Remarks of the Hon. James E. Tierney
Former Attorney General of Maine
Historian of the Maine 2020 Electoral College
December 14, 2020
James Tierney is a graduate of Brunswick High School, the University of Maine and the University of Maine School of Law. He served in the Maine House of Representatives from 1972 to 1980 where he joined with future Maine Supreme Court Justice Robert Clifford, future Maine Attorney General Michael Carpenter and future United States Senator Olympia Snowe in drafting the amendment to the Maine Constitution that abolished the Executive Council.
In his last two terms Tierney was the House Majority Leader, a position to which he was elected at the age of 29, and then served as the Attorney General of Maine for ten years from 1980 to 1990.
Since leaving office, Tierney has worked nationally with attorneys general of both political parties most notably in the tobacco cases of the late 1990’s. He has served as a Special Prosecutor in Pennsylvania, Minnesota and Vermont and in 2000 was Special Counsel to the Attorney General of Florida in the matter of Bush v. Gore.
Since the Fall of 2000, Tierney has taught law at Columbia Law School, where he was named Public Interest Professor of the Year, Yale Law School and for the last ten years at Harvard Law School where he is currently a Lecturer in Law.
Tierney has five children and eight grandchildren. He is married to novelist Elizabeth Strout. They live in Brunswick.
Welcome to this historic moment
In a few minutes we will watch Maine’s four electors ratify the voting decisions made by more than 820,000 of our fellow citizens. All of our votes were counted here in Maine and the results certified by our Secretary of State. They represent who we in Maine believe should be our President.
Article Two of the United States Constitution and Maine law requires our electors to follow these certified voting results. Two electors will vote for the candidate who received the most votes statewide, and two electors will vote for the candidate who carried their congressional district.
There is no suspense in how these electors will vote.
At this very moment this process is being followed all over our country.
Our 800, 000 voters are part of the160 million Americans voted in 2020. We watched them standing in lines or sitting in wheelchairs; some wearing masks and some not, voting from a car windows or into a drop box; sitting at home or walking into a polling place.
And we – all of us – have fulfilled our constitutional task. We have done our duty and with a record turn out.
Congratulations to us all.
How did it come to pass?
In 1776, we had broken the ties that bound us to Great Britain with a ringing Declaration of Independence that promised “all men are created equal,” and we had fought a bloody war.
But our leaders soon learned that the Articles of Confederation didn’t provide us the central governance we needed to survive.
And so in the hot summer of 1787 – ten years after the Revolutionary War ended – each state sent an all male delegation to Philadelphia. All told there were about fifty delegates and their job was to figure out what to do.
These delegates were state leaders but they were hardly the saints or seers that some historians, academics, judges and politicians now make them out to be. They reflected the values of their day, and so many owned slaves.
Most worked hard. The came together everyday. They argued. They broke into factions. They regrouped.
There were no phones or emails or texts to allow the delegates to keep track of the rest of their lives so the distractions were few.
And because the delegates were pledged to secrecy, they had only themselves to help figure it all out.
And they had to do it with two of their best thinkers. John Adams and Thomas Jefferson were not in Philadelphia because they were in Europe where both were serving as our Ambassadors.
The task was to craft a document – a piece of paper, really – that would somehow be hard to change and yet would govern a nation forever.
And they knew from the beginning that no one would leave Philadelphia completely satisfied.
And it is no easy task to write a Constitution.
The Delegates soon found they were bound together by two seemingly conflicting principles.
The first was the need to create a stronger central government.
The second was the need to constitutionalize America’s aversion to a concentration of government power.
They quickly decided that the only way they could do both was if the federal government was chosen by a system of state elections, and not by a dominant national one.
They wanted government authority diffused.
What they produced was not a particularly egalitarian document.
The Supreme Court is not egalitarian.
The provisions that made it possible for human beings to be bought and sold as property was not egalitarian.
That women could not vote was totally incomprehensible.
And the United States Senate was and still is wildly unrepresentative of the majority of American voters.
They left to the end how to chose a President.
They didn’t know what they wanted, but they did know what they didn’t want.
They did not want a Prime Minister who was a member of Congress.
And they did not want someone to be elected directly by the entire country because their fear of a potential dictator or demagogue who would undo what they had fought to achieve in the Revolutionary War.
So they designed the process we are following today even though they knew it had serious problems.
Alexander Hamilton was a delegate to the Convention as well as a future Broadway star, and he was the Electoral College’s most ardent defender, yet even he wrote “If the manner of it be not perfect, it is at least excellent.”
James Madison, another delegate who would be our 4th President, was more realistic. He said that Article II “had the fewest disadvantages.”
Thomas Jefferson – who became a master of the Electoral College as he ran for President three times – would refer to it later as “the most dangerous blot in our constitutional system.”
Be that as it may, the system that the delegates devised– only amended once in the 12th Amend – continues and we follow it, probably forever.
In the short term, the delegates weren’t particularly worried.
