SENATE-Wednesday, July 8, 1981

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14868 CONGRESSIONAL RECORD - SENATE July 8, 1981
SENATE-Wednesday, July 8, 1981
The Senate met at 12 noon, and was Court Justice William Rehnquist was "A Brainy Perfectionist Who 'Loves to
called to order by the President pro tem first. Work,'" with two separate articles on
pore (Mr. THURMOND). Judge O'Connor married John Jay that.
O'Connor 3d, one of her law school class There being no objection, the articles
PRAYER mates. Mr. O'Connor practices law at one were ordered to be printed in the RECORD,
The Chaplain, the Reverend Richard of Arizona's top law firms. They have as follows:
C. Halverson, LL.D., D.D., offered the three sons. WOMAN JUSTICE SPARKS DEBATE! O'CONNOR
following prayer: After her graduation, Judge O'Connor ls ATTACKED OVER ERA, ABORTION
spent 6 years in private practice in Ari (By Roberta Hornig and Allan Dodds Frank)
Let us pray. zona before becoming that State's assist
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O'Connor to fill a Supreme Cour·t vacancy
not have been perfunctory and easily for zona Senate and subsequently won elec was given a cool rec6ption by some conserva
gotten. We were reminded of our roots: tion for two full terms, culminating in tives in the Senate, but Barry Goldwater
"We hold these truths to be self-evident, her election as majority leader of that ·who claims to be the chamber's most con
that all men are created equal, ithat they body. In 1974, Judge O'Connor ran for servative member-vowed to battle any op
are endowed by their Creator with cer Superior Court Judge in Maricopa Coun position to the nomination.
tain inalienable rights ..." Teach us to ty and was appointed to Arizona's sec Liberals and moderates generally praised
take seriously our spiritual roots, for ond-highest court, the court of appeals. the selection of the judge from Goldwater's
without a Creator-God there are no in I applaud the characteristically forth home state of Arizona yesterday.
alienable rights, and to refuse Thee is right statements of the distinguished Goldwater, in an interview, excoriated the
to forfeit our rights. Forgive us, O God, Senator from Arizona <Mr. GOLDWATER) right-to-life movement and Equal Rights
for wanting the benefits while we reject for his support of Judge O'Connor and Amendment opponents as "non-conserva
tives" who have been obstructing •the work
the Benefactor. his astute refutations of unkindly com of Congress. He said they should have no
We were reminded that to preserve ments about her nomination. say in the consideration of O'Connor's
these rights governments are instituted Pending the checks by the Federal Bu nomination.
with the consent of the governed. May we reau of Investigation, I hope that the The Arizona senator reserved his sharpest
never forget that the Government of this Senate will be able to act swiftly on her words for Moral Majority leader Jerry Fal
Nation is "of the people, by the people confirmation, and pave the way for what well, who yesterday condemned Reagan's
and for the people" and that our Govern I believe will be a most successful Su choice of O'Connor. "I thlnlt that every good
ment exists to perpetuate their rights. preme Court career beginning in October. Christian ought to kick Falwell right in the
ass," Gol.dwa-ter said.
Give to the Senators and all associated Mr. STEVENS. Mr. President, I wish to At an earlier press conference, Goldwater
with them in legislation a fresh commit add my voice in support of the Presi said, "If it's going to talte a fight, they're
ment to the vision and the passion of dent's action in nominating the first going to find old Goldy fighting like hell ....
those who founded this Nation and to woman to ever be nominated to serve on I don't like to get kicked around by people
the God who made it possible. our Supreme Court. who call themselves conservatives on a non
In Jesus' name. Amen. There is no question that Mrs. Sandra conservative matter."
Predicting no problems in the Senate
O'Connor is well qualified. Her service in
confirmation of O'Connor, Goldwater said,
the Arizona State Senate and her service "Abortion is not a conservative issue. ERA
RECOGNITION OF THE MAJORITY as a member of the court of appeals of is not a conservative issue."
LEADER the Arizona court system has been very Goldwater also accused single-issue groups
distinguished. Above all I commend the of wasting the time of Congress.
The PRESIDENT pro tempore. Under President for keeping a campaign com "This abortion issue has gotten to be the
the previous order, the majority leader mitment. biggest humbug issue in the United States.
is recognized. We have had over 40 votes on this matter
Many people look on campaign com
without ever having a b111 heard before a
mitments made during the course of a committee in this Congress .... The country
NOMINATION OF JUDGE SANDRA Presidential campaign as rhetoric, de ls going to pot economically, m111tarlly and
signed to enlist support from this group every other way and we spend all our time
DAY O'CONNOR TO BE A JUSTICE
or that group. I am most pleased that talking about busing and abortions."
OF THE SUPREME COURT
this President has seen fit to take this Calling O'Connor "the most conservative
Mr. BAKER. Mr. President, I would opportunity to carry out one of the com Republican I know," Goldwater said, "I
like to congratulate Judge Sandra Day don't buy this idea that a justice of the
O'Connor on her historic nomination to mitments he made during the campaign. Supreme Court has to stand for this, that
the Supreme Court of the United States. Not all the commitments he made can or the other thing."
I commend the President for the courage he carry out alone. Jn contrast, another leading Senate con
of his decision to name a woman, and But this one, to nominate the first servative Sen. Jesse Helms, said that he is
I pledge my full support for her confir woman to the Supreme Court. was a de "slrnptical" of the nomination, adding that
maJtuidogne b yO 'tCheo nSneonra'st ec.a reer has been dis cainsdio In thhein cko huled s mhnolu~led baen dc ohmem heansd meda dfoer, hsii:sH< oevltimheewsr,p so.R"i -nNt .Cls. , shwaarse da sbkye d.. attr lhe.ae. stb enlv1ee voedr
tinguished by intellectual excellence and setting this example of being a President he and other conservatives could block the
professional resolve. Her stewardship on who is willing to keep campaign commit nomination. Fe acknowledged that he didn't
the bench of the Arizona Court of Ap ments. The fulfillment of this promise know but added that he thinks some votes
peals has been acclaimed as "meticulous will benefit the entire Nation. would be garnered "if the senators think
and deliberaite, hard-working and nota Mr. President, I ask unanimous con the president has been misled."
bly bright." sent that the articles appearing today in And, he said, "I could see a filibuster" on
She was born on March 26, 1930, and the Washington Star concerning the the nomination.
Helms s.aid he made his skepticism known
grew up on a ranch in Arizona. In 19:)0, nominee for the Supreme Court, Sandra
to Reagan when the two talked yesterday
she graduated from Stanford University D. O'Connor, be printed in the RECORD.
morning-at the president's inltiative
with a bachelor of arts degree, and re Those are the articles that commence on shortly before the nomination was made
ceived her law degree from the Stanford page 1, and one is entitled "Woman Jus public.
law school 2 years later. She graduated tice Sparks Debate," and two separate "He put on a selllng job,'' Helms said,
third in her law school class. 'Supreme articles on that, and the other is entitled adding that Reagan had stressed O'Connor's
• This "bullet" symbol identifies statements or insertion:; which are not spoken by the Member on the floor.
July 8, 1981 CONGRESSIONAL RECORD - SENATE 14869
position favoring c.apital punishment and Another key Senate Republican, who asked The president, however, said he was "com
law-and-order policies. not to be identified, predicted that O'Con pletely satisfied on her right-to-li!e posi
But Helms reported that he countered nor's confirmation hearings "won't be a tion."
that "people I'm hearing from are people cakewalk" because of conservatives' oppo Later, Deputy White House Press Secre
who have been down in the trenches for you sition. tary Larry Speakes said that O'Connor had
since day one," referring to long-time Rea O'Connor, also drew praise from the other told the president that "she is personally
senator from Arizona, Damocrat Dennis opposed to abortion and that it was especial
gan supporters.
DeConcini, who said he has known and re ly abhorrent to her. She also feels that the
"I raised the question about her voting
spected O'Connor since 1965. He called her subject of the regulation of abortion ts a.
record with regard to abortion, ERA (the
"tough, competent and conservative, but not legitimate subject !or the legislative area."
Equal Rights Amendment) and so forth,"
in a reactionary sense." Reagan acted quickly to fill the vacancy
Helms said. He added that Reagan had tried "She is respected,'' he said. created less than three weeks ago by the
to convince him that those O'Connor votes public announcement of Stewart's retire
in the Arizona Legislature were merely WOMAN JUSTICE SPARKS DEBATE: O'CONNOR Is ment. Some antiabortion leaders were claim
procedural. ATTACKED OVER ERA, ABORTION ing yesterday that the president acted hasti
Helms also raised the specter of the presi 1(By Lyle Denniston) ly to head off their opposition.
dent having been "misled" about O'Connor's PRESIDENT'S CHOICE SETS A PRECEDENT The search !or Stewart's replacement had
background "either by his own people or the been continuing privately since April, short
lady herself." President Reagan has broken two centurioo ly after he told Vice President Bush and
The North Carolina senator said Arizona of national habit in choosing a woman Attorney General Wllliam French Smith o!
Pro-Life groups were dispatching informa Sandra D. O'Connor of Arizona-for the his plan to retire.
Supreme Court.
tion to him purporting to show th.at O'Con On Monday evening, the president per
In announcing yesterday that he had
nor indeed had voted several times against sonally telephoned O'Connor at her home
picl,ed O'Connor, 51, a judge on the Arizona
abortion. in Phoenix and offered her the nomination.
Court of Appeals, the president also stirred
ju"dig'me thnoe t lagdoyin gu nttoi l aswsei stg etht et hlaatd yi nofro rpmrea sutpo rma. soivzearb lhee rb vuite wpse rohna pwso mpaesns'isn rgi gphotsli. tical Sh'elh aec cepprteesdi.d ent personally disclosed his
tion," he said. Those views have not been spelled out fully choice in the White House press room in
But, he added: "I'm skeptical because peo in public, but some of the president's own lale morning, calling O'Connor "truly a 'per
ple who contacted me never misrepresented political followers immediately denounced son for all seasons' " and implying that she
the facts on any other matter." her as too liberal, particularly on abortion. fit his demand for "the most qualified wom
The o·connor nomination also received a Conservative religious groups, anti-abor an 1 could possibly find."
