I have been studying and writing about Roman emperors for more than 30 years. I never imagined I would live in a time and place where the judicial system might give more extensive legal immunity to an American president than any Roman emperor ever enjoyed. Until last Thursday.

Contemporary imagination often assumes that Roman emperors enjoyed absolute authority to do what they wanted with their empire’s resources, wealth, and military power. They did not. Rather, Roman emperors were magistrates who held office for life, managing the Roman state on behalf of its citizens. This position gave emperors vast powers to initiate wars, choose administrators, appoint generals, order criminal investigations, and take the property and lives of convicted criminals. But, like their fellow citizens, Roman emperors were subject to Roman law.

Emperors themselves said so. In 429 C.E., the emperors Theodosius II and Valentinian III explained that “a reigning sovereign must be subject to the laws because our authority is dependent upon that of the law and it is the greatest attribute of imperial power for the sovereign to be subject to the laws.” It is only by accepting that laws apply to every Roman, the emperors continued, that we are able to “forbid others to do what we do not suffer ourselves to do.” In other words, an emperor claiming an exemption from Roman law had no right to expect his fellow citizens to obey those same laws.

A few decades later, Priscus of Panium, a Roman official and rhetorician who served as an ambassador to the court of Attila the Hun, explained to an acquaintance he calls Graikos why Roman legal procedures must apply equally to everyone. Graikos had once lived in Roman territory but had chosen to live among the Huns. He told Priscus he preferred the Hunnic empire, where, unlike in Rome, Attila limited corruption, did not assess high taxes, and presided over a people who did not trouble one another. True, the brutal barbarian king could do what he wanted to anyone. But Graikos still believed this was better than Rome, where “lawsuits are much protracted, much money is spent on them,” and everyone is distracted from doing what they want by concerns of when or even whether a legal penalty will be enforced.

Priscus corrected Graikos sharply. “Those who founded the Roman state,” he said, “ordained wise and good men to be guardians of the laws so that things should not be done haphazardly.” In Rome, “the laws apply to all, even the emperor obeys them,” and “the time taken in cases results from a concern for justice lest a judge err in his decisions.” Under Attila, by contrast, “one must give thanks to Fortune for freedom.” In a society without laws, Priscus asserted, your life and property are protected only by fate and the whims of Attila. Realizing his mistake, Graikos “wept and said that the laws were fair and the Roman state was good.”

It is, then, astonishing to read the April 25 transcript of the Supreme Court’s oral arguments in Donald J. Trump v. United States. The day began with Donald Trump’s lawyer, D. John Sauer, boldly asserting, “Without presidential immunity from criminal prosecution, there can be no presidency as we know it.”

As the proceedings continued, the exchanges became increasingly shocking. At one point, Justice Sonia Sotomayor asked what would happen if the president “orders the military” to assassinate a political rival. In response, Sauer claimed that such an order “could well be an official act” and thus render the president immune from prosecution. Then, near the hearing’s conclusion, Justice Samuel Alito took on an incredulous tone as he asked the government’s lawyer, “If [the president] makes a mistake, he makes a mistake; he’s subject to the criminal laws just like everyone else?”

Any serious Roman jurist would know how to answer Alito’s question. They would respond as the 10th century bishop Nicholas of Constantinople did to the emperor Leo VI when he tried to get married illegally: “It is evil, a most evil doctrine to say that, because one is an emperor he is permitted to do wrong in a way that no one would permit his subjects to do.” Romans knew that even the limited liberty permitted by their autocracy depended on every citizen, regardless of their station, being equally subject to the protections and restrictions of a common legal system. To assert otherwise would be to leave the Roman world of law and enter the unpredictable, anarchic kingdoms led by people like Attila the Hun.

Alito is, without a doubt, a finer legal scholar than I am. But he is not a finer legal scholar than Tribonian or Papinian or many of the thousands of other jurists who taught and wrote about a tradition of Roman legal scholarship that stretched across nearly 2,000 years. These wise men refused to grant the powers to an emperor that Alito and Sauer seem to want to grant to an elected president. Maybe our Supreme Court could learn something from reading their work.

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He was in love with his close friend’s wife. He was called an ingrate by his commander. He was accused of being a war criminal, a murderer, an incompetent leader, and an international embarrassment.

What is truly remarkable about the 20-something Washington, however, is not that he struggled and stumbled and made some terrible mistakes. It is how profoundly he learned from them. Washington’s arc of transformation from self-centered youth to selfless leader offers an example to us all.

Washington’s father, Gus, a Virginia tobacco planter and slaveholder of middling status, died when George was 11. Gus left the bulk of his plantation lands to George’s older half-brothers, thus leaving the young Washington without a way to make a living. After his mother emphatically rejected his request to go to sea at age 14, he took up surveying. This was fortunate. Under the mentorship of the aristocratic Fairfax family, the teenage Washington was soon surveying Virginia’s frontier, making good money, and buying his own land there.

Ambitious and eager to climb in the Virginia aristocracy, Washington took a part-time officer’s post in the Virginia colonial military and volunteered to cross the wintry Appalachian Mountains into the Ohio Valley wilderness when he was 21. His mission was to carry a message from Virginia’s British governor to the commandant of a French fort deep in the forest. It said, in essence: Stay out! These lands belong to King George! This launched the young Washington on a series of harrowing adventures in the Ohio wilderness that nearly killed him. At one point he tumbled off a makeshift log raft into a half-frozen river. The real trouble began, however, after Washington delivered the French commandant’s reply to the Virginia governor. The commandant politely but firmly declined to leave.

The indignant Virginia governor dispatched Washington back into the wilds at the head of a small military party, but warned him to be cautious and avoid being the aggressor. Washington did the opposite. He ambushed a small French party while they were breakfasting at dawn. Then one of Washington’s Indian allies tomahawked open the skull of the French officer in charge. It turned out the party Washington attacked was a French diplomatic detail—or so its members claimed—trying to deliver a message to the British.

Instead of retreating and reconsidering at this point, or engaging diplomatically, Washington, eager and cocksure, pushed ahead. He bragged that he enjoyed hearing bullets whistle and that he would drive the French back to Montreal. He built a flimsy stockade named Fort Necessity and made a stand against the French and their Indian allies.

It was a disaster—his troops were slaughtered, with about 100, or one-third of them, killed or wounded. Washington was forced to surrender, but it was too late. With his mistakes in 1754, he had personally ignited the French and Indian War, which would spread to Europe and, known there as the Seven Years’ War, last until 1763.