They knew the first President would be George Washington. He sat with them everyday, was a 6 ‘ 4,” a natural leader from Virginia and the owner of 200 slaves.
So they went home leaving us with a state based system where electors are not allowed to use their own judgment.
As one Federalist leader said of a “faithless elector” in 1800, “I chose him to act, not to think.”
In the end it was the preferences of the states that mattered. Then, as now, it was not a national popular vote.
We would be the United States of America.
This Presidential selection process has always been a scary proposition.
“A time bomb lodged near the heart of the nation…..” according to James Michener a Pulitzer Prize winning author and an elector from Pennsylvania before he moved to Brunswick.
“A time bomb lodged near the heart of the nation…..”
I want to talk a little about our second President, John Adams.
Long before he was President, Adams was a young trial lawyer, newly married and living on a farm and in Boston, which is city in Massachusetts that as we all know was for a time a part of Maine before we so wisely set it adrift to fend for itself.
To make a living Adams rode the legal circuit and tried many cases – defending criminals and doing divorces and boundary disputes.
In 1764 he came to Maine to the Pownalborough Court House just a few miles from us here on the Kennebec River in the Town of Dresden.
He evidently didn’t know about mud season in Maine and he made the mistake of coming to Dresden from Portland by horse instead of by boat.
He later wrote that he traveled through “an entire wilderness…encumbered with the greatest number of trees, of the largest size, the tallest height, I have ever seen.”
He was in constant fear his horse would break a leg and he would have to walk.
Adams won his case, but he never returned to Dresden.
(The Court House still looks the same and is one of my very favorite quiet places in Maine. Don’t miss visiting the small cemetery up the dirt path. There you will find the grave of Lt. Charles Goodwin who at the age of 25 was killed at the Battle of Antietam fighting for the Union on September 17, 1862. You cannot help but be moved.)
Adams continued to come to Maine and his last visit occurred in the summer of 1774.
Adam’s best friend was Jonathan Sewall, then the Attorney General of Massachusetts appointed by the Royal Governor. They had been college classmates at the school where I now teach.
On a July morning, Sewall and Adams climbed Munjoy Hill where they sat and talked for hours overlooking Casco Bay.
Sewall was a Tory and he begged Adams to give up the patriot cause. He offered him a badly needed job, and he told Adams that England would win any war and that he, Adams , would be found guilty of treason and be hanged.
But Adams would not change. “That die was now cast,” he later wrote. “I had passed the Rubicon; swim or sink, live or die, survive or perish with my country, was my unalterable determination.”
Their parting was painful, and as Adams wrote, “this adieu is the sharpest thorn on which I ever set my foot.”
And so Sewall fled to England, and 39 year old Adams went on to serve in the Continental Congress. There he sat in the same rooms with the young Thomas Jefferson under the watchful eye of the aging Benjamin Franklin as they drafted and redrafted, line by line, the Declaration of Independence.
As Jefferson later wrote there was “No better man than Mr. John Adams…
And further, he wrote that Adams did not quietly support the Declaration but fought “fearlessly for every word.”
In 1784, Adams and Jefferson were in Paris where they worked together everyday to negotiate the end of the Revolutionary War, and in 1787 they were together in London to help negotiate badly needed commercial treaties.
Abigail Adams had joined her husband with their youngest children, and the widowed Jefferson had brought over his children who were then mothered by Abigail.
They were as close as two men could be and they held family secrets in complete confidence.
In 1796, John Adams was elected as our second President defeating his then friend, Thomas Jefferson, but just three electoral votes.
Jefferson then became Vice President and differences soon led to a bitter split. There were many reasons – too many to recount – but at the core Jefferson was a man of the South who owned 200 slaves and opposed a strong federal government
And John Adams was the opposite.
In 1800 they ran against each again other again.
By this time the friendship was gone. Each abandoned long held principles and fought to win. It was bare knuckle politics.
Adams wrote then of his former friend Jefferson that “I know he has Integrity, but his mind is now poisoned with passion, prejudice and faction…. He is as ambitious as Olive Cromwell,”
It was the bitterest of campaigns – rivaling the one we just experienced.
When it was all over, Adams had lost.
And he was bitter. He believed it was stolen. He believed there was fraud. He believed money had changed hands. He felt personally betrayed.
And in his anger he worked till midnight in that last night in the White House – that house built by slaves where he was the first resident – appointing Judges right up to the last minute.
Yet at 4:00 AM on Wednesday, March 4, 1801, 65 year old John Adams walked out of the White House for the last time. He looked back to see it illuminated by candlelight and under a clear cold sky and a quarter moon, he left.
He stepped into a public stagecoach, and he left.
He certainly wasn’t going to go to Jefferson’s Inauguration
He left feeling a complete failure.
He had been a one term President who had accomplished so much for his country that he left at peace and on a strong financial footing, but on the day of his leaving the rejection by the voters of the country he loved was too much to bear.