He insisted that she had not been picked
lukewarm response from Senate Judiciary tion leaders and New Right Republicans
merely because she was a female. "That
Committee Chairman Strom Thurmond, vowed to fight her nomination in the Senate.
R-S.0. It appears that Senate liberals and would not be fair to women, nor to future
Thurmond, whose committee will shepherd moderates, along with feminist organizations generations of all Americans whose lives are
so deeply affected by the decisions of the
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the nomination yesterday. starting perhaps later this month. One com of all court appointees."
Instead, a staff member on his committee mittee aide said he doubted that final Senate Attorney General Smith told reporters
reported that "the senator has said he's very action would come before September. that the choice of O'Connor was not "a
pleased the president has made his choice The president called for "swift bipartisan single-issue determination" but rather was
and he will help the president in whatever confirmation,'' but the prompt outbreak of b.lsed on "her overall qualifications and
way he can." controversy made it seem that it could be baclcground."
The staffer insisted that the statement was several weeks before O'Connor's name is put He said her views "fell generally within
not meant to reveal "whether he's for or to a vote on the Senate floor. the president's overall philosophy."
against" the nomination. The court ts in summer recess and is not In Phoenix, O'Connor is.sue:i a brief state
Helms, however, reported that he had met due to return to the bench until Oct. 5. The ment saying she was "extremely happy and
with Thurmond and said "He feels pretty court now has only eight members-Justice honored" and vowing that, if confirmed, "I
much as I do." Potter Stewart retired last Friday-but it will do my best to serve the court and this
Another cautious reaction came from an could operate without O'Connor if there is nation in a manner that will bring credit to
other Republican member of the committee, a delay. the president, to my family and to all peo
Charles Grassley of Iowa. "I'm keeping an If confirmed O'Connor would become the ple of this great nation."
open mind. I would want to know what her 102nd justice to sit on the court and the
basic philosophy is," said Grassley. first woman in its 191-year history. A BRAINY PERFECTIONIST WHO "LOVES TO
Despite the·coolness of those conservatives, On the bench, she would be seated next to WPOOLRITKIC"-SS ELI:CTION PROCESS STEEPED IN
an aide to Howard Baker said the majority another Arizonan, Justice William H. Rehn
leader believes O'Connor will win Senate quist-the court's most conservative (By Lisa Myers)
approval. member. On Monday afternoon, President Reagan
In a. statement, Baker said he personally O'Connor's decisions as a member of had a few lingering questions about Ari
is "delighted with .. . (the president's) Arizona's mid-level appeals court suggest she zona Judge Sandra D. O'Connor, his first
choice and I pledge my full support for her is cautious in the use of judicial power, but choice for the Supreme Court. He tracked
confirmation in the Senate." the rulings do not offer a clear portrayal of down O'Connor's longtime acquaintance
A judici.ary committee moderate, Sen. Alan her views on major social controversies. and avid supporter, Sen. Barry Goldwater,
Simpson, R-Wyo., said "I don't think there who was vacationing in Newport Beach, Calif.
are enough horses to deny this nomination The opposition that arose immediately to Reagan asked the Arizona Republican
in any way." her was centered on claims that she is tn what he knew about O'Connor's position on
O'Connor's appointment received positive, favor of abortion and the proposed Equal abortion and the Equal Rights Amendment.
1! hedged, comments from two of the most Rights Amendment to the Constitution. Goldwater said he didn't know much about
liberal Democrats in the Senate-Edward Those claims were based on her record as her thinlcing on abortion but that she favors
a senator in the Arizona legislature.
Kennedy of Massachusetts and Minority the ERA.
Whip Alan Cranston of California. Peter Gemma, executive director of the "I heard she opposed me in 1976," Oold
"Every American can take pride in the National Pro-Life Political Action Commit wa ter recalls the president saying.
president's commitment to select such a tee, an anti-abortion group, said: "She's not "No,'' Goldwater replied, "she gave me
woman for this critical office. I am heartened even ambivalent on the issue. She is a hard hell for coming out for (President) Ford."
by the president's actions and I look forward core pro-abortion proponent." "Well," Reagan laughed, "that makes her
to ... the hearings," said Kennedy. He warned all 100 senators in a mailgram real good."
Cranston called O'Connor "a substantial that his group will consider "a vote !or A couple of hours later, Reagan called the
leading scholar with training in the legisla O'Connor to be a vote for abortion." 51-year-old O'Connor in Phoenix with the
tive branch" and adlded "It's great that a The Rev. Jerry Falwell, head of the Moral precedent-shatteri11g invitation to become
woman has been finally appointed to the Su Majority, said O'Connor "is opposed to at the first woman on the Supreme Court.
preme Court. That's a major step." tempts to curb the biological holocaust that The 10-minute telephone call culminated
Cranston predicted that Democrats as a has taken the lives of more than 10 million a three-month selection process that was
group would endorse the nomination and innocent babies" since the Supreme Court's shrouded in secrecy and steeped in politics.
that "the only opposition will come from 1973 decision recoglllizing a right to an Reagan's senior advisers, adamant that
Republicans. abortion. their boss not be upstaged, arranged for
14870 CONGRESSIONAL RECORD - SENATE July 8, 1981
candidates to be interviewed in a secret qualified candidate" regardless of sex, senior private reputation as a working rancher and
location. The official FBI background check advisers say he made his "strong preference" an easy-to-meet friend.
wasn't ordered until yesterday, after Rea for a woman clear from the outset. In fact, A rapidly rising and successful politician
gan strode into the White House press room when Reagan first asl{ed Smith and senior who was destined-by the choice of others
to make the historic announcement. White House aides to compile a list, he ad for higher office in state government, she
"He deserved to have this moment," argues monished: "Remember that I've got a com chose herself to move to the judiciary, to a
a senior White House official in defense of mitment to appoint a woman," Deaver re- court with limited powers, and to remain
the extraordinary secrecy. "A lot of Demo calls. ' there-until yesterday.
crats talk about equality for women, but The Justice Department looked at more Her opinions on the Arizona Court of Ap
this president had the guts to put one on the than 50 names in May, but the number had peals, a mid-level court, display a somewhat
Supreme Court." been winnowed to between 20 and 25 when heavy judicial tone, infrequently crisp and
While suddenly eager to talk about "equal Smith met alone with Reagan in early June seldom lyrical. They contain no hint of eager
ity for women," Reagan's senior advisers also to discuss potential candidates. O'Connor ness to expand the law beyond the prece
acknowledge that political factors played was on that list as being on a separate dents.
an important role in the selection process. White House list of equal size compiled by They deal with the grist of state law is
The highly symbolic selection of a woman coun.o-el Fred Fielding and submitted to Jus sues: crime from serious to petty, injured
for the first Supreme Court vacancy, some tice on June 18. worker&' claims, divorce, medical malprac
admit, was hardly an act of political cour Not lon3 after Stewart's public announce tice, rent disputes, auto accidents, credit
age. ment, Smith and his aides began interview controversies.
"Political brilliance would be a more ac ing a number of candidates at a still ~ndis­ On crime, she ordinarily votes to uphold
curate characterization," quips one Reagan clo.sed location that was chosen to avoid convictions, but her reJections of convicts'
ite. "O'Connor is as close to perfect as any being spotted by reporters. Senior White appeals contain no law-and-order rhetoric,
one would have dreamed. She is well-quali House advisers Edwin Meese IlI, James A. The results seldom move ahead of what the
fied, a life-long Republican and basically Baker III, Deaver, Smith and Fielding inter Supreme Court has said.
conservative." viewed O'Connor at the secret location on She has had no occasion as a judge to dee.I
Reagan's political advisers expect the ap June 30. The following day, O'Connor was with the big controversy that already sur
pointment to give Reagan considera;ble mile interviewed by Reagan at the White House. rounds her nomination: abortion. She has
age among politically moderate men as w.ell Senior White House &dvisers disagree as a record on that in the Arizona state senate,
as women who might be troubled by the to whether there was ever a "short list." But not in court. She has also taken no judicial
president's opposition to the ERA and by one well-placed source said that by the be position on such heated issues as school de
the dearth of women in senior administra ginning of last week, the serious contenders segregation or prayers in public schools.
tion positions. had been narrowed to O'Connor; J. Clifford On women's rights in general, she has had
The appointment also would tend to muf Wallace, a California U.S. Court of Appeals only limited judicial opportunity to express
fle charges of the more ardent feminist judge; and Cornelia Kennedy, a member nerself. She did write an opinion last year
groups and many Democrats that Reagan of the U.S. Court of Appeals for the sixth that cut both ways on an issue that is bash:
is against equality for women. "How can circuit of Michigan. to feminists and traditionalists alike; a di
they make that stick when he was the first But only O'Connor was interviewed by vorced wife's right to share equally the
one to appoint a woman to the court," chuck Reagan and his closest White House advisers. property that belonged to the couple while
les a senior White House official. "It cer And, according to Deaver, it was O'Connor's married.
tainly weakens the Democrats." impressive performance during the one-hour The ruling declared that if a workmen's
Some officials also believe that appointing White House session that cinched her nomi compensation award is paid during marriage,
nation.
a jurist whom senior adviser Michael K. it should be split at the time of divorce.