Surprisingly, this did not end his military career. Remarkably brave in battle, he was eventually named commander of Virginia’s provincial troops in that war when he was 23. Washington was responsible for protecting Virginia’s frontier settler families from Indian and French raiding parties. Initially, he seemed largely focused on himself—his “honor,” his reputation—and driven by pride. He tried to strike up a personal correspondence with Sally Fairfax, with whom he was infatuated, the charming wife of his good friend George William Fairfax. He began to see himself as an actor on a grand stage, and Sally as a willing audience. Thin-skinned, he quit or threatened to quit at least seven times as a Virginia officer—over too little pay, jealousy toward higher-ranking officers, newspaper criticism.

Civilian friends warned him if he quit then, in the middle of the war, that he truly would sully his reputation. He deeply coveted a British Royal Army officer’s commission—a prestigious “King’s” commission instead of a colonial one—but, to his lasting bitterness, Royal Army commanders rebuffed his many requests. His emotional neediness was pitiful at times. Pouting when he didn’t receive letters from friends back home, he complained to his commander that there must be something wrong with the military mail system. In fact, his friends had not written him.

Amid the trauma of war, however, his emotional focus began to widen. He showed an evolving sense of empathy toward others, first toward the colonial troops under his command as they died, undersupplied, in mud-and-blood-filled trenches, then toward the Virginia frontier settlers he was charged with defending. Families were kidnapped and scalped and butchered in Indian raids. Settlers came begging him to save them.

He often felt powerless to protect these people. Yet Washington was dogged and fearless and calm in the face of danger. He began to listen closely to his officers, carefully weighing their advice and moderating his impetuousness. Surviving numerous close calls in battle that left bullet holes through his clothing, he felt miraculously spared. He came to believe that “Providence” had a greater role for him.

After British forces finally dislodged the French, Washington emerged from the Ohio wilderness in late 1758 at age 26. He had recently written an impassioned letter to Sally Fairfax, who did not return the sentiment. Within a few weeks of his emergence he married the wealthy widow Martha Custis, settling down to the life of a prosperous planter and family man. Besides financial security, Martha probably offered him the intimate emotional reassurance that he had lacked during those years thrashing through the Ohio wilderness, trying to make a name. (We’ll never know for sure because she burned their correspondence.)

Almost two decades later, in the spring of 1775, Washington attended the Continental Congress in Philadelphia as a delegate for Virginia. Still tall and powerfully built at age 43, he wore a resplendent blue-and-buff uniform of his own design. He projected an aura of modesty, dignity, and strength. By then he had learned how to carry himself in the world, how to engender loyalty and trust, how to seize opportunity yet also care for others. In other words, he had learned how to lead.

The Continental Congress needed a commander for its new army to march against British troops in Boston. Washington possessed far more military experience than anyone in the room due to his role—checkered though it may have been—in the French and Indian War. John Adams rose to speak favorably of him. Washington was nominated. Delegates voted. It was unanimous. George Washington would be the first commander in chief of the Continental Army of the United Colonies. In so many ways, it was a destiny of his own making.

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If all this is correct, then it means that at some point the United States will have its first post-imperial president. So it’s worth asking: What would such a presidency look like? And by what criteria would we know that a future president was really post-imperial?

The foundation stone of the U.S. empire is a belief in American exceptionalism. This nation, it is argued, is not like other imperial powers that have acted selfishly and amorally—or even immorally—abroad in pursuit of the national interest. Since it took lands from European, Latin American, and Indian nations, the United States has portrayed itself as a “force for good” that is driven by different motives in its foreign interventions than those of other great powers. Thus, U.S. presidents since World War II have always preferred to talk of America as a “leader” or as “indispensable” rather than refer to it as an empire.

A post-imperial president would therefore have to accept that the United States is no longer exceptional, that its actions in other parts of the world have not been significantly different from those of other imperial powers in the past, and that its motives have been venal on many occasions. These views resonate with a majority of millennials today, and with a large number of older voters as well, but no president so far has been willing to articulate them.

And this political challenge would be only the first of the problems facing a post-imperial president. It’s true that the territories of the American empire have shrunk significantly—either by absorbing them into the United States as states, or by granting them independence, leaving Puerto Rico as the largest of those that remain. In spite of this, the semi-global empire constructed after World War II still remains in place. And the basis for this empire, now increasingly questioned inside and outside the United States, has been the control of global and regional institutions, coupled with strong support from non-state actors such as multinational companies, think-tanks, philanthropic foundations, the media, and religious organizations.

Most of these global and regional institutions are still in existence—including the United Nations Security Council, where the United States has a de jure veto; the World Bank and the International Monetary Fund, in both of which the United States has a de facto veto by virtue of the size of its shareholding; the World Trade Organization, the agenda of which the United States controlled until recently; and the North Atlantic Treaty Organization, of which the United States remains overwhelmingly the dominant member. There are also regional bodies such as the Organization of American States and the Inter-American Development Bank, in which the United States maintains a predominant role with a de facto veto.

Yet other countries increasingly resent the in-built advantages enjoyed by the United States. In some cases, nations, notably China, are taking steps to build alternative organizations. A post-imperial America would have to accept a loss of privilege and therefore a reduced status. At the very least this would require the dilution of its veto in the Security Council by all five permanent members—if not its abolition—as well as acceptance of the loss of a veto in other global institutions.

The United States’ role in NATO would also have to be reconsidered—if not ended. This organization, designed for security in the North Atlantic region during the Cold War, has become an instrument to project power globally. Complemented by nearly 800 U.S. military bases, NATO in its present form is wholly inconsistent with a post-imperial role for the United States. Furthermore, its members have become skilled at dragging the United States into their own conflicts, knowing that only the United States has the military power to make threats credible.

By contrast, a post-imperial president would not necessarily need to abandon nuclear weapons, since the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) “only” requires nuclear weapons states to phase them out without a deadline being imposed. If and when other nuclear-armed states move towards ending their current monopoly, however, a post-imperial president would need to move in the same direction.

Finally, a post-imperial president would need to ensure that the United States participate in those global organizations and treaties of which it is not currently a member on an equal basis to other states. This would include all environmental organizations concerned with tackling climate change as well as bodies concerned with international human rights and international justice. Congress would also be required finally to ratify those treaties that have remained “unperfected” for many years, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) signed by President Carter (1977-81) in 1980 and still not ratified after nearly 40 years because of its strong defence of reproductive rights.