He was still Commander in Chief. He could have ordered the militia into the streets to stop Jefferson’s inauguration.
But he didn’t.
In fact, it never occurred to him.
Because we had a Constitution.
And for the first time in the world, governmental power had been peacefully transferred because of an election.
And for the first time in the world, governmental power had been peacefully transferred because of an election.
So this is Electoral College we follow today. Even as we may disparage its very existence, we follow its rules.
In doing so we keep faith with160 million American who voted this year, but also we ratify the constitutional structure that gave us two Roosevelts and Abraham Lincoln.
And that gave us both Adams and Jefferson whose personal animosity is long forgotten as they remain among the most admired of our founding citizens.
Today, regardless of our personal choice for President, we should all rejoice in our right to engage in this collective decision.
Of course, half of us are hugely elated. And half of us are bitterly disappointed, just as John Adams was so bitterly disappointed 220 years ago.
But we are here.
We did it again.
And just as Adams kept on going, so shall we.
There are pundits now on both the right and the left who call for succession and claim there will be violence or civil war.
That is not true. That will not happen.
We may now feel now like we are in crisis, but we have faced more serious challenges.
You want to know about election violence? Perhaps the greatest risk of electoral violence in our country’s history occurred right here in this building!
In 1879, the incumbent Maine Governor was apparently defeated, but he began a closed door “recount” that threw out votes on technicalities in such as way as it appeared he might reverse the outcome of the election.
Huge rallies broke out in every Maine town and afraid for his safely and that of his government, on Christmas morning the Governor ordered armaments be sent from Bangor to Augusta, but a mob blocked the transfer at the Kenduskeag Stream Bridge. Trying again, they arrived here at the State House on December 30th and the Governor immediately used them to arm a paramilitary force that occupied every room on the second and third floors. He put guards with rifles and bayonets at every window in the very building we are in today.
He placed snipers on the balcony that surround the Rotunda!
The Governor’s opponents were led by U. S. Senator James Blaine who illegally ordered 300 armed civil war veterans to march from Bath to Augusta to drill on the lawn of his home, now the Blaine Mansion and home of our Governors.
This story captivated the country’s imagination and appeared in every national newspaper under banner headlines predicting a civil war in Maine. Thousands of voters on both sides held rallies and calls to violence appeared at all of them.
The Governor then did two things.
Under pressure, he asked the Maine Supreme Court to review the election and decide who really won. He called for the rule of law.
And then he asked Civil War hero and former Governor Joshua Chamberlain to come to this building – to our State House – and establish martial law.
Chamberlain arrived on January 7, 1880. He cleared the building of the paramilitaries in just half an hour, refused Blaine’s request to activate the militia, sent the munitions back to Bangor and the 300 Blaine ordered soldiers back to Bath. He stared down an armed mob that had threatened to kill him and a Sheriff who tried to arrest him, and soon there was a Gatling gun in the Hall of Flags.
And significantly, he turned down offers from both sides of a seat in the U. S. Senate – a job he desperately wanted – seeing it as a clear attempt to subvert the rule of law.
Chamberlain waited twelve long days in this building for the Court’s ruling. He would not depart from his conviction that it would be the law, and not threats and intimidation, that would ultimately prevail.
When the Court decision finally came, the Governor lost and went back to Lewiston. The new Governor came down from Corinth.
And Joshua Chamberlain went home to Brunswick having kept the peace by adhering to the letter of the Constitution and the law. In showing this commitment he ended his own political life.
Chamberlain would never again serve in a public role, but he late called his work on that cold January in 1880 “by far the greatest public service (I) have ever rendered.”
His “greatest public service” was not the courage he showed at Gettysburg battling those who would destroy our country so that they could continue to buy and sell human beings.
His “greatest public service” was his adherence to the rule of law.
Today, when everyone else has now been forgotten, it is Joshua Chamberlain who lives on in our state’s history as our most honored citizen.
In times of stress – times like those of Adams or Chamberlain or now – our governmental institutions hold.
I believe that this is true because we as Americans cherish the rule of law.
I believe that at our core still cherish each other, and that we adhere to our Constitution no matter how flawed and unfair and outdated it sometimes seems to be.
You see, our Constitution is not a document. It is a way of believing. It is a way of living.
It is a structure that allows men and women to rise up in personal safety and without fear to “secure the blessings of liberty to ourselves and our posterity.”
Our Constitution is in our hearts and while it lives there, our Union will continue. If it ever dies there, no judge or President or Army can save us
Let me close by turning to another son of Maine.
Henry Wadsworth Longfellow was both in Portland in 1807. His grandfather and his father were both members of Congress and just like the four of you, were Presidential Electors.
But Henry was not to be a General or a lawyer,
He was a poet.
He was also an abolitionist and a patriot who found the words then that resonated then and resonate now.
Thou, too, sail on, O Ship of State!
Sail on, O Union, strong and great!
Humanity with all its fears,
With all the hopes of future years,
Is hanging breathless on thy fate!
Thank you very much.