Deaver went out of his way to describe as O'Connor underwent extensive checks, in If it is paid after divorce, it belongs only to
"moderate" increases the likelihood that the part because Reagan had been burned by a the spouse who was hurt.
president will get additional Supreme Court California judicial ai)pointment Donald R. O'Connor possesses an unusually quick
vacancies to fill. Wright, who then-Gov. Reagan appointed mind and sometimes vents her wit from the
"The current members of the court were as chief of the California Supreme Court, bench, where she is said by observers to
watching very closely, particularly those five turned out to vote with co11rt liberals on a grasp arguments more quickly than the law
who are over 70 and might be thinking of num'ber of key issues, to Reagan's irritation yers are able to make them.
retirement," says an official. "O'Connor is and dismay. University of Michigan law professor
likely to set very well with them. We know On the basis of their scrutiny of O'Con Sallyanne Payton said O'COnnor "has that
she is quite acceptable to (Chief Justice nor's record, White House officials maintain knack that you frequently find in very, very
Warren) Burger and (Justice William) that opposition to her nomtnation by anti good proifessional politicians whom you trust,
Rehnquist." abortionists is ill-founded. which is showing a serious intensity and
The White House did not seem particu After letters and telegrams against O'Con sincerity of interest in conversations, par
larly distressed over the fierce opposition of nor began pouring in on Friday, the White ticularly in private conversations. There is a
anti-abortion grouns and the wrath of Sen. House che:::1'.ed out the specific allegations quality of insight and of acumen that some
Jesse Helms, R-N.C., who stormed down to against her. On Monday, O'Connor was inter times manifests itself in wit." John Kolbe,
see Reagan yesterday in a fury over the viewed again by telephone by a Justice De the political editor of The Phoenix Gazette
appointment. . partment official and by senior members of who has watched O'Connor for yea.rs, says,
"I don't see any lasting breach," says one Reagan's staff. "her image is that of a moderate. She is
political adviser, who believes that right Fielding said he double-checked the rec very thoughtful. She is extremely bright and
wing opposition will redound to Reagan's ord with O'Connor again Tuesday morning, has a razor-sharp mind that makes her cQIIJle
benefit elsewhere on the political spectrum. shortly before the formal announcement. off as somewhat abrupt. She suffers foo'1s
Nevertheless, Reagan called Rev. Jerry Throughout the process, the White House not too gladly."
Falwell, head of the Moral Majority, to as was inundated by letters, telegrams and The Arizona Bar Association ratings of
sure the Lynchburg, Va., Baptist that O'Con other del:;ices promotin~ some serious as well Arizona judges listed O'Connor near the top,
nor opposes abortion, according to a Moral as not-so-serious candidates. with a. combined excellent-good rating of 81
Majority spokesman. Falwell earlier de A week and a half ago. Fielding said, a percent in 1980 for her written opinions.
nounced the appointment. stack of cables and letters suddenly poured Attorneys taldng part in the association sur
The search for a nominee began informal in promoting Phyllis Schlafl.y, leader of anti vey gave her high marks in nearly every cate
ly in late March after Attorney General Wil ERA forces, for the court. ·'She was never gory, with her lowest score of 53 per cent
liam French Smith met privately with re on anyone's list," assured another White coming in the category of "courteousness to
tiring justice Potter stewart. Without dis House official. litigants and lawyers."
closing Stewart's plans to retire, Smith or O'Connor first became a judge on the state
dered a handful of his top aides to begin A BRAINY PERFECTIONIST WHO "LOVES TO Superior Court in January, 1975; she moved
reading legal opinions and scholarly jour WORK"-NOMINEE BELIEVES IN FAMILY, to the Court of Appeals in 1979. She has
nals in search of candidates. EQUAL RIGHTS re<:e<ived high marks all three times the Ari
Before Smith could inform the president, (By Allan Dodds Frank and Lyle Denniston) zona. Bar Association has rated the courts.
the March 30 assassination attempt took Raised on the large and lonely reaches of Judge O'Connor's six years in the state
place. Not until April 21-12 days after the Lazy B ranch, but sent off to the city Senate are expected to be the main target of
Reagan left the hospital-did he learn of the now and then to learn about the world, opposition to her nomination.
impending vacancy, which was to remain Sandra Day O'Connor is now a somewhat Her record on abortion there includes votes
secret until Stewart's announcement on austere, cautious perfectionist of the law. against a req'..rnst that Congress overrule the
June 18. The judge chosen to be the first woman to Supreme Court's 1973 decision by adopting
a constitutional amendment, and against a
Although the White House publicly insist sit on the U.S. Supreme Court has a public
proposed ban on free abortions at the state
ed that Reagan was looking for the "best image of a brainy judicial technician and a
university hospital.
July 8, 1981 CONGRESSIONAL RECORD - SENATE 14871
While being interviewed this week during as an assistant attorney general and De you ride a horse to do something, not for
the final judicial screening process, she told Concini was an aide to the governor. tun."
a Justice Department official that she voted She has spent 20 years in Republican poli
against the abortion-funding bill because tics as a member of her precinct commit RECOGNITION OF THE MINORITY
that was ·a "rider" to a football stadium tee, legislative district chairman, Republi LEADER
bond-issue proposal, and the state constitu can senate majority leader, and co-chair in
tion bars unrelated legislative "riders." 1972 of the state campaign to re-elect Presi The PRESIDENT pro tempore. The
In 1970, before the Supreme Court ruling, dent Nixon. minority leader is recognized.
a Senate committee on which she servemd aa:pk - Her husband, John J., is a partner in one
proved a bill to repeal the state's law of Phoenix's largest firms. In an interview,
1ng abortion a crime. She told the Justice he described her as one who "loves to work THE UNITED STATE3 SENATE
Department she does not remember how she and works hard and well."
voted on that. He and his wife and their three sons en THE SENATE AND THE WAR OF 1812
She voted for a "freedom of conscience" joy skllng, tennis, golf and hiking. They ( 1809-1816)
blll to permit medical personnel to refuse often relax by retreating to a cabin in the Mr. ROBERT C. BYRD. Mr. President,
to perform abortions in violation of their Arh.ona llwuntains ne.:i.r .Prescott. I continue with my series of statements
personal beliefs; that measure becaJne law.
She sponsored a bill, which was not en Judge O'Connor's personal style grew out on the United States .::.enate. '1he state
acted, to permit state agencies to take part of her childhood on th\!" Da.y ;a.nil ·s ranch ment today concerns tne years 18i.J9-
in birth control activities. with 2,000 cattle, the Lazy B, which "Uns 1816.
In conversations this week with the Jus along the Gila River drainage straddling the Mr. President, let me describe a scene
tice Department, she sa.l.d she had not been southern portion of the Arizona-New Mexico almost too terrible to contemplate: en
"a leader or outspoken advocate on behalf border. emy soldiers landing on American
or either pro-life or abortion-rights orga When O'Connor was born, "she arrived shores; a pitched battle ending with the
nizAast ioa nsse."n ator, she supported a blll to re Tinh eE lS Ptaars.o ,M" rhs.e rD mayo tehxeprl,a iAndead Mthaaet Dthaye, 2to5l3d- defeat of United &tates armed forces;
write state laws to assure equal legal rights square-mile ranch was so far from any hos enemy troops on the streets of Washing
for women, and she once supported ratifica pital that she visited her mother in El Paso ton, D.C.; the Capitol, the White Rouse,
tion of ERA by Arizona,-something that has for several months while bearing each child and other government buildings ~blaze.
never occurred. She also has supported a in order to use hospital facilities in Texas. Such a great national tragedy may seem
voter referendum on ERA, which was not Mrs. Day said that Sandra attended ele inconceivable, and, yet that is precisely
adopted. mentary school and high school in El Paso what did happen here in the summer of
While serving on the board of trustees of before departing at 17 for Stanford Univer 1814 when British troops broke through
Stanford University, O'Connor had a role in sity, where she received honors for complet
the American lines at the battle of
another issue affecting the rights of the ing her undergraduate degree in economics
sexes. Sororities had been barred from the in three years and for law school work. Bladensburg, marched down Maryland
campus and, fellow trustee Sharon Percy Avenue and burned much of this city.
"Sandra was a very good student," Mrs.
Rockefeller said, O'Connor agreed with her Pow this cRlami.ty occurred, and the role
Day said. "She did well in every subject."
that Stanford had been a better place with The vast distance from the ranch to any of the United States Senate in the war
ovoutte dso rtoor iatilelosw. Etvheeni rs or,e tOu'rCno nbneocra uuslet imfraatteelry metropolitan center also meant it was diffi of 1812, will be the subj~cts of my re
cult for Hs>rry and Ada Mae Day to take their marks today, as part of my continuing
nities were allowed, and she wanted to give
female students equal opportunity. three children to church. series of addresses on the history of t}lP
Her friends also say that she personally "We have a good moral life," Mrs. Day United States Senate.
has a strongly "pro-family" philosophy. said. "We raised our three children that In my last address, I discussed the
They cite a homily she gave at the wedding way." Senate during the era of Thomas Jeffer
of two people whom she had introduced, in Alan Day, Judge O'Connor's brother and son, concluding with the election of his
which she said that "marriage is the single now the Lazy B manager, told The Star yes successor, James Madison. On January
mpeoosptl ei minp olorvtae n.t. .e.v eMnta rirnia gteh eis ltihvees foouf ntdwao tweerdrea ys ethnat t bhye tahnerli rh ipsa trweno tssi sttoe rsv ifsriet~ ufa0mnti.llyy 23, 1808, Madison was chosen as his
tion of the family, mankind's basic unit of friends in El Paso, Los Ano:eles. Phoenix and party's presidential candidate by a Re
society, the hope of the world, and the other cities for a month or more to gain ex publican congressional caucus. According
strength of our country." posure of life away from the ranch. to the diary of John Quincy Adams, who
In the state senate, she has been identi Day said that the children attenf1ed what was then a Senator from Massachusetts,
fied with a number of "good government" ever church the family friends visited. He it was Vermont Senator Stephen Bradley
issues--.sponsoring bills to make it more dif said there wes no p3rtlcular de11ominat.ional who called the caucus together. Bradley
cult to commit persons to mental institu focus, but that more often than not the claimed to have received authority to call
tions, to use gasoline tax funds to pay for churches were Eois-::ooal. such a conclave by the Republican caucus
bike paths, to broaden the state's open "We always had friends from all walks
meetings law, to codify state anti-trust law of life." four years earlier, and so he sent circ
into a uniform code, to adopt a no-fault Mr. O'Connor declined to comment about ulars announcing the meeting to all Re
divorce law, to restrict child labor, and to his family's religious practices. He is Cath publ: can members of the House and
oppose residency requirements for welfare. olic, however. and the three O'Connor boys Senate. In fact, because party lines were
In addition, she sponsored a blll to pro attended a Catholic prep school in Phoenix so indistinct in those days, he sent
vide for merit selection of judges, a practice before going to college. notices to all but five members of the
that has now become law in Arizona, where
With her brother, sister and parents, the Senate and twenty-two members of the
judges once stood for election.