No administration since World War II has come anywhere close to meeting these criteria for the first post-imperial presidency. And it would have been completely unrealistic to expect them to do so while the U.S. empire was in its ascendancy. Indeed, President Bill Clinton was quite explicit that the “unipolar” moment provided by the end of the Cold War created an opportunity for the United States to rewrite the rules of international politics so that it would be comfortable living in a world in which it was no longer hegemonic. President George W. Bush was equally forthright if less articulate about this.

Barack Obama is the first who could seriously be considered for the role of a post-imperial president. He pushed the United States to participate fully in a number of organizations and treaties in which it did not have special privileges (notably the Treaty of Paris on climate change). He was also clearly preparing the ground for a time when the United States would have much less leverage in the world and wished to use his influence, as in the case of the nuclear agreement with Iran, to maximize its fading imperial power.

But Obama—despite some ambiguous statements at the beginning—ultimately proved to be a true believer in American exceptionalism, fiercely resisted a dilution of American institutional control, and remained firmly committed to expanding NATO under U.S. tutelage.

So far, Donald Trump may have come the closest to being the first post-imperial president when, during the campaign, he questioned the use of the word “exceptional” to describe the United States and subsequently put in doubt American commitment to NATO. Furthermore, his slogan “America First” has been interpreted by many as a sign that the nation is no longer willing to provide the global public goods in return for which it received broad support from its imperial vassals. However, his message of “Make America Great Again” has such a strong imperialist undercurrent that he could never be described as post-imperial.

The runners-up in all recent presidential contests have also been very much in the imperialist mode. John McCain (2008) was a traditional imperialist. Mitt Romney (2012) was more nuanced, but still undoubtedly an imperialist, while Hillary Clinton (2016) was quite explicit in support of American empire. Only in the primary contests have candidates emerged with the potential for the label “post-imperial.” The strongest such candidate has been Bernie Sanders, whose questioning of American exceptionalism in the Democratic primary contest in 2016 suggested that a post-imperial message is starting to resonate inside the United States.

Does this make a post-imperial president possible anytime soon? Much will depend on the performance of the world economy and America’s place within it. That China will overtake the United States as the world’s largest economy is not in doubt (China is already the largest in purchasing power parity). But the speed of U.S. decline, relative to China and other powers, will be important in determining how Americans themselves transition to post-imperialism. And if the U.S. economy becomes better at distributing income and wealth more equally to its citizens, there may be less reason for voters to question the current imperial status.

But with the empire so clearly in decline abroad, and the social fabric tearing at home, I would be very surprised if the United States reached the middle of this century without having elected its first post-imperial president. This president will need to manage imperial retreat while maintaining the optimism and confidence of the voters. This was the role played by Harold MacMillan in the United Kingdom, Charles de Gaulle in France, and—much less successfully—Mikhail Gorbachev in the Soviet Union. Who will step forward in the United States?

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I hadn’t thought much about that moment until February 2018, when I saw all three cable channels go “live” with “breaking news” from the same spot outside the White House. As I looked at the coverage of a scene that should have seemed familiar, all I could think about was how much has changed.

In today’s tableau, the White House grounds and the streets around them were swarming with Secret Service agents, in and out of uniform, bolstered by D.C. police. What seemed like dozens of official vehicles were either on the move or parked to block any incoming traffic. A fire engine had to be stopped at a gate with an armed guard gate until a bomb-sniffing dog could clear it to go through. With President Trump and the Prime Minister of Australia inside, the White House itself was locked down.

It soon became clear that the real story was not what caused all the action but the action itself. A “female driver,” familiar to law enforcement as “mentally challenged,” had been “apprehended immediately” after her vehicle struck a concrete barrier at 17th and E Streets, on the very outside of the anti-terrorism perimeter. The threat itself was no big deal. What the anchors and experts on cable news sets were talking about was the massive security infrastructure that had been deployed against the unlikely possibility that the threat turned out to be real.

Gerry and I encountered no such obstacles on that night long ago. We were students at Sidwell Friends, the elite prep school where the Obamas would send their children in a much different era. When we went there, Sidwell was segregated, and for us white kids visiting “Negro nightclubs” in downtown D.C. was an adventure. The minimum age to drink beer in the District was 18, and we looked old enough to get served. We didn’t spend much money, but owners and patrons indulged us for reasons of their own, and we were flattered.

On that fateful evening, Gerry and I went to the Rocket Room, where the band played rhythm and blues, the comedian told dirty jokes, and the stripper was almost maternal. We had a few brews, and then walked out onto New York Avenue.

Traffic was light, it was balmy and the air smelled good. For no particular reason, we began to walk toward the White House. We probably talked about school friends, sports, and national politics, which were inescapable at Sidwell Friends. I’m sure we did not talk about our fathers. Mine was Assistant Attorney General in charge of the Criminal Division of the United States Department of Justice. Gerry’s was Legal Advisor to the President.

It didn’t take long before those few beers asserted themselves on our bladders, and we needed a place to pee. Pennsylvania Avenue was still open to traffic in those days, and we crossed where it intersects both New York Avenue and 15th Street, creating the corner of the White House grounds. An occasional car rolled by. We were getting uncomfortable, as we proceeded down 15th and then through an open gate and on to the White House grounds. It was dark under the trees as we approached the fence that surrounded the South Lawn.

The need was urgent, and there was no point in delay. We approached the fence, unzipped, and leaned against the bars so that our streams of urine landed inside. There were no sirens, horns, or buzzers. No blazing lights or barking dogs. No shouts from uniformed guards or Secret Service agents. We walked back to the street and continued on our way.

I don’t think we were being truly rebellious. No doubt our parents would have been angry, as much about the beers and the Rocket Room as about our disrespect for presidential surroundings. Had we been stopped and identified, we probably weren’t significant enough to make The Washington Post. But the moment of teenage assertiveness was worth the risk and, after all, we needed to pee.

When we reached the sidewalk, Gerry said, “now you can tell your grandchildren you pissed on the White House lawn.” Of course, he was making a joke about false bravado in 1954. But, considering the scene played out on the cable news channels in 2018, it will take massive changes in both politics and society before anybody can ever do what we did again.

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Garrow shared some of his reasons for what he called his “huge disappointment” with the Obama presidency at a Zócalo/KCRW “Critical Thinking with Warren Olney” event, “How Did Barack Obama Create Himself?”.

Hosted by Olney, the longtime KCRW radio personality and dean of Los Angeles news broadcasters, the evening echoed many of the thematic lines—and withering criticisms—that surface in Garrow’s 1,400-page biography Rising Star: The Making of Barack Obama. “It’s worth reading,” Olney quipped, “but it takes a long time.” (Most reviewers agreed: The New York Times appraised Rising Star as “impressive if gratuitously snarly,” while Politico judged it to be “a masterwork of historical and journalistic research.”)

