Remarks of Chief Justice William H. Rehnquist.

• Position: Dual Enforcement of Constitutional Norms - Transcript

Thank you Chief Justice Hassell. I am pleased to be here today to participate in this conference on "Dual Enforcement of Constitutional Norms."

When I saw the schedule for today's conference, and the topics to be discussed, I knew you were not lacking for in-depth, scholarly material. I thought that rather than providing yet another entree for your consideration, I would come up with what might be called either a palate cleanser or perhaps a dessert. I want to reflect today about why it is that state governors have, since the beginning of the Republic, seemed to move easily and regularly from Governor to President of the United States, while the practice of state court judges moving to the Supreme Court of the United States has tapered off during the last one hundred years.

Since 1801, there have been seventeen state governors who have gone on to the White House--nineteen if you count territorial governors. Eleven of those governors served as President during the nineteenth century and eight during the twentieth century. During that same time frame, eight governors have gone on to serve on the Supreme Court of the United States. Chief Justice John Jay and Justice James Byrnes did the opposite--serving as governors after they left the Court.

The first former governor to become President was Thomas Jefferson, who had served as governor of Virginia. Because he is one of our Founding Fathers, we are all familiar with Jefferson. But many of the other governors-turned-Presidents are not so well-known. There is good reason for this. The federal government during most of the nineteenth century followed what one of my political science professors referred to as the "night watchman" theory of the state: the federal government was responsible for the nation's defense, for sustaining itself financially through the collection of tariffs at ports of entry, and delivering the mail. Beyond that, it was felt by most that it should leave people alone. This theory still strikes a chord with many individuals today, but federal and state governments have long abandoned it.

One well-known historian has described all of the Presidents but one who served between the end of Andrew Jackson's term in 1837 and the beginning of Abraham Lincoln's term in 1861, as "mediocrities who would not today be trusted with the management of a medium-sized bank." Perhaps the least remembered of these is William Henry Harrison, who served as Territorial Governor of Indiana before becoming President. He served only one month as the pneumonia which he caught at his outdoor inauguration in March, 1841, proved fatal a month later. But it seems rather clear that even if he had served his entire four-year term, he would be little better remembered than he is. He was elected in the famous "log cabin and hard cider" campaign of 1840, where the slogan of his Whig managers was "Tippecanoe and Tyler Too." Harrison had defeated a consortium of hostile Indian tribes at the battle of Tippecanoe in 1813. Twenty-eight years later, he became President through the shrewd planning of his managers, who did not have great confidence in his forensic ability. Today, one of the axioms of presidential politics is that the candidate must get his message out saying who he is and what he stands for. But Harrison's managers followed no such course. One of them, Nicholas Biddle, instructing the others, said that he should "take no position on any issue at all--he should be totally forbidden the use of pen and ink." Harrison, however, even without a message, was elected.

The one exception which the historian made for the Presidents between Jackson and Lincoln was James Knox Polk, who had been Governor of Tennessee before he became President. In his term from 1845 until 1849, he accomplished a great deal in fostering the westward expansion of the United States. Under his leadership, the country settled the northwestern boundary between what is now Washington and British Columbia, and fought the Mexican War as a result of which the United States gained a huge amount of territory in the southwest--all or part of the present-day states of California, Nevada, Utah, Colorado, New Mexico, and Arizona.

The next former governor to become President was also a Tennessee governor, Andrew Johnson. Johnson, of course, became President when President Lincoln was assassinated in 1865. He served until 1869. President Johnson was impeached by the House of Representatives in 1868 for, among other things, violating the Tenure of Office Act of 1867. That Act had been passed by Congress as a result of its conflicts with President Andrew Johnson during Reconstruction after the Civil War. It provided in essence that all federal officials whose appointment required Senate confirmation could not be removed by the President without the consent of the Senate.

The Tenure of Office Act thus created a dramatic change in relations between the President and the Senate concerning the...