On the Supreme Court, she wlll jo'1n an judge owns the 101-year-old Lazy B, a vast House, excluding them only on the
old friend, Willlam H. Rehnquist. Both were agglomeration of federal and state land grounds that they "have never been in
le.:rnes in the bi12'h desert built around water
academic leaders in the 1952 class at the the habit of acting with us." Madison
holes. She handles the legal work for the
Stanford University Law School and were ranch, her sister Ann hel"s with the book won by a vote of 83 to 6, indicating his
editors of the Stanford Law Review. k.eeping and Alan is the head. cowboy and strong popularity with congressional
The O'Connors and the Rehnquists re manager. Republicans. However, this margin is
mained friendly while practicing law in
Phoenix and frequently visited each other. Her family came to Arizona from Kansas somewhat deceiving, since some sixty
The Rehnquists once took Sandra O'Con and Vermont, and o'otained land around supporters of James Monroe of Virginia
nor's mother, then in her 60s, on a pack trip waterholes from homesteaders and from and George Clinton of New York boy
through the Gila wilderness in southeastern Apache Indians. Tbe ranch covers an area cotted the caucus. One who boldly at
Arizona. more th·an four times the 61 square miles of tended the caucus and paid the price for
land area in the District of Columbia, and
Judge O'Connor is acquainted with, and it was Senator John Quincy Adams, son
was once roamed by Geronimo and Cochise.
close to, most of the state's political leaders, of former President John Adams whom
Republican Sen. Barry Goldwater has been Alan Day said that O'Connor visits the Jefferson had defeated for the presidency
one of her strongest boosters. He said yes ranch "three or four times a year. She likes
terday that he has consulted her from time to come over when we're rounding up and in 1800. The younger Adams' conversion
to time for advice about constitutional ride with us for a day." to republicanism cost him his Senate seat
issues. Mr. O'Connor said that he and his wife that year when the Massachusetts legis
She got to know Sen. Dennis DeConcini do not ride horses for recreation frequently. lature, outraged over Jefferson's Em
D-Ariz., in the mid-1960s when she worked He explained that "when you're on a ranch, bargo, elected James Lloyd over Adams.
14872 CONGRESSIONAL RECORD - SENATE July 8, 1981
President Jefferson, however, repaid his lengthier speeches, more heated debate, tion between boarding house residency
political debt to Adams by appointing and a willingness to take up a far greater and patterns of voting in the Senate and
him minister to Russia.1 range of subjects. <The House was still House. In choosing places of temporary
As Professor Marshall Smelser had relatively small in number then and its residence in the ca.pita! city, members of
pointed out, in his masterful synthesis of rules were not as restrictive of debate as Congress naturally congregated accord
this period, The Democratic Republic, they are today). For that same first ses ing to their political and regional in
1801-1815, Madison's election by the sion of the Eleventh Congress, the tran terests. How one voted helped to deter
caucus would affect his entire adminis scripts of the House proceedings run to mine with whom one lived, and perhaps
tration: "As the creation of the caucus, 420 pages. For the second session the vice versa.
Madison could never dominate his, Senate debates fill 100 pages while the Washington, D.C., during those early
makers." 2 Following after the strong House debates fill 1,400. This disparity years, was not a city of monuments, mu
pbreecsaimdeen ac yr eolfa tTivheolmy awse Jaekf fperressoind,e Mnta. dTihsoisn, hCelalpys o tto K eexnptluacink yw dheyc itdheed y toou qthufiut lh iHs esnerayt sae ruomusg,h phaerwkns, wainldde brnroesasd saevttelneumeesn. tI,t w ~iatsh
of course, is not to denigrate his con in the Senate to stand for election to the muddy streets, a few taverns, and a
siderable achievements in public life, as House. As Clay wrote to James Monroe: handful of boarding houses. Foreign dip
one of the leaders of the Constitutional "Accustomed to the popular branch of a lomats considered it a hardship post, and
Convention of 1787, as author with Alex legislature, and preferring the turbu members of Congress found it equally
ander Hamilton and John Jay of the lence <if I may be allowed the term) of a inhospitable, an extra inducement for
Federalist Papers, as leader of the numerous body to the solemn stillness of keeping sessions of Congress as short as
Republicans in the House of Representa the Senate Chamber, it was a mere possible. Because of the acute shortage of
tives, and as Secretary of State under matter of taste that led me, perhaps housing, and the great problems of
Jefferson. But James Madison simply dld injudiciously, to change my station." 4 transportation in those days, most sena
not measure up to the demands of execu Henry Clay did not fare too badly in tors and representatives left their fami
tive leadership in those troubled times. the House-he was elected Speaker on lies at home. Few could afford the luxury
The paramount national issues when his first day in that body! One of his of building or buying a private home in
Madison became presidentw ere· United biographers, Clement Eaton, has called the capital-and indeed, until modern
States' relations with England and Henry Clay "the boldest and most de times there was a definite political
France. In a previous address, I dis cisive," and "one of the best and most stigma to owning a home in Washington,
cussed President Jefferson's efforts to powerful Speakers that the House for it seemed to symbolize a politician's
wards neutrality and his ill-fated of Representatives has ever had." 6 Clay alienation from hLs constituents. So,
Embargo. But Madison's administration has also been described as the "most members of Congress lived in boarding
began with a brief "honeymoon," even powerful man in the nation from 1811 to houses on Capitol Hill, and down Penn
rosier than that accorded to most ad 1825." 0 Another historfan has speculated sylvania Avenue as far as Georgetown.
ministrations. Relations with Great Brit that when one considers Clay's con Their rooms served as offices for handling
ain improved steadily, as a result of sp~cuous opposition to the policies of correspondence and other legislative
negotiations with the British Minister Presidents Madison and Monroe, he was business off the floor of the Senate and
to the United States, David Erskine, and perhaps "the leader of an anti-adminis House chambers, and we can be sure that
an agreement was reached by which the tration faction within the Republican politics and legislative tactics were prime
British would lift their odious Orders in party rather than the leader of the party subjects of conversation in their dining
Council, interfering with American itself." 1 I mention this to indicate that rooms and around their fireplaces each
trade, and the United States would re while the Federalist party was still in evening.
spond by repealing its Non-Importation existence during the Madison era, the
Every election year we hear much talk
Act. President Madison called Congress differences inside the majority Repub
about the "mess in Washington," and
into special session and in his :first presi lican party were perhaps growing more
dential message urged Congress to pass significant than those between the two so it is amusing to read in the early Con
implementing legislation. This was an parties. gressional Directories that in 1809 there
was a "Washington Mess" at Mrs. Wil
immensely popular act which won the
In the House, "Harry of the West," as son's boarding house, where seventeen
new president great public acclaim from
Clay was affectionately called by his senators and representatives roomed.
both the Republicans and the Fed
supporters, became the leader of a young The "Mess" was not a reference to the
eralists. On June 19, 1809, the Senate
band of warhawks. Representing the physical condition of the boarding house
unanimously approved legislation lifting
western and so'..lthern States primarily, or its lodgers, but to the practice of eat
the ban on trade. Once differences with
they spoke out loudly for war with ing meals together regularly, as in, say,
the House version could be settled, the
Britain to avenge the nation's honor, to a military messhall. One can also find
Senate passed the amended version on
protect theiT western States from references to a "War Mess" of warhawks
June 28, and then adjourned.3 Tragically,
British-provoked Indian attacks, to an and to "Dawson's crowd" or "Coyle's
the national jubilation was soon shat
nex Canada, and to expand the United family" to the members of the Dowson
tered by news that the British Cabinet
had repudiated Erskine's agreement. States territorially. One of the most in and Coyle boarding houses. If we had
teresting sidenotes about the warhawks been members of the Senate in 1809 we
Once again trade restrictions were im
posed and relations between the United was that many of the most hot-·tempered might have taken rooms at Mrs. Hamil
among them shared the same boarding ton's, Mrs. Frost's, Miss Regan's, or Mr.
States and Britain grew more strained.
house on Capitol Hill: Clay and George Claxton's on Capitol Hill, or at Mrs.
An examination of the proceedings of Bibb of Kentucky, and John C. Calhoun, Suter's on F Street, Mr. Huddleston's on
this :first short session of the Eleventh William Lowndes, and Langdon Cheves Pennsylvania Avenue, or Mr. Crawford's
Congress reveals marked differences be of South Carolina, all roomed at Mrs. of Georgetown. Some of these appear to
tween the Senate and the House. In the Dowson's boarding house. have been clusters of houses, as for in
Senate there was little debate over
The significance of patterns of resi stance Mrs. Dowson's of Capitol Hill,
Madison's proposal. Sessions appear to dence in early Washington was first un where members were listed as staying at
have been quite brief, with only a few
covered by Professor James Sterling the ''House in which she resides," the
speeches made by supporters of the bill
Young of Columbia University in his "House next door," and the "House oppo
<although I should add that not all re
marks on the :floor were transcribed in fascinating book, The Washington Com site side of the way." s <Parenthetically,
those days). The entire transcript of the munity 1800-1828, published in 1966. By boarding houses have not disappeared
examining the early congressional direc entirely from Capitol Hill in our own
month-long session :fills only :fifty pages
tories, Professor Young found th<tt. mem day. A number of them still stretch down
in the Annals of Congress. By contrast, bers of Congress were listed not by their East Capitol Street and its environs. A
the House of Representatives was far states or parties but by the boarding "Mrs. Snvder's" has long been a favorite
more active, with longer sessions,
houses and hotels in which they lived. temporary residence for scholars using
Footnotes at end of article. Furthermore, he found .a high correla- the Library of Congress and the National
July 8, 1981 CONGRESSIONAL RECORD- SENATE 14873
Archives· and Appalachia House on intrigues." Of Madison he now said, "re political parties. He argued that the
publicanism was not safe in his hands." 12 take-over of the federal government by
Third St~eet, Southeast, provides ro~ms
Giles was particularly galled by Madi the Republican party had led them to
for students and faculty of Appalachian
son's strong reliance on Secretary of the "run into the opposite extreme" from
State University, located in Boone, N.C.,
Treasury Albert Gallatin, a man for the Federalists' efforts towards centrali
during their educational trips to Wash
whom he had no use at all. Giles led a zation. The Republicans had so relaxed
ington.)