Published last spring, the book charts his subject’s transformation from a highly intelligent, rather aimless young man into a calculatingly ambitious politician who, according to Garrow, wore various masks at various life stages, walled off his emotions when it served his career goals, and remained an enigma even to friends and lovers.

“It has to be said that from at least 2001, 2002, Barack Obama has been first and foremost, fundamentally, a politician,” said Garrow, the author of well-regarded books on the Roe v. Wade Supreme Court case, the Civil Rights Movement, and the FBI. “There’s a very absolute compartmentalization that Barack imposes on his life, even as a 25-year-old.”

Garrow sketched out an abbreviated version of his book’s sometimes unflattering portrait of Obama, drawing applause and nodding assents, as well as occasional gasps and murmured objections, from the overflow audience.

Following Olney’s line of questioning, Garrow started out by discussing Obama’s high school and college career, his stint as a Chicago community organizer, and his youthful romantic life. Garrow faulted the future president for dumping Sheila Jager, the half-Dutch, half-Japanese woman with whom he lived for two years in the late 1980s, because Obama had made a determination that having a white wife would have been “a political non-starter” for a black politician in the Chicago of that time.

He said that Obama, born in Hawaii and raised with a “friendship network” of international students, only really began living among African Americans once he moved to Chicago and set his sights on a political career.

In Garrow’s view, Exhibit A in the saga of how Obama selectively re-invented himself is his 1995 best-selling memoir, Dreams From My Father, a reflection on his upbringing and his absentee Kenyan father. In Rising Star, Garrow describes Obama’s book as “a work of historical fiction.”

Garrow said that, in Dreams of My Father, Obama was “making a very conscious effort to reconstruct his life as dramatically more African American than it really was.” He also was attempting to re-cast himself as a rebellious tough guy, rather than the academically gifted nerd he really was, according to Garrow.

At one point, Olney quoted from the Rising Star epilogue that Obama had “willed himself into being” and that “the crucible of self-creation had produced an iron will,” but “the vessel was hollow at the core.”

“That’s pretty rough,” Olney said.

Garrow—who late in the evening described himself as “a Bernie Sanders Democrat” and “a great fan of Edward Snowden”—conceded that it was. But the author’s strongest criticisms centered on what Garrow regards as three key ways in which Obama walked back key campaign promises: by accepting large amounts of private campaign financing; by presiding over the growth of the federal government’s surveillance and anti-terrorist apparatus; and by retreating from support for same-sex marriage until Vice-President Joe Biden “got out there first.”

In response to Garrow’s comments, Olney asked whether Obama was really so different from other politicians who realized, once they got elected, that their campaign promises had to yield to more pragmatic considerations. Had Abraham Lincoln been “absolutely consistent in the things he said and the things that he did?” Olney asked, drawing one of the night’s biggest applause lines.

“I probably frankly have never read an Abraham Lincoln biography because I am almost entirely a post-1945 person,” Garrow replied.

Noting that Obama had read the first 10 chapters of Garrow’s book, Olney wanted to know what the former president thought of its less-than-glowing appraisal.

“The impression I came away with,” Garrow responded, “is that when someone has written up a version of their life story, at that point 20 years earlier, they remember better and remain attached to the version of their life which they wrote than the version which they lived.”

But if Garrow was unsparing in his remarks on Obama, he saved perhaps his harshest rebukes for Obama’s successor, Donald Trump, and the current U.S. Senate candidate from Alabama, Roy Moore—and for the American people themselves.

“The last 13 months again highlight, to me as a political historian, how American public opinion, oftentimes, lots of times, at a mass level gets huge numbers of things fundamentally wrong,” Garrow said. “I think there is a deep weakness in the American people, in American public opinion. I think there is a deep vulnerability to ignorance in American culture and American opinion that we continue to see, and that I fear we will see again next Tuesday, Dec. 12 in Alabama.”

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Since the earliest days of the United States, America’s commanders-in-chief have sought to increase their power to act as they pleased—despite the objections of Congress, the rulings of courts, or the wishes of the public. But now, under President Donald Trump, that long-simmering trend is reaching a boiling point that some believe could threaten the separation of powers and undermine the nation’s cherished system of checks and balances.

On Tuesday night, an overflow crowd at the Museum of Contemporary Art in downtown Los Angeles turned out for a lively Zócalo/UCLA event in which an expert panel took up the question, “Does the Expansion of Presidential Power Threaten the Constitution?”

Moderator Ronald Brownstein, senior editor of The Atlantic and a CNN political analyst, led off the evening by observing that President Trump is by no means the first White House occupant to try to inflate his portfolio of executive prerogatives.

UCLA constitutional law scholar Adam Winkler concurred: “There’s no doubt that within the modern era every president has expanded executive power, Democrat or Republican.”

But some of the panelists suggested that Trump—who ran “a top-down campaign where he is the decider,” in Winkler’s words—already has shown signs of pushing his privilege to act beyond that of his predecessors. Among those signs are his thwarted attempt to place a temporary travel ban on visitors from some largely Muslim countries, and his administration’s (also thus far thwarted) threats to withhold federal funds from states that don’t fully comply with federal immigrant authorities’ round-ups of undocumented immigrants.

John T. Woolley, a University of California at Santa Barbara political scientist and co-director of the American Presidency Project website, said, “One of the truisms is: Presidents get away with what Congress lets them get away with.” But Woolley said that Trump’s urge to overreach stems from his alarming “disregard for a number of norms” that have served as a check on past presidents. For example, Trump has publicly criticized federal judges and journalists and even private citizens by name, and has refused to subordinate his brash personal style to other Oval Office shows of decorum.

“One of the things we know about Trump is that he has been profoundly ignorant of government processes and policies,” Woolley said.

In a way, Trump is simply exploiting the precedents set by previous chief executives: whether issuing executive orders to temporarily halt certain migrants, threatening to cut off federal funding to so-called sanctuary states and cities, or firing Tomahawk missiles at Syria, several panelists contended.

But because of his shortage of Capitol Hill contacts, and his complete lack of experience in wrangling legislation, Trump may feel more tempted—or obliged—than previous presidents to try and cram his agenda through by executive fiat, the panelists said.

Joel Aberbach, director of UCLA’s Center for American Politics and Public Policy, said that Trump was sworn into office lacking a clear legislative strategy, and still has yet to fully stock his administration with key appointees. “So executive authority is the tool” that Trump is going to wield, Aberbach said.

