The objections of the governor notwithstanding

Jay Nixon has been the legislature’s favorite punching bag for most of his eight years in office. And the legislature has delivered some farewell belts in this year’s veto session.  Whatever legacy Nixon might claim in December or January after his eight years in office, his legacy as the most overridden governor in Missouri History will be large.

Several causes can be attributed to that record, not the least of which is that the legislature is two-thirds-plus in both chambers Republican and Nixon is a Democrat who talks as if he gets along well with the other side while the other side says he’s been aloof and uncommunicative.

The first veto overridden in Missouri was in 1820 when our first Governor, Alexander McNair, vetoed the bill establishing the compensation of members of the legislature.

Until Jay Nixon, whose override total will be in the 90s by the time the legislature is done with him, the override champion was Daniel Dunklin, who served in the 1830s.  In those days, the legislature granted divorces.  And overrides could happen by simple majorities in each chamber.  The 1875 Constitution established the two-third vote for overrides.

Understand that divorce in those days was hard to get.  In fact, divorce didn’t become a matter for the courts exclusively to handle until 1853.  A lot of women just packed up and went somewhere else rather than try to get a divorce, a divorce being something of a family disgrace in those days anyway.  A woman—or a man–who could not afford, financially or socially, to get a court-ordered divorce, sometimes asked the legislature to grant one.

But Dunklin wasn’t sure the legislature had the power to grant divorces.  He vetoed a dozen bills granting divorces including one that granted thirty-five of them.

His message of January 5, 1833 explaining to the Senate why he vetoed a bill granting Mary Ann (Lawrence) Dunlap a divorce from husband David, says he did so for two important reasons:

one the Constitutionality, the other the expediency of a bill to grant a divorce by the Legislature. Can the Legislature constitutionally exercise the power claimed to pass this bill? If it can, then is it expedient to engage in this species of Legislation? I will make but one remark as to the expediency. When parties are divorced by the Legislature, it is valid only in the State granting it. When divorced by the Court, it is valid in every State in the Union…With this remark, I will dismiss the question of expediency; and however opposed I may be to the practice of legislating in such cases, I would not withhold my assent to this bill, were there no Constitutional objections.

Dunklin was concerned that legislatively-granted divorces infringed on the constitutional separation of powers.

To which of the departments does it “properly belong” to exercise the power to grant this divorce? If to the Legislative, then the Judicial cannot exercise the power, if to the Judicial, then the Legislative cannot exercise it. Before I proceed to answer the question, let me remark, that the Legislature is not asked to reinstate a right forfeited to the government; nor to remove a disability created by the government; but to absolve one of the parties from obligation to perform certain duties, (such as continence and kindness), contracted by previous marriage—Then I ask, to which of the departments of government, does it “properly belong,” to exercise the power to grant this divorce?

Marriage, he noted, is a civil contract that carries certain obligations.  But he argued the obligations were not only a matter between the two parties who entered into the contract. But Dunklin noted that the public also has an interest in the benefits that results from contracts, a circumstance that involved the political as well as the legal branch of government.  Therefore, was the political arm of government entitled to take jurisdiction because “of the nature of the contract itself?”

If, he argued, a marriage contract is a matter of “law or equity,” the powers to grand divorces lay with the courts, not the legislature.

Dunklin dug into the laws of other states.  And what he found is interesting in today’s divorce climate as well as the diversity of attitudes that existed in his time.  In Georgia, Alabama, and Mississippi, the process was bifurcated.  The judicial departments settled the facts, then the legislature decided whether those facts were sufficient to grant a divorce.  In colonial Massachusetts and New Hampshire, the early constitutions gave the power to the governors and the legislative councils although that was later changed giving the power to the judiciary. Dunklin found five states with constitutional provisions addressing the issue.  Only Virginia and Maryland had the power specifically assigned to the legislatures although the courts had the authority to rule on the legality of marriages.  In the other seventeen states, the judiciary had powers over divorces and in fourteen of those seventeen states, that authority rested exclusively with the judiciary.  Only Missouri, Illinois and Kentucky had the confusing judicial/legislative question.

Dunklin concluded:

Here is great weight of authority shewing that the power to grant divorces, ought to belong to the courts of law; yet, it does not conclusively prove, at least to my mind, that the power could not, consistently with the nature of the contract, be exercised by the Legislature. Then, why withhold my approval of this bill?—It is because every branch of this government has concurred in assigning the power to grant divorces to the Judiciary…But it may be said that it is as reasonable to question the constitutionality of that law as the constitutionality of this bill. To prove that law unconstitutional, will require it to be shown that the marital right is exclusively political, and that the Legislature has the exclusive right to exercise powers over it. The only authority for such an opinion, that has fallen in my way is the practice of the States of Virginia and Maryland, while the practice of the other twenty-two States is directly to the contrary. Were it not for the law “concerning divorces and alimony,” I should have no constitutional objection to approving this bill. But if that law be constitutional (and I believe it to be so) then it is incompatible with my duty, according to my construction of the 2d Article of the Constitution of this State to approve this bill. It is therefore returned to the Senate, where it originated.

Governors who veto bills outline their reasons in veto messages like this one, as Governor Nixon did with the bills or parts of bills he vetoed this year.  And the legislature in 2016, has done to several of those vetoed bills what the legislature did in 1833.  It has overridden the vetoes, “the objections of the governor notwithstanding.”  Mary Ann and David Lawrence split.

Echoes of Dunklin’s investigation into marriage and the state’s place in determining what obligations there are in a marriage, in fact what marriage IS, are still being heard in various forms in today’s legislature. And differences of opinion remain between the governor and the legislature.

Governor Dunklin’s record as the most overridden governor in Missouri history stood for almost 180 years. We wonder if some scribe in the year 2196 will write about Jay Nixon the way we have written about Daniel Dunklin.

One hundred and eighty years.  Now, THAT’S a legacy.

Let me know what you think......