successful movement in the Senate to the powers of the government as to "im
I have been talking about Henry Clay block Gallatin's promotion to Secretary pair or destroy its efficacy in resisting
and the warhawks in the House of of State in Madison's Cabinet. But Giles foreign aggressors." Senator Giles de
Representatives, to whom historians was not the only Republican to show clared th1t he opposed both of these
have devoted most of their attention independence of the White House. In extremes and wanted to find a middle
during this period, but my purpose is January 1809, sixteen Republican sena way in which individual liberties could
really to focus on the Senate. There, the tors joined with five Federalists to order be protected while the nation armed it
leader of the majority Republican party, all armed vessels into active naval serv self for its own protection. Claiming that
and also the leading war artvocate, was ice, in an attempt to force the adminis he did not want war, Giles wanted the
Senator William Branch Giles of Vir tration to prepare for war with Great nation prepared in case war came. And
ginia. Giles was forty-two years old when Britain.13 he added that should war with Britain
he was elected to the Senate in 1804, but Not all of the polit1cal fighting took arise, then the United States would be
he had already established himself in place within the Republican ranks. The justified in annexing nearby British ter
national politics. A graduate of Prince diminishing Federalist party still offered ritory, by which he was clearly referring
ton University, he had also studied law convenient targets for fire. In December to Canada. Giles' bill passed the Senate
under George Wythe at the College of 1809, for example, the arch-Federalist by a vote of 25 to 6, but died in a House
William and Mary. About half the mem Timothy Pickering, Senator from Mas committee. As Giles' first biographer,
bers of the Senate during this era were sachusetts, rose in the Senate to de Dice Anderson, has written, the war of
college graduates-far out of proportion nounce what he consideTed the uncon 1812, "if Giles had had his way, would
from the national average-and Prince stitutional seizure of West Florida frcm have been the war of 1810." 15
ton, Yale, Harvard, and William and
Spain. Madison had justified this move As this legislation showed, the collapse
Mary were the colleges most members
on the grounds that the territory was of Madison's diplomatic initiatives was
had attended.0 included within the Louisiana Purchase, leading Congress to take matters into its
William Branch Giles entered the but Pickering read from a letter by own hands. House Foreign Affairs Com
House of Representatives in 1790 at the French Foreign Minister Talleyrand, mittee Chairman Nathaniel Macon had
age of twenty-eight. There, he became dated December 21, 1804, arguing that introduced a bill which was known as
the most outspoken opponent of Alex the Louisiana Purchase included no ter "Macon's Bill Number One" which em
ander Hamilton's financial program, and ritory east o'f the Mississippi. As Picker bodied the administration's proposals
also of the Jay Treaty. He also de ing finished this reading, Senator Sam for limiting all British and French im
nounced what he considered to be the uel Smith of Maryland <brother of ports to only American ships. Objections
adulation of President George Washing Madison's Secreta.ry of State Robert to this bill in the Senate had led to sig
ton. Giles was e. leader of the Repub Smith) rose to ask whether the docu nificant revisions, and, in 1810, Congress
licans in the House, until ill health ment was still secret. Pickering, h'.mself passed what became known as "Macon's
forced him to resign in 1802. Two years a former Secretary of State, realized. Bill Number Two." This pivotal piece of
later he joined the more sedate Senate, that he had violated the Senate's rules legislation provided that the United
where he quickly assumed leadership of by reading a confidential document States would trade with both Britain
the Jeffersonian forces during the im without the permission of the Senate. and France, but if one of these nations
peachment trial of Samuel Chase.10 He tried to defend his action by arguing lifted its trade restrictions, then the
John Randolph, another Republican that sufficient time had elapsed to re United States would terminate all trade
leader in the House, considered Giles move any need for secrecy, but his ene with the other. Initially, this legislation
"the most accomplished debater which mies jumped on the chance to embar reopened American trade with Europe,
his country had ever seen." Senator rass him. On a motion of Henry Clay and commerce ftourished. But then the
Thomas Hart Benton, in h1s monumental then still a senator from Kentucky crafty French leader, Napoleon, acted to
memoir of Congress, Thirty Years View, the galleries were cleared and the Sen make it appear that France was lifting
left us this description: "Mr. Giles nei ate moved to censure Pickering for its trade restrictions. Under Macon'fl
ther read nor studied, but talked inces breach of confidence. Thus Timothy Bill, the United States had no alterna
santly with able men, rather debating Pickering became the first member of tive but to suspend its trade with Brit
with them all the while; and drew from the Senate ever to be censured. In the ain. President Madison issued a new
this source of information, and from the 1 72 years since then, the Senate has proclamation of non-intercourse with
ready powers of his mind, the ample censured only seven of its members. In Britain, which Congress affirmed in Feb
means of speaking on every subject with most cases the effect was both personally ruary 1811.10
the fulness which the occasion required, and politically devastating, and, indeed, The Twelfth Congress, which met at
the quickness which confounds an ad Pickering shortly afterwards resigned the call of President Madison a month
versary, and the effect which a lick in his seat.a earlier than scheduled, was a war Con
time always produces." 11 The drums of war sounded loudly in gress. Tempers had risen, and American
During Jefferson's presidency, Giles 1810. Senator Giles was chairman of a foreign policy was in a sorry state. Trade
was one of the administration's chief committee appointed to respond to Pres with Britain was cut off, and yet evi
advocates in the Senate, ·but once James ident Madison's military proposals, and, dence was emerging that in truth France
Madison entered the White House, Sen in January 1810, he reported a bill from had not suspended its own trade restric
ator Giles' pugilistic tendencies re this committee for the "fitting out, om tions. British naval supremacy in the
emerged. Attempting to explain his cering, and manning /of/ the frigates Atlantic was also galling to the young
break with his party's standard bearer, belonging to the United States." While American Republic, so proud of its inde
Giles wrote to a friend that he had noth the Republican party had long been pendence from Great Britain. Not only
ing but the "warmest friendship and the philosophically opposed to a large na vY, were the British disrupting American
most affectionate regards" for Madison or any other sign of a strong central commerce but they were conscripting
before he became President, but he came government, Giles now argued that the American seamen. When the warhawks
to see the new President as the "spirit navy was not a threat to individual lib in the House voted to expand the size of
and support of the most unprincipled erty but would secure liberty for the the army by 10,000 men, the Senate
American people. In a remarkable ad raised the ante to 25,000. As we might
parasites, and dupe of the most wretched dress in the Senate on January 23, 1810, expect, William Branch Giles took the
Footnotes at end of article. Giles dissected the history of the two lead on this issue. The United States had
14874 CONGRESSIONAL RECORD - SENATE July 8, 1981
enjoyed a long course of prosperity, Giles Some of Madison's critics have charged lengtheni.ng the time of enHstment from
told his colleagues in the S.:mate, "but we that he capitulated to congressional one year to upwards of five years.21
ought not to calculate upon perpetual pressures in return for his renomination
During 1813 the war situation grew
exemption from the common calamities to the office of president. This charge ap
bleaker. The British navy blockaded the
of nations. When days of adversity shall pears groundless, since Madison's re
entrances to the Chesapeake and Dela
arrive, we should meet them with be nomination was made certain as early as
ware bays, eventually extending their
coming fortitude and energy." 11 March 1812 when the Pennsylvania leg
blockade from New England to the
The "days of adversity" were closer at islature elected a solid slate of electors
Georgia coast. The blockade was ex
hand than Giles anticipated. President committed to him. In May, Madison was
tremely effective, causing scarcities of
Madison and his new Secretary of State, renominated by the Republican caucus
goods along the East Coast, high infla
James Monroe, had become convinced of by a vote of 82 to 0, although again with
tion, and a drastic reduction in govern
the inevitability of war. On April 1, 1812, several abstensions.20 Vice President
ment revenues on customs which brought
Madison sent Congress a secret message George Clinton having died in office, the
the government to the verge of bank
asking for an extension of the embargo caucus nominated Governor Elbridge
ruptcy. Meanwhile, the Americans again
for sixty days to protect American ships Gerry of Massachusetts for vice presi
as war approached. According to Joseph dent. Today we still associate Gerry's moved to gain control over the Gre~t
Gales, publisher of the National Intelli name with political redistricting: "Ger Lakes. In April a force of 1,600 Ameri
cans under General Dearborn seized the
gencer and one of the first reporters of rymandering." President Madison did
British naval fleet at York, the present
congressional debate, a delegation of not buy his renomination with a declara
day city of Toronto. The mission ended
members of Congress led by Speaker tion of war. He was as convinced as were
Clay called upon the president to assure the warhawks that war was both neces with the destruction of two British ships
him that a majority was ready to vote sary and inevitable, but we may assume under construction, but at the cost of
for a declaration of war if he requested that the national war fever did not dam 320 American lives and the control of
it. On June 1, 1812, Madison sent Con age Madison's chances for reelection the Lakes remained in British hands.