The debate over the proper limits of White House authority is as old as the republic, if not older. UCLA political scientist Lynn Vavreck said the nation’s founders, who were rebelling against the tyrannical dictates of England’s monarchs, always were wary of granting too much power to the new U.S. executive.

Yet, particularly over the last half-century, across successive administrations of both major parties, presidents have tested their ability to do end-runs around an increasingly weakened and polarized Congress, the panelists concurred.

While Congress has lost ground to the president, federal courts have acquired more power over the last 100 years, Winkler said, and so Trump is now pushing back against them. Already, he has suffered some stinging defeats, such as the court-ordered stays on his attempted travel ban.

Brownstein noted that on Tuesday, just a few hours before the Zócalo/UCLA event, a federal judge in California temporarily blocked President Trump’s administration from withholding funding from so-called “sanctuary cities” that aren’t falling in line with the crackdown by federal immigration authorities on undocumented immigrants.

If the courts so far have proven to be the new president’s main policy roadblock, it’s significant that Trump also has clashed with some of his own federal agencies, including the intelligence agencies, the panelists said. And, like Obama before him, Trump also is facing legal challenges from state attorneys’ generals that mirror court strategies that stymied some of Obama’s executive initiatives.

Is expansion of executive power necessarily an ominous sign? Not always, the panelists suggested. Vavreck said that, in certain cases, as with Lyndon B. Johnson during the civil rights movement era, the president has asserted executive power as a positive force to move Congress and consolidate a timely shift in the nation’s attitudes.

But such examples are in danger of becoming the exception that proves the rule, the panelists indicated. U.S. members of Congress, under relentless pressure from partisan media outlets and their own most extremist constituents, are tied up in legislative knots—practically providing an invitation for the president to trample the Congress, even without having won a landslide victory or a popular mandate.

“Is politics going to become more apocalyptic?” Brownstein asked toward the end of the evening. One audience member, Max Goldberg, picked up the theme, asking whether our government is being brought to a standstill by a small group of legislators.

Ultimately, the solution may lie in presidents realizing that, if they only can succeed in ruling by executive orders, their achievements may be quickly overturned—by the next overreaching president.

“There are presidents who will want legacy legislation, and they will have to do it through Congress,” Vavreck said.

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But that choice was accompanied by a healthy skepticism of the role of money in the halls of government. As the years went by, recurrent scandals prompted rounds of reform, fostering an intricate system of rules to promote ethical conduct.

The result is a daunting interface between private and public life, the line marked by financial investigation, disclosure, and divestiture. Still, from the early 20th century, U.S. presidents began to routinely call on leaders from business and industry to head key agencies of the government. And despite nagging public suspicion, the moguls drafted into service were consistently free of accusations—let alone outright findings—of corruption or misconduct.

Keep in mind, the sort of corruption threatened by the rich and powerful is quite distinct from the more garden-variety graft usually associated with public officials—bribery, principally; or undue allegiance to one political party or another. Such concerns were addressed in the late 19th century by the institution of the civil service, when federal employees were subjected for the first time to entrance exams, and protected from political removal. It marked the advent of a new kind of entity: the career civil servant.

Reckoning with the threat posed by wealthy appointees—that they might place their private interests ahead of the public’s, using their positions to help their friends or augment their fortunes—came later, and required more elaborate safeguards.

It was the onset of the first World War and the attendant task of retooling the nation’s industrial economy for wartime production that brought a surge of business executives into the government. Drafted by President Woodrow Wilson, starting in 1917, they signed on for service in new government bureaus at the nominal salary of a dollar a year.

First among these wartime stalwarts was Bernard Baruch, a financier and speculator known in his day as “the lone wolf of Wall Street.” Appointed head of the new War Industries Board, Baruch recruited a bevy of his tycoon chums and together they put the peacetime economy on footing to produce uniforms, tanks, and ammunition.

Another Wilson appointee was Herbert Hoover. A mining executive then based in London, Hoover emerged on the public stage by leading humanitarian war relief efforts for neutral Belgium. Calling Hoover back to the U.S., Wilson named him Food Administrator, and charged him with limiting domestic consumption and keeping the U.S. Army and its allies fed in the field.

Both of these men—and the dozens of other businessmen drafted to assist them—performed capably. Though these appointments came at the height of the Progressive Era, and the wary view of wealth that went with it, the American public came to accept these appointments as legitimate without audible objection.

Skip forward a decade, to 1929, and wealthy office-holders had become a routine feature in the federal government. More than that, it was a non-partisan phenomenon. Bernard Baruch had become the titular head and chief fundraiser for the Democratic Party, while Hoover, after a brief dalliance with the Democrats, won the presidency as a Republican. When Hoover became president, he decided to continue the dollar-a-year tradition, donating his salary to charity.

During Hoover’s tenure the crisis was not war but the Great Depression, and he again turned to men of wealth. One of Hoover’s principal innovations was to launch the Reconstruction Finance Corporation, which would channel bailout funds to foundering banks and railroads. Selected to lead the new agency was Charles Dawes, a Chicago banker with a history of moonlighting for the government—he was the nation’s first Comptroller of the Currency, under President William McKinley, and later elected vice president with Calvin Coolidge. In 1925 he was awarded a Nobel Peace Prize in recognition of his adroit management of postwar international debts.

Dawes immersed himself in launching the RFC until the bank owned by his family, the Central Republic Bank of Chicago, began to founder. Despite Hoover’s protest, in June 1932 Dawes resigned his post and rushed home to wrestle with panicked creditors. Soon after, now against Dawes’ private protest (he feared, rightly, political blowback), Central Republic was named recipient of the largest loan yet issued by the RFC. Though the bank ultimately closed, the bailout made for an orderly transition and the loans were repaid. But public resentment over what appeared to be an in-house deal damaged the reputation of Hoover and of the relief agency.

Here was just the sort of misconduct that critics had feared from the outset—men of wealth protecting their personal interests. But the election of Franklin Delano Roosevelt later that year seemed to clear the air.

Roosevelt was more sparing in his reliance on the men of industry and finance—and yes, all were men—but utilize them he did, especially when faced with a new World War. As the crisis loomed, like President Wilson before him, Roosevelt called on the dollar-a-year crowd. Leading this troop of civilians was Bill Knudsen, then-president of General Motors. An expert in mass production, Knudsen was appointed in 1940 chairman of the Office of Production Management and member of the National Defense Advisory Commission, at a salary of $1 a year.

