that the "Chicago convention from beginning to end was in the hands of a clique of radicals and revolutionists," used the fear of a Democratic win to put together the first massive [107] fund-raising machine. (see footnote 41) He drew up a schedule of recommended "assessments" for every major corporation and put that money to work, employing a blizzard of paid volunteers, handing out leaflets, and planting essays in the press to support McKinley. Bryan was unable to match this flood of money and wast outspent by about ten to one during the campaign. Once again, the process of mutual transformation was forcing each side in this generational fight to launch ever more powerful responses--legal or political--to match what the other was doing.
Rather than give a blow-by-blow account of the presidential campaign, I want to focus on the leading constitutional question between Bryan and McKinley: the plank of the Democratic/Populist platform that criticized Pollock and, because it expressly mentioned "the court as it may hereafter be constituted," was read as a pledge to pack the Supreme Court with radicals. There [108] are two famous examples of Court-packing in U.S. history. One was Franklin D. Roosevelt's unsuccessful effort to increase the membership of the Court in 1937. The other was Andrew Jackson's success in expanding the number of Justices in 1837. Most lawyers know about the first case; the second is not so well known but did serve as a precedent for anyone who wanted to take the Court-packing route in the 1890s.
Conservatives saw the Pollock plank as a "smoking gun" indicating that Bryan was bent on destroying the Constitution. Gold Democrats argued, for instance, that Bryan "assails the independence of the judiciary by a covert threat to reorganize the courts whenever their decisions contravene the decree of the party caucus." In their view, the Supreme Court's "independence and authority to interpret the law of the land without fear or favor must be maintained. We condemn all efforts to degrade that tribunal or impair the confidence and respect which it has deservedly held." The Gold Democratic vice presidential nominee added that Bryan "would wipe virtually out of existence that Supreme Court which interprets the law, forgetting that our ancestors in England fought for hundreds of years to obtain a tribunal of justice which was free from executive control."
Pamphleteers and journalists who backed McKinley made similar criticisms. One campaign book attacked the Democrats as "zealots" who "propose among their early doings to reorganize the Supreme Court of the United States." Another said that it "is not the fact that the Chicago platform criticized the judiciary that [109] has brought down our condemnation, but it is the unwisdom and the un-Americanism of their implied threat to reconstruct the Supreme Court for partisan purposes." Harper'sy Weekly wrote that "Mr. Bryan's government would destroy that safeguard by packing the Supreme Court with judges who would agree with the Constitutional views of the legislative branch if that branch happened to be in the hands of the Populists." Not to be outdone, the New York Times told its readers that Bryan wanted "a packed Supreme Court." (see footnote 50) And another conservative lawyer wrote: "There are two places in this country where all men are absolutely equal: One is the ballot-box and the other is the Supreme Court. Bryan proposes to abolish the Supreme Court and make it the creature of the party caucus whenever a new Congress comes in."
Republicans also pounced on this issue, but their argument offered a more sophisticated synthesis of constitutional law. In the party campaign manual, the Republicans held that from "the days of Marbury v. Madison to those of the income-tax cases, there have been many criticisms of the opinions of the Supreme Court, but the platform at Chicago is the first party assault upon the constitutional tenure of the Justices." This statement is fascinating because it demonstrates that the rediscovery of Marbury now reached well beyond the Court. What began as clever rhetoric by Joseph H. Choate to talk the Justices into rejecting their own precedent on direct taxes was now becoming part of mainstream political discourse. The Populists responded by attacking Chief Justice Marshall, with one writing in the [110] American Law Review that Marbury was a "usurpation by the Federal courts of the legislative power" and could not justify Pollock.
The view that Bryan was going to pack the Court was depicted by a cartoon on the cover of Harper's Weekly dated September 12, 1896, entitled "A Forecast of the Consequence of a Popocratic Victory to the Supreme Court of the United States." In it, the Court sits under the Jolly Roger and a "fifty-cent bunco dollar" made of silver. The Constitution lies trampled on the ground, and the four busts above the bench depict Charles Guiteau, the assassin of President James Garfield, and three of the anarchists convicted in the bloody Haymarket Riot of 1886. The Justices include Governor Altgeld as Chief Justice (in the center); "Pitchfork" Ben Tillman, the free-silver governor of South Carolina; Eugene Debs (wearing the "King Debs" crown); and Jacob Coxey (wearing the "King Debs" crown); and Jacob Coxey (wearing a helmet of Coxey's Army). The message was clear: Bryan's Court would validate a scary agenda that should be rejected at the polls. [111]
What stands out about the 1896 debate about Court-packing is the willingness of both sides to engage the electorate in [113] defining the constitutional stakes. The cycle of escalation begun by President Cleveland's decision to oppose the Populists in 1893 had culminated just three years later in a sharp ideological polarization that forced the American people to consider first principles anew, up to and including the role of the Supreme Court. The voters now gave their answer. [114]
Even though definite proof was lacking at the time, the evidence would grow that "the switching voters were not coerced into voting for McKinley; they were converted." In other [114] words, the traumatic events that preceded the 1896 election branded a political identity on a new generational cohort that would dominate the constitutional cycle until the Great Depression. That group of voters continued to refer back to the dark days of the 1890s in future elections and to vote in a similar way, much as the Democrats and Whigs did following the 1830s and the Republicans and Democrats did following the 1860s. This gut-level association and the partisan loyalties created by it was reinforced by the Democrats' decision to nominate Bryan for president again in 1900 and 1908, which let Republicans, much to their delight, run the 1896 campaign over and over. [114]
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