gress his decla!·ation of war, charging that November. The American forces were also accused
Britain with seizing American seamen, Mr. Presi d en t, as we have been made of having burned government buildings
violating the nation's neutral rights and so painfully aware in recent years, wars as they left York-an act which would
territorial waters, blockading United are not so easily fought on the battle stlmulate a terrible revenge. However,
States ports, and continuing their offi fields as they are in the cabinet room or we should note the General Dearborn,
cial restrictions on United States trade. the congressional hearing room. Martial in a letter to Senator Joseph Varnum,
"We behold ... on the side of the United spirit and expectations of quick and easy insisted that his troops neither burned
States, a state of peace toward Great victory in the eyes of those who declare nor destroyed any public or private
Britain," wrote Madison. "Whether the war cannot be quickly translated into buildings in York, with the exception of
United States shall continue passive un military performance. Even with Great two block-houses and a few sheds be
der these progressive usurptions and Britain's preoccupation with its con- longing to the Naval Yard. It was the
these accumulated wrongs, or opposing 1i1ct with Napoieon on the European British, themselves, who set ablaze a
force to force in defense of their na Continent, the war in North America frigate under construction and a large
tional rights, shall commit a just cause went very badly for the United States. store-house of naval equipment to keep
into the hands of the Almighty Disposi;r The gallant young men who m3trched off them from falling into the Americans'
of Events ... is a solemn question which to battle met with ignominious defeats. hands. As General Dearborn explamed:
the Constitution wisely confides to the In the summer of 1812, the United States "Several of the most valuable public
legislative department of the Govern launched a disastrous attack on British buildings, connected with their principal
ment." 18 Canada, an attack which ended with the military positions, were destroyed by the
On June 5, 1812, the House of Repre city of Detroit occupied by the British, explosion of their magazine, which
sentatives voted 79 to 49 for war. In the the American garrison at the site of proved so fatal to our troops; and al
Senate, Federali.sts from New England present-day Chicago massacred, and though there were strong provocations
and the mid-Atlantic maritime states with control of Lake Erie firmly in the for burning or destroying the town, noth
worked to delay a vote. Realizing that hands of the British navy. In November, ing of the kind took place." 22
the Reoublican ranks were divided that General Henry Dearborn led a large In June the British captured the
some Republicans favored total wa~ with American force to Canada, but the state American warship Chesapeake outside of
Britain, while others wanted war with militias refused to follow him across the Boston harbor, an event we remember
both Britain and France, or limited war, border, and the expedition was forced to today for the dying words of its thirty
or continued delay, the Federalists turn back. These events exposed the two-year-old captain James Lawrence:
loaded the war resolution with numerous weakness of the state militias and the "Don't give up the ship!" An even
amendments to provide a cover and an need for a strong regular army, and also younger captain, twentv-eight-year-old
inducement for Republicans to vote caused President Madison to reorganize Oliver Hazard Perry inscribed these
against the war. This strategy slowed the War Department. The only bright words on his flagship, the Lawrence,
down the war movement but could not notes were the naval victories of the which played an important role in the
prevent final passage of the resolution. U.S. Constitution ("Old Ironsides") and greatest American naval victory of ihe
One of the key votes was cast by Senator of Captain Stephen Decatur, who cap war. On September 10, 1813, the Ameri
William Giles, who alternated between tured the British warship Macedonian cans won a decisive victory over the Brit
pro- and anti-war votes. According to and towed it back to New London Con- ish on Lake Erie, during which the
G~les' most recent biographer, Dr. Mary necticut. ' Lawrence was so badly damaged that
G1~nta of the National Historical Publi The second session of the Twelfth Con Perry was forced to move to another ship
cat!ons and Record Commission, Giles gress opened on November 2, l.~12 in a in his fleet. My colleagues may recognize
believed that both Britain and France much more subdued mood. Members from my description of this event the
we~e guilty of outrages against the heard a message from Pre~ident Madison 20 bv 30 foot depiction of the battle
~mted States but to war on both of them calling for enlargement of the Navy and which hangs over the east staircase of
simultaneously would be folly. He finally higher pay for the Army, and authoriza the Senate wing, just outside of mv of
concluded that Britain posed the tion of a $20 million loan to pay the fice. This impressive painting, by which
greatest threat, since it was based in costs of the war. The Sen"tte and House we all pass many times during the day,
Canada and controlled the Atlantic. His responded favorably with far less op was added to the Senate's artistic ~~onec­
final vote for war, therefore was cast position than Madison had received tion in 1873. In the carved wooden rib
out of a "psychological fear' of domi during his first term. The only significant bon across the top of the painting is the
nance by Great Britain." On June 17, opposition to the pres1d~nt in the Sen message that Perry sent to General Wil
1812, the Senate voted 19 to 13 for war.u ate came over his p1an to add twenty liam Henry Harrison after the battle:
more regiments of infaritry to the Army, "We ha.ve met the enemy and they are
Footnotes at end of article. and there the opposition centered . on ours."
July 8, 1981 CONGRESSIONAL RECORD - SENATE 14875
Through the efforts of the American then one night her family was awakened September 1814, they found the Capitol
minister to Russia, former Senator John by a loud knocking on their door. "Willie a smoke-stained ruin, windows broken,
Quincy Adams, the Tsar of Russia of Bradley called to us, 'The enemy are ad chambers and furnishings destroyed, the
fered to mediate between the United vancing, our own troops are giving way library in ashes. Congress convened on
States and Britain. President Madison on all sides and are retreating to the September 19 at Blodgett's Hotel on
quickly acted to appoint a peace com city. Go, for God's sake go.' He spoke in Pennsylvania Av enue, down at the foot
mission, composed of Adams, House a voice of agony, and then flew to his of Capitol Hill. Until recently, the build
Speaker Clay, who had supported the horse and was out of sight in a moment. ing had been used as the Patent Office,
war, Senator James Bayard, who had We immediately rose, the carriage and and it was spared destruction only when
opposed the war, and Treasury Secre horses were soon ready, we loaded a Dr. William Thornton <the original de
tary Albert Gallatin. The Senate quick wagon with what goods rem::i. ".ned and signer of the Capitol Building) stood in
ly confirmed the nominations of all but about three o'clock left our house with its doorway and told the British officer
Gallatin. Federalist Senator Rufus King all our servants, the women we sent to in charge that "to burn what would be
of New York challenged Gallatin's some private farm houses at a safe dis useful for all mankind would be as bar
·nomination, asking who would perform tance, while we pursued our course." barous as formerly to burn the Alexan
his duties at the Treasury while he was The next morning the Smith family drian Library, for which the Turks have
•absent in Europe. Antiadministration received the sad news that '·our city was since been condemned by all enlightened
Republicans, led again by William Giles, taken, the bridges and public buildings nations.'' 20
joined forces with the Federalists to op burnt, our troops flying in every direc The Senate and House met in these
pose the nomination which was defeated tion. Our little army totally dispersed." cramped quarters for several months
The British had marched into the city until the citizens of Washington built
18 to 17. Despite the lack of confirma
and destroyed first the Navy Yard and them a temporary meeting hall, "The Old
tion, however, Gallatin sailed for Russia
then the Capitol. Erick Capitol," on the site of the pres
as the president's emissary. The whole
"They had great difficulty in firing the ent-day Supreme Court Building. This
issue was made moot by the British de
Capitol," Mrs. Smith reported, "several act of generosity on the part of Wash
cision to reject the Tsar's offer. How
houses on the hill were burnt by cinders ington citizens was motivated by a desire
ever, the British did agree to enter into
direct negotiations with the Americans. from the Capitol, but none by design." ~· to prevent the federal government from
As a symbol of the Government, the moving to another location. Indeed,
Since Gallatin was already overseas, he
Senate and House wings of the uncom Philadelphia was making overtures to
resigned his secretaryship on February
pleted building were slated for destruc attract the government back to that
9, 1814, and joined the new negotiations.
tion by the British, who piled up books former site. Another generous offer came
On the same day, the Senate at last con
from the Library of Congress, along with from the Georgetown booksellers, Rich
firmed his appointment to the Peace
documents and furnishings, to set fire to ards and Mallory, who offered the use of
Commission, which would meet in the
the chambers. Capitol Architect Ben their books to members of Congress dur
Belgian city of Ghent.23
jamin Henry Latrobe later wrote that ing that session, since the volumes of the
The negotiations proceeded slowly
"great efforts were made to destroy the Library of Congress had been destroyed.!!7
and in April, after the abdication of
Supreme Court room, which was built It was in connection with the destruc
Napoleon, the British decided to pros
with uncommon solidarity, by collecting tion of the Library of Congress that for
ecute the war with new attention
into it, and setting fire to, the furniture mer President Thomas Jefferson wrote
rathre than settle their differences di
plomatically. Most of the fighting con of the adjacent rooms. By this means the Senator Samuel Smith on September 21,
tinued to concentrate around the Cana columns were cracked exceedingly.'' Up 1814:
dian border and the Great Lakes, but stairs in the Senate chamber, Latrobe I learn from the newspaper that the Van
found the damage extensive. The fire dalism of our enemy has triumphed at wash
the stalemate continued. The BrWsh
bombarded American forces at Fort "burnt the marble columns to lime" and in,~ton, over science as well as the arts, by
"cracked every thing which was of free the destruction of the no'.:>le edifice in which
Erie, but their attack against Fort stone." 25 The interior of the Capitol was it was deposited.
Plattsburg on Lake Champlain proved
totally destroyed and the exterior was To replace the burned copies o.f the
a complete failure. As a diversionary
saved only by a fierce thunder storm Library, Jefferson offered his own mag
tactic, to reduce pressure on the Cana
and heavy wind-of the type we so often nificent collection, which he had spent
dian front, the British launched a force
experience during Washington sum fifty years putting together, having
of 4,000 men to attack the mid-Atlantic mers. As we know. the British also de "spared no pains, opportunity, or ex
seacoast, and the city of Washington
stroyed the White House, forcing Presi pense, to make it what it is now." Jeffer
became their prime target.