As production ramped up, Knudsen brought with him executives from car companies, AT&T, and U.S. Steel. New Deal bureaucrats and labor activists denounced the appointments, but despite all the procurement contracts, all the millions spent, there was hardly a whiff of scandal.

By 1942, when Knudsen was awarded with a formal commission as Lieutenant General in the Army, the worst his critics could say was that he had been too slow in converting from peaceful industrial production to a war footing. “We are beginning to pay a heavy price for leaving the mobilization of industry in the hands of business men,” the Nation warned in 1942. Steel makers, in particular, were fighting expanded production “as a menace to monopolistic practices and stable prices,” argued an editorial. It was “Dollar-a-Year Sabotage,” The New Republic headlined.

But those criticisms were drowned out by the din of factory production, the great outpouring of armament that yielded an “arsenal of democracy,” as Knudsen phrased it, that carried the Allies to victory. “We won because we smothered the enemy in an avalanche of production,” Knudsen remarked later. For all the fears of conflicted interest, the businessmen had proved their worth.

The dollar-a-year appointment routine went out with World War II, but presidents continued to tap the moneyed elite for advice and expertise, a practice that became the source of a growing thicket of regulations designed to forestall malfeasance. Roosevelt broke first ground here, in 1937, with an order barring purchase or sale of stock by government employees “for speculative purpose.” Later, his War Production Administration required its dollar-a-year men to disclose financial holdings and undergo background checks.

From there, safeguards advanced by stages. John F. Kennedy, during his aspirational 1960 campaign, called for a new standard, by which “no officer or employee of the executive branch shall use his official position for financial profit or personal gain.” Upon his election, he followed up with an executive order barring any “use of public office for private gain,” and then lobbied Congress for parallel laws. The result was new criminal statutes covering bribery and conflict of interest.

Lyndon Johnson was never an exemplar of disinterested politics, but early scandal in his administration, involving influence peddling by Johnson intimate Bobby Baker, a businessman and Democratic party organizer, prompted a new round of rulemaking. Each federal agency should have its own ethics code, Johnson ordered, and all presidential appointees were now required to file financial disclosure statements. In the 1970s, the fallout from the Watergate scandal, together with the troubles of presidential chum and advisor Burt Lance, prompted a new round of reform from President Jimmy Carter.

As with so many things, the status of ethics in an administration tends to reflect the character of the chief executive, regardless of the rules in place at the time. Consider the following exchange, in 1934, between Franklin Roosevelt, Joe Kennedy, and presidential aide Ray Moley, prior to Kennedy’s appointment at the SEC.

As recounted by Joe Kennedy biographer David Nasaw, Kennedy warned Roosevelt that he had “done plenty of things that people could find fault with.” At that point, Moley interjected: “Joe, I know you want this job. But if there is anything in your business career that could injure the president, this is the time to spill it.”

Kennedy’s reaction was quick and sharp. “With a burst of profanity he defied anyone to question his devotion to public interest or to point to a single shady act in his whole life. The president did not need to worry about that, he said. What was more, he would give his critics—and here again the profanity flowed freely—an administration of the SEC that would be a credit to his country, the president, himself and his family.”

After an exchange like that, codes and rules might seem superfluous. To outsiders, the Kennedy appointment appeared rash; “setting a wolf to guard a flock of sheep,” one critic charged. But Roosevelt was unfazed. Asked why he’d named such a notorious crook as Kennedy, Roosevelt quipped, “Takes one to catch one.” In the event, while nobody ever proposed Joe Kennedy for sainthood, he was never accused of misconduct or self-dealing while presiding at the SEC.

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Twenty-four years earlier, next door in Independence Hall, brave men had declared to King George the right of the people to alter their government. Now, just days before a crucial New York vote in the 1800 presidential contest, Cooper stood charged with having “falsely” published criticisms of Adams’ policies “to arouse the people against the President so as to influence their minds against him on the next election.”

The capital’s high and mighty—the president’s private secretary, Cabinet members, prominent congressmen—thronged the courtroom. This was no election-year sideshow; it was political strategy in action. The newspapers popping up across the Republic, rudely partisan, were the heartbeat of public life in the new nation. The Republican press was vital to Vice President Thomas Jefferson and his party in their campaign to oust Adams and the Federalists from the presidency. None understood this better than Secretary of State Timothy Pickering, who faced Cooper from the bench. There he sat alongside Supreme Court Justice Samuel Chase—presiding judge and persecutor hip to hip. Pickering, kingpin of the administration’s effort to gag its foes, would bring 17 sedition indictments, including against the editors of the leading Jeffersonian papers.

Every presidential election matters. But only a few have offered a choice of fundamental principles, in ways that seemed fundamental at the time, and not just in retrospect. The election of 1860, which led to Civil War, tops that list. The election of 1800 follows close behind. In 1800, as in the courtroom that spring day, two visions of the meaning of the Revolution and the Constitution butted heads.

As Cooper told the jury, “this country is divided, and almost equally divided, into two grand parties.” Jefferson’s Republicans might have been queasy at the rise of those parties but Adams’ ruling Federalists were horrified.

They had written and ratified the Constitution to quell what they saw as the excesses of democracy and faction unleashed by the Revolution. Their Constitution had created a strong federal government, which took power away from state legislatures they judged too responsive to calls for debt relief, paper money, and lower taxes. They believed the presidency and the Senate, indirectly elected from among the best men, would check popular enthusiasms arising from the directly elected House of Representatives. The people would go to the polls every two years, choose among the candidates offered to them, and then go back, quietly, to their private lives, leaving their betters to govern them.

It didn’t work out that way. In the 1790s Americans grew more energetic in pursuit of money, more heterodox in religion, more noisy in politics, and less deferential to gentlemen. When French revolutionaries took up the self-evident truths proclaimed in the Declaration of Independence, some Americans wore the French tricolor on their hats and joined Democratic Societies. Those who had opposed the Constitution as a threat to liberty were joined by those, like Jefferson and James Madison, who had supported the Constitution but now saw Alexander Hamilton’s Federalist program of debt funding, taxes, and manufacturing promotion as re-creating the overweening state and monarchal corruption they had just thrown off.

These differences simmered while George Washington, the untouchable hero, remained president. They boiled over under his successor Adams, particularly after the revolutionary French government in 1798 treated American diplomats and ships as roughly as England had for years.

In that crisis, Republicans urged meeting insult with caution. Adams and congressional Federalists instead prepared for war, against foes both abroad and at home. They built up the navy and, at Hamilton’s instigation, created a permanent army of 12,000 troops, with himself as organizer and effective commander, and a “Provisional Army” of 10,000, to be activated in case of invasion or emergency. What purpose a large army would serve was never clear—Adams himself thought a French invasion implausible—and even some Federalists shared Republican fears of Hamilton’s intentions. To defray the expense, they passed a direct property tax on houses, land, and slaves.

Once eager for immigration to bolster the economy, Federalists by 1798 eyed immigrants as enemies within. As a Federalist congressman put it, they did “not wish to invite hordes of wild Irishmen, nor the turbulent and disorderly of all parts of the world, to come here with a view to disturb our tranquility …” Under the terms of a new Naturalization Act passed in June, aliens would have to wait 14 years instead of five to become citizens. (An initial version would have forever barred naturalized citizens from voting—new citizens had a nasty habit of backing Jeffersonians.) A companion Alien Friends Act, passed a week later, authorized the president, without giving a reason or holding a hearing, to expel any immigrant.

Finally, on July 14, 1798, Adams signed the Sedition Act, under which Cooper was prosecuted. The law made it a crime to “write, print, utter or publish … any false, scandalous, and malicious writing” against the government, president, or Congress with the intent of bringing them “into contempt or disrepute.” Or as the Federalist Boston newspaper Columbian Centinel summarized it, “It is patriotism to write in favor of our government—it is sedition to write against.”

Thus were stark lines of division drawn for the 1800 presidential election, which played out under rules unfamiliar to modern voters. As today, winning required a candidate to gain a majority of electoral votes. Unlike today, most electors were still chosen by state legislatures. (Citizens directly voted for presidential electors in only five of the 16 states.) Each elector cast two votes, with the leading vote-getter becoming president, the runner-up vice president. There was no single presidential vote on a single day in 1800, rather a series of individual state legislative elections. These contests stretched out over a year in a polarized nation where Federalists and Republicans sang different songs, applauded different plays, used different forms of address, and read different newspapers.

What’s striking is how much more clearly a partisan press framed the issues of 1800 than today’s elite media has in our current election, where coverage elevates petty scandal and character over the substance of policy.

Readers in 1800 did not go wanting for character slams, of course. The Gazette of the United States held up to Jefferson his “want of fortitude and total imbecility of character, which have marked your whole political career.” But for all the attention to character, no regular reader of the press could mistake the fundamental party choice at hand. An expensive navy, a standing army, the property tax and the national debt, the Alien and Sedition Acts—for or against.

As Thomas Cooper himself told his jurors before they convicted him to six months in prison, one party “thinks that the people, (the Democracy of the country) has too much, the other, too little influence on the measures of government.” He might have added that one party was unprepared to accept the legitimacy of organized opposition parties and the regular transfer of power between them. Federalists “were doing something more than moving against ‘sedition …’” historians Stanley Elkins and Eric McKitrick write. “[T]hey were striking out furiously at parties in general, in a desperate effort to turn back the clock.”

The contest came down to the last two days before the Dec. 3 deadline for balloting by the presidential electors. In Pennsylvania, a legislature divided between a Republican lower house and a Federalist senate cut a deal to split its votes, giving eight to Republicans and seven to the Federalist ticket. With the two candidates tied nationally with 65 electoral votes apiece, the South Carolina legislature handed victory to the Jefferson and the Republicans.

Unexpectedly—and potentially disastrously—none of the Republican electors, as intended, cast his second vote for someone other than Aaron Burr, Jefferson’s running mate. Jefferson and Burr tied, sending the election to be decided by the Federalists who controlled the lame-duck House of Representatives. After months of plotting and dozens of ballots, a handful of Federalists abstained from their leaders’ effort to elevate Burr, and Jefferson prevailed.

In the preface to the transcript of his sedition trial that Thomas Cooper published from his prison cell, he posed a question to voters. “Ask yourself …, is this a fair specimen of the freedom you expected to derive from the adoption of the Federal Constitution? And whether the Men who can sanction these proceedings, are fit objects of re-election?” Voters answered more decisively than the close electoral vote suggested. They elected Republicans to 67 of the 106 House seats. Federalists would never again control the House or come close to winning the presidency. Jefferson called it the “Revolution of 1800.” Few historians have disagreed.

As in 1800, voters this year face a choice, perhaps of equal historical significance, about whether to turn back the clock—on immigration, religious tolerance, racial equality, health care, the NATO alliance, nuclear proliferation, even on protecting the press against the kind of libel action brought against Cooper. Were Cooper to come back, he might well ask himself—in this age of cable news, of clicks and tweets, of professional nonpartisan reporters, how well do voters of 2016 even know it?

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If you answered “both,” you’d be correct. We don’t tend to think of FDR as a conservative today, and at certain points he would have rejected the label, but in 1936 that was how he wanted to be understood. He was three years into his first term and it was far from clear there would be a second. The mandate from his 1932 landslide victory seemed exhausted. Americans were seven years into the catastrophe of the Great Depression, which had destroyed whole industries and spread economic pain across the country.

Most of all, Roosevelt faced withering criticism for his signature agenda, the New Deal. While his predecessor, Herbert Hoover, had resisted using the powers of government to battle the Depression, Roosevelt argued that the economy had changed in ways that required bigger government. The railroad, the telegraph, the automobile, and the modern corporation had pulled the American people into a tighter web, so economic pain could more easily spread.

Roosevelt had used his 1932 presidential campaign to dramatize his cause of remaking government for the new economic challenges. During the Democratic National Convention, he departed from the usual tradition in which a candidate was notified by telegraph of his nomination after the convention is finished. He instead telegraphed party leaders, after hearing of his nomination, with the request that they hold the convention in session while he flew from New York to Chicago—a very rare thing at the time—in order to accept the nomination in person. When Roosevelt finally appeared before the delegates, he told them, “Let it also be symbolic that . . . I broke traditions.” He was committed to bringing about a new political order.

When Roosevelt was elected in a landslide, he set about creating program after program that rewrote rules for American manufacturing, limited production on American farms, and changed the structures of the credit system. The New Deal was astounding in its scope, promising to rework basic structures of the American economy.

But well before the 1936 re-election campaign, Roosevelt was met with resistance. Many businessmen became concerned about the way that the New Deal was infringing on their power and profits. “It must have now become clear to every thinking man,” Irénée du Pont, of the DuPont Company, wrote to a friend, “that the so-called ‘New Deal,’ advocated by the Administration is nothing more or less than the Socialistic doctrine called by another name.” To battle this threat, du Pont enlisted his family and friends in a campaign to bring down first Roosevelt and then the entire New Deal. Their strategy was what they hoped would be a grassroots campaign, conducted through a new organization called the American Liberty League.