In mid-August 1814, the British fleet dmeonstt Mofa dtihseo nW toh itfele eH otou sVe iragritn iaan. dW fhuilre spoonli'tsi clsi,b rhair.svto cryo,n tsaciinenedce 6, .4la8w7 , vloi1t1e1rmaetus roef,
sailed into the Chesapeake Bay to the
mouth of the Patuxent River. British nishings were destroyed, Dolley Madison fine arts, and philosophy. It is somewhat
did order the staff to save the Gilbert stunning to read that some members of
troops disembarked and marched over Stuart portrait of George Washington. Congress obiected that Jefferson's col
land to Marlboro, Maryland, where they which hangs in the White House to this lection was "too philosophical, had too
were met by the combined American day. It was after the destruction of many boo.Ks in foreign languages, was too
militia and naval forces under General Washington that the British moved to costly, and was too large for the wants of
lWtawtioel lri asCmido emWs minfooddueogrr heta- Jnodos nhN uaatvh yBe aCrfniaeeplyd.ts a Tinhoe f BKFoaelyrtt i mMtoorc eH,w eanrnirtdye win"hsTeprhieer e tdh SeFtiarr raf nirciSinpsg a nSugcplooetndt Cc1h8o1an5sg,e rC etsohsne.g" l rieFbsrosa rartvuu.tn haAotcericlzyoer ddo in$n2 g3J ,ta9on5 0ua a torrey pc ue2nr6 t,
Bladensburg, near the infamous old Banner." publication, "The Jefferson Library
dueling grounds. Despite the American
Because so many of the staff of the forms the nucleus around which the
advantage of more numerous troops
Senate and House were caned to duty in present collections o.f the Llbrary of Con
fighting on their own territory and de
the miJ.itia to guard the city, the records gress have been arsembled." Many of the
fending their capital city, the British
of the Congress were left in the Capitol volumec; in JeffP.rson's Lihrary were sub
broke through the lines at Bladensburg
and proceeded towards Washington. until the last moment. As a result, many se:iuently destroyed in a fire in 1851, but
House documents were destroyed in the at.he:· volumes rema!n and have been as
Needless to say, the city was filled with
fire. The Senate, already in some disar sembJed as a unit in the Rare Book and
panic and its citizens fled.
ray following the recent death of its Sec Special Collections Division of the Li
Here is the account of Mrs. Margaret retary, SJ.muel A. Otis, was fortunate to brary.28
tBeallyigaerndc Serm'si thfo, uwnidfee r,o f Stahme uNeal tiHonaarrli sInon hMaavceh ean ,q uwihcko -wcoimttemda cnldeerekr enda ma efda rLmeewr'iss iroTnhye. TWhea rT oref at1y8 1o2f eGnhdeendt wcoitnhc lugdrienagt
Smith. Having observed the cheerful cart and loaded up the Senate's records the war was signed on Christmas eve
rSema~iithne shsa do fn toh ed oAumbtesr iccoann cmerinliitniag, tMhersir. ctoo ucnatrrryys idthee. m to safety in the Virginia e1n81c4e. tToh et hpee aicsesu terse aotfy immaodree snsmo ernetf eor f
eventual victory over the British, but
When the members of the Thirteenth American seamen, naval blockades, and
Footnotes at end of arttcle. Congress returned to Washington in the disputed boundary with Canada
14876 CONGRESSIONAL RECORD - SENATE July 8, 1981
which had caused the war in the first effort to renew the charter, while William troversial one, from the earliest days of
place. It merely restored conditions to Branch Giles led the "Old Republicans" our republic. Prior to 1816 members of
the way they had been before the war determined to defe at the Bank. Giles and Congress had been paid six dollars a
broke out. In those days, news traveled others saw in the Bank the last vestiges day for every day the Congress was in
slowly, and word o.f the treaty did not of Federalism, and an unconstitutional session. Wartime inflation had reduced
reach American shores until February 11, institution as well. On February 20, 1811, buying power significantly enough that
1815. By then, the Americans had already the Senate voted 20 to 20 on the bank the legislators were prepared to tackle
received news of the great victory of issue, which was then decided in the the "particular delicacy of the subject."
General and former Senator Andrew negative by Vice Presldent George Clin Some members who were independently
Jackson at the Battle of New Orleans. ton. Clinton explained his action by say wealthy were opposed to the whole con
Regular troops and frontier riflemen ing that the "tendency to consolidation" cept of salaries for legislative services.
under Jackson's command had inflicted seemed to him a "just and serious cause But others believed that more adequate
appalling casualties on the British line, of alarm." 30 compensation would attract more com
killing or wounding over 2,000 British So the United States went through the petent men to government service. On
soldiers at a cost of only twenty-one difficult War of 1812 without a national March 13, 1816, the Senate followed the
American casualties! This great victory bank, and its finances fell into disarray. lead of the House of Representatives and
was actually won after the peace treaty The war made the need for a central voted 22 to 11 <with 13 Republicans and
was signed, but because it reached the banking institution all the more appar 9 Federalists voting in favor of the bill
public before news o.f the Treaty of ent to the new Treasury Secretary, Alex and 8 Republicans and 3 Federalists op
Ghent, it appeared that the United States ander Dallas, who recommended charter posing it) to establish an annual salary.33
had won the final victory. This event ing a second bank in 1814. Congress, how Niles Weekly Register, a popular na
came as a great boost to the young na ever, passed a much watered down ver tional periodical of the time which f o
tion's pride and self-esteem and made sion, which President Madison chose to cused much attention on the Congress
General Jackson "a symbol of his age," veto in January 1815 on the grounds that estimated that for the past 8 year~
carrying him eventually to the White it was inadequate for the purposes of the Congress had met for an average of
House. restoring the public credit, creating a 165% days each year, amounting to
On February 13, 1815, Senator Giles national currency, and guaranteeing the payment of $991.50 to each member of
reported a resolution honoring General public a means of obtaining durable Congress, exclusive of travel payments.
Jackson and the men who served under loans.31 To raise the salary to $1,500 would mean
his command, for their "most signal ·and Again in his message to the Four an increase of $508.50 a year per member
complete victory over the enemy." A gold teenth Congress in December 1815, totaling some $400,000 in additional fed~
medal was struck in commemoration and Madison revived the issue of a National eral expenditures. Niles noted that the
presented to General Jackson. Two days Bank. In the House, this measure was state legislatures of New Hampshire (Re
later, on February 15, President Madison supported by three remarkable young publican> and Rhode Island <Federalist)
transmitted to the Senate the Treaty of congressmen, Henry Clay, John C. Cal had already passed resolutions condemn
Ghent, and the following day, the Senate, houn, and Daniel Webster, who collec ing the annual salary and demanding
with obvious relief, voted unanimously to tively and individually would shape that it be rescinded, and that the bill
ratify the peace treaty.29 American political life over the next had aroused intense public disapproval
The Senate of the third session of the thirty years, and about whom I shall in Pennsylvania, South Carolina, Ohio,
Thirteenth Congress and of the sub have much to say in the future. In the and Kentucky. However. Niles contended
sequent Fourteenth Congress was very Senate, the Committee on Finance re that "if six dollars per day, for the com
different in attitude from that of the ported the bill on March 25, 1816. Chair pensation of a member of Congress; leav
Eleventh Congress at the start of the man George Washington Campbell ad ing his home and his business to attend
Madison adm'.nistration. The Republi mitted that he considered the bill defec to the affairs of the publ.ic was not too
cans were still the majority party, and tive, but that the members had been in much when the law first allowed it, it
the Federalists had committed suicide as too much disagreement to decirle upon is a great deal too little now; for within
a party through their ill-timed Hartford appropriate amendments. Senator Wil those two periods the normal average
Convention, with its overtures of seces liam Hill Wells of Delaware spoke out value of every article of food and cloth
sion from the Union, which they called forcefully against the bill, arguing ·that ing has been doubled-and certainly 1,500
on the very eve of peace with Great Brit "the disease, it is said, under which the dollars a year can be no object to a
ain. Within a few years, the Federalist people labor, is the banking fever of the gentleman possessed of talents sufficient
Party would be but a memory and all States, and this is to be cured by giving to represent an enlightened people in
members of Congress would identify them the banking fever of the United Congress." Despite these words of sup
themselves as Republicans. But these States." Despite such protestations, the port, in the nex·t el.ection two-thirds of
Republicans had been sobered by the dif Senate passed the Bank bill by a vote the members of the House were defeated.
ficult war, which had seen so many mili of 22 to 12 on April 3, 1816. Capitalized Several senators were also defeated and
tary defeats, the burning of the Capitol, at $35 m111ion, the Brink of the United others resigned rather than standing for
and the bankruptcy of the Federal Treas States had its central office in Philadel reelection. The next year Congress re
ury. They now turned to passing nation phia and as many as twenty-five pealed the Compensation Act.a•
alist legislation: a National Bank, pro branches around the country. Alt.hough Mr. President, I have today recounted
tective tariff's, direct taxation, and in the Republicans had abandoned much of a story of national passion, a sense of in
ternal improvements. All of these meas their herit!'l ge to support the Bank, in justice over our treatment by stronger
ures were far more Hamiltonian than a burst of post-war nationalism and powers, a war for national honor, for
Jeffersonian in nature. realism, the controversies surrounding freedom of commerce, and for territorial
To take one of these as a case study: it were far from over, and would surface expansion. I have described the ignomin
That the Republican majority would again within the comi.ng decades to sig ious de3truct'ion of the naition's eapltal,
charter the Second Bank of the United nificantly alter American political his including the very building in which we
States during the administration of tory.32 meet today, and finally the rebuilding of
James Madison is quite amazing when Before bringing this account to a the nation, with a new emphasis on in
one considers that the Jeffersonian Re close, I should like to discuss one other ternal improvements and westward mi
publicans had bitterly fought .against piece of postwar legislation, certainly gration. The first political era of Feder
Hamilton's original Bank in the 1790's, not as significant as the Second Bank alists versus Republicans was drawing to
and that Madi.son himself had led the of the United States, but one which my a close and a new one-party era was
fight against the Bank while a member colleagues might find most interesting. emerging-. The programs of the two par
of the House. The charter for the first This was the Compensation Act of 1816 ties were merging, and the heirs of
Bank had expired in 1811. At that time which for the first time provided mem Thomas Jefferson were enacting such
Georgia Senator William H. Crawford bers of Congress with an annual salary. Hamiltonian programs as the Second
had led the administration forces in an The furor which this bill aroused dem Bank of the United States. It is signif
onstrates very aptly that the subject of icant to note that after thts great na
Footnotes at end of article. congressional pay has been a most con- tional catastrophy, the war of 1812, that
14877
July 8, 1981 CONGRESSIONAL RECORD - SENATE
the political parties reevaluated their 20 Irving Brandt, The Fourth President, A busted towns. We have pledged that this
positions, swallowed hard, and adopted Life of James Madison (lndianapolis: Bobbs past will not be mirrorea in our tuture
Merrill, 1970), 481-487. and we deserve to be taken seriously in
new measures necessary for a new era. 21 Annals of Congress, 12th Congress, 2nd this quest.
This pattern has been repeated often in sess., 58-62. We are setting aside coal tax reve
our history, and it has generally in 22 Annals of Congress, 13th Congress, 3rd nues to pay the costs of coal develop
volved the federal government's assump sess., 29'/. ment and to provide a balanced frame
tbiiolint y otfh afanr pmreovrieo upsolyw earn taicnidp atreedsp. onsi 4712a; SHeneantrey AEdxeamcust,i vTeh eJ oLuifren aolf, AVloble. rt2 ,G a3l'8la9, work for stable, diverse economic devel
tln (New York: Peter Smith, 1943, 1879, 477- opment in the future. A State like
Mr. President, there was one more
hyiegahrsly osfi gtnhifei caMnat deisvoenn t aidnm tihneis tcrlaotsioinng, 4W83a2•. s Ghianiglltaornd SHoucniett,y TPhoer tFrairysetd Fboyr ttyh eY eFaarms iolyf pgMoeownneertraa. tniAao nnhsd.a sit thhaast thriagth td. uItyt thoa sf utthuraet
during the Fourteenth Congress, and Letters of Mrs. Samuel Harrison Smith (New Mr. President, although I am not
that was the establishment of the first York: Charles Scribner's Sons, 1906), 98-105. naive to equate my hopes with my ex
standing committees in the history of the 25 United States Senate Commission on Art pectations, I earnestly urge that we now
wUansi teadn eSvteantet so fS seuncahte m. aTghniist,u dheo wtheavte rI, f1ai8nc5ed9, A1(W9n7tia6qs)uh, ii3tni.ge sto, nT:h Ge oSveenrantme eCnht aPmribnetri,n 1g8 O10f - rbeagciko nawala yw farorfmar teh ei nd anthgee r oUf. Sp.r oStreancateted.
sbhealilelv, et hite rweaforrraen, ttsa ak es euppa rtahtee ahdidsrtoesrys. oIf of 20t h'.De hComitays oFfr oWncaeskh,i nAgnto Inll u(sNtreawt eYdo Hrki:s toArly jCuodnggmreesnst osfh othueld S uapcrceempte Cthoeu rtr eaansdo nlaeyd
our committees as the subject of my fred A. Knopf, 1977), 117. to rest proposals to cap severance taxes.
next address in this series. 21 Annals of Congress, 13th Congress, 3rd .I am pleased to present the Supreme
NOTES TO "THE SENATE AND WAR OF 1812" sess., 20. Court decision-together with dissents
1 Allen Nevins, ed., The Diary of John Co28ll eIbcitdio.,n s2 4i-n2 6;t heA nLnibetrtaer y Moefl viClloen, grSepsse,c iaAl f or the information of my colleagues and
Quincy Adams, 1794-1845 (New York: Long constituents.
Selective Guide (Washington: The Library
mans, Green and Company, 1928), 51-57. Mr. President, I ask unanimous con
l1ic92,6 M81)8a. 0r1s1h8-16a.8l l1 5S m(eNlesewr , YTohrek :D eHmaorpcerar tiacn Rd eRpouwb , soefs 2s0C .A.o nn2ng3a3rel-s2s s3,o4 .f1 9C8o0n)g, re1s8s9,. 13th Congress, 3rd steexntt otof thhaev eS upprrienmteed Cino utrhte d eRcEiCsOioRnD atnhde
3 Annals of Congress, 11th Congress, 1st 30 Annals of Congress, 11th Congress, 3rd the dissents to which I have referred.
sess., 39-40, 48. sess., 346-347. There being no objection, the material
•Clay to Monroe, November 13, 1810, in 31 Hunt, Writings of James Madison, Vol. was ordered to be printed in the RECORD,
James F. Hopkins, ed., The Papers of Henry VIII, 327-332. as follows:
Clay (Lexington: University of Kentucky 3~ Annals of Congress, 14th Congress, 1st
Press, 1959), Vol. 1, 498. sess., 267. SUPREME COURT OF THE UNITED STATES
of 6 ACmleemriecnatn EPaotolinti,c sH e(Bnroys tConla: yL aitntlde ,t hBer oAwrnt a:ia. NIbilieds. , W18e5e.k ly Register, July 20, 1816, 339- Syllabus: Covm. mMonownteaanlath eEt daisl.o n Co. et al.
and Company, 1957), 22-23. 341. APPEAL FROM THE SUPREME COURT OF MONTANA
11 Mary P. Follett, The Speaker of the House No. 80-581. Argued March 30, 1981-Decided
of Representatives (New York: Longmans, ORDER OF PROCEDURE July 2, 1981
Gr7e Jeanm aensd SCteormlipnagn yY, o1u8n9g6, ),T 7h9e. Washington Mr. ROBERT C. BYRD. Mr. Presi tonM oonft acnoaa. li mmpionseeds ai.n s etvheer aSntcaet et,a xi nocnlu edaincgh
Community 1800-1828 (New York: Columbia. dent, I yield to Mr. BA ucus such time as coal mined on federal land. The tax is levied
University Press, 1968), 132. he may require, from the time under my at varying rates dependin~ on the value,
8 Ibid., 87-109; see also Perry M. Goldman control. energy content, and method of extraction of
and James Sterling Young, eds., The United Mr. BAUCUS. I thank the minority the coal, and may equal, at a maximum, 30
States Congressional Directories, 1789-1840 leader. percent of the "contract sales price." Ap
(New York: Columbia University Press, 1973). pellants. certain Montana coal producers and
9 Mary A. Giunta, "The Public Life of Wil 11 of their out-of-state utmty company cus
liam Branch Giles, Republican, 1790-1815" COAL SEVERANCE TAX tomers, sought refunds, in a. Montana state
1(P98h0. ), Da.p pdeinsdseixrt aotnio end, ucCaattihoonl ilce veUlsn iovfe rCsoitny , Mr. BAUCUS. Mr. President, Montan caonudr td, eocfl asreavtoerrayn caen dta xinejsu pnacitdiv ue nrdeelire fp, roctoens t
gress. ans were pleased and reassured this past tending that the tax was invalid under the
10 Alexander B. Lacy, Jr., "Jefferson and week with the U.S. Supreme Court rul~ Commerce and Supremacy Clauses of the
Congress: Congressional Method and Poli tics, ing upholding Montana's coal severance United States Constitution. Without receiv
1801-1805" (Ph. D. dissertation, University of tax. The Court made it clear, once and ing any evidence, the trial court upheld the
Virginia., 1964), 206-210. fur all, that there are no constitutional tax, and the Montana Supreme Court
11 Thomas Hart Benton, Thirty Years View objections that can legitimately be raised amrmed.
(New York: D. Appleton and Company, 1883), against the tax. Held:
Vol. 1, 682-683.
In doing so, the Court found that the 1. The Montana severance tax does not
Gi1l2e Gs"i,u 1n3t7a. , "Public Life of William Branch tax does not discriminate against out violate the Commerce Clause. Pp. 3-18.
11 Annals of Congress, 10th Congress, 2nd of-State customers. Equally important, fro(ma.) CAo smtamteer sceev eCrlaanucsee tascxr iust innoyt ibmym au ncliaziemd
sess., 305. the Court upheld the power of Mon
that the tax is imposed on goods prior to
u Gerald H. Clarfield, Timothy Pickering tana-and all other States-to tax nat their entry into the stream of interstate
and the American Republic (Pittsburgh: ural resource extraction within their commerce. Any contrary statements in
University of Pittsburgh Press, 1980) , 247; borders. Heisler v. Thomas Colliery Co., 260 U.S. 245,
6A5n-n6a6.l s of Congress, 11th Congress • 3rd sess. • As I have said on the fioor of the Sen and its progeny are disapproved. The Mon
ate before, Montanans are willing to tana tax must be evaluated under the test
gBseirns1a1s1i na.A,c nhan 5nGa3dl2i.sl -e 5tso4h:f1 e A; C NSonDtaugtirdicoeeysn si n, Af r1tonh1dmeteh rP s1Coo7lno9it,n0i cg srtWe oos isfl ,l1 Via81i3mrs0 t ictnioo nnat 'rsti ibemuneteelrv gt yoa nptrdhe edr eircaeassmoonleuantbitlo.e nW foaef s whtiihollin sd. oNW saoe sBadeportape dslfi yoen,dro t4 th3 to 0oit !nUe an.CSnd. o tm2ah7cpe4tl ,ie Cv2tioe7tm y9,A mwuwethriotce herT e Crbaaly en .sasuu istsbe,t siaItfnta einct .t t "iaavixs.l
(Gloucester, Massachusetts: Peter Smith, will not unnecessarily impede, obstruct, nexus with the taxing State, is fairly ap
1965, 1914). 155. or harass legitimate coal development. portioned, does not discriminate against
199111. Smelser, The Democratic Republic , 192- We will act responsibly. interstate commerce, and is fairly related to
At the same time, it must be empha services provided by the State." Pp. 3-6.
17 Annals of Congress, 12th Congress, 1st sized that Montana will not serve as a (b) Montana's tax comports with the re
sess., 44. resource colony. The State has a his quirements of the Complete Auto Transit
18 Ga.1llard Hunt, The Writings of James tory-well remembered by my genera test. The tax is not invalid under the third
Madison (New York: G. P. Putnam's Sons, tion of Montanans. The natural resource prong of the test on the alleged ground that
1908) , Vol. VIII, 192-201. bounty of Montana was plundered again it discriminates against interstate commerce
19 Giunta, "The Public Life o! William and again with littl.e concern for the because 90 percent of Montana. coal ts
Branch Giles," 154-160; i::ee <iJi::o r.e1ancl. .T ohn shipped to other States under contracts that
son, "The Suspense Was Hell: The Senate stability and future of the area. shift the tax burden primarily to non-Mon
Vote for War in 1812," Indiana Magazine of Too often, the result was impoverished tana utmty companies and thus to citizens
History, 65 (December 1969). families, disintegrated neighborhoods, of other States. There ls no real discrlmina-