Yet the businessmen realized that they could not just use the League to advocate for the protection of private property. That would turn off the common man in a time of deep economic depression. So as they cast about for an organizing principle, the League’s secretary, W.H. Stayton, suggested that they come up with what he called “a moral or an emotional purpose,” rather than merely the defense of property rights.

Stayton thought he knew one that would work. Not many issues, he wrote in a memo to the other leaders, “could command more support or evoke more enthusiasm among our people than the simple issue of the ‘Constitution.’” With all Roosevelt’s changes to the structure of government and the economy, Stayton suggested, he was threatening the Constitution. “The public ignorance concerning it is dense and inexcusable,” he wrote, “but nevertheless, there is a mighty—though vague—affection for it. The people, I believe, need merely to be lead and instructed, and this affection will become almost worship and can be converted into an irresistible movement.”

Stayton flatly acknowledged that his devotion to the Constitution was a ruse. He wanted to change it in various ways, starting with the elimination of the Sixteenth Amendment, which authorized an income tax that hurt the rich more than others. But for the purposes of the 1936 election, Stayton suggested, the League needed to act as though “the Constitution is perfect.” “We do not seek to change it,” he said, “or to add to it or to subtract from it; we seek to rescue it from those who misunderstand it, misuse it and mistreat it.”

Roosevelt immediately saw the problem that the League posed to his program. So he faced a choice. He could continue to advocate for a new political order, as he had in the 1932 election, but that would leave him open to the claims that he was subverting the Constitution and departing from the ideals of the Founders. Or he could do something else.

Roosevelt decided to make what we would today call “a pivot.” During the 1936 State of the Union in January, the president abandoned his call for a new political order and rhetorically remade himself into a conservative who defended the Constitution from usurpation by the rich.

In a combative address, he charged his political opponents with appropriating “the livery of great national constitutional ideals” to obscure their selfish political goals. He claimed that the Founders were against entrenched privilege and so would have supported him in his policies. And from that point forward, in address after address, Roosevelt wrapped himself in founding ideals to defeat his opponents.

At no point was the change in message more obvious than during the 1936 Democratic National Convention, held in Philadelphia. The location gave Roosevelt the opportunity to claim the symbolic covering of the founding era. Unlike his address four years earlier, where he first promised a new political order, he now said that his purpose was primarily conservative. They had gathered at the University of Pennsylvania football stadium, he explained, “to reaffirm the faith of our fathers, to pledge ourselves to restore to the people a wider freedom, to give to 1936 as the founders gave to 1776—an American way of life.”

That pledge turned out to be extremely powerful, even though it was totally at odds with his earlier rhetorical strategies. As Roosevelt rode around the stadium after the address, with the crowd of 80,000 going wild, many observers concluded that the election was, for all intents and purposes, over. Roosevelt won the most sweeping victory since James Monroe’s unopposed election in 1820. He won every state but two. And he carried so many allies with him into Congress that the Democratic U.S. senators, all 75 of them, were unable to fit into their side of the Senate chamber.

The problem is that neither Roosevelt nor his business opponents really sought to restore the government to the way it was understood by the Founders. The Depression had created new challenges unknown in the late 18th century. It would be impossible to go back. But the 1936 election demonstrated the power of rhetoric invoking the Constitution as it was originally understood, or at least as politicians claimed it was to be originally understood.

From that point forward, both Democrats and Republicans have gestured to the founding moment to criticize their opponents and to justify their policies, especially when they are in trouble. The Founders and the Constitution have become a political football that each side needs to score points. And it is that rhetorical pattern that is, in many ways, the most significant legacy of the election of 1936.

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We are told that this year’s presidential election is unprecedented in many ways. The American voters are faced with the choice between an unlikely candidate who has been repudiated by many within his own party, and a seasoned politician whom the head of the FBI characterized as “extremely careless.” The tumultuousness of the race makes many long for the good old days when elections were civil, thoughtful, and quickly resolved

In other words, we are not longing for 1876.

A legal scholar, I first learned the story of the 1876 presidential election when I was studying the aftermath of the 2000 presidential election and examining how the laws governing the counting of votes remain unsettled in the 21st century. In 1876, as today, the country was deeply divided. The presidential contest pitted Rutherford B. Hayes, the Republican governor of Ohio, against Samuel Tilden, the Democratic governor of New York.

In the Republican Party convention, Hayes prevailed on the seventh ballot against the early party favorite, Maine Representative James G. Blaine, after Blaine was unable to clear his name from a scandal involving the lucrative payment that he allegedly received from the sale of apparently worthless railroad bonds. Tilden had a much easier road to the Democratic nomination due to his reputation as a reforming governor who had gained his office by exposing the corruption and bribery practiced by Boss Tweed and Tammany Hall in New York City.

The general election campaign became a referendum on two distinct concerns. First, the widespread corruption of the administration of the departing incumbent president, Ulysses S. Grant. Second, the struggle to re-establish state governments throughout the areas controlled by the defeated Confederacy. Tilden appealed to rural voters who were fed up with the corrupt mess in Washington as well as to white Southerners who sought to recapture control of their state governments from Republican carpetbaggers and newly free African-Americans.

The Republican strategy, as Chief Justice William Rehnquist recounted in his 2004 book about the 1876 presidential election, was “to impress on the electorate that while every Democrat had not been a rebel, every rebel had been a Democrat.” Hayes was the champion of those who feared the election would undo everything the Civil War had achieved for African-Americans. Just 11 years past, the war’s bloody cost was still vividly remembered by the many Union soldiers now voting in the North.

We remember 1876 though, not because of the presidential campaign, but because of the inconclusive vote. Two weeks before Election Day, Hayes confided in his diary that “danger is imminent: A contested result. And we have no such means for its decision as ought to be provided by law.” Hayes could not have imagined how prophetic his words would become.

An illustrated sheet music cover for a song composed in honor of Republican presidential candidate Rutherford B. Hayes, 1876.

Tilden emerged as the undisputed victor in 17 states containing 184 electoral votes, and Hayes clearly prevailed in 15 states with a total of 166 electoral votes. Tilden won all of the former Confederate states that had emerged from reconstruction; the border states of Delaware, Kentucky, and Missouri a handful of Northeastern states; and the three scattered states of Indiana, Missouri, and West Virginia. Hayes won a belt of states ranging from the West through the Plains, as well as the Midwest, Pennsylvania, and five New England states.

The winner was unclear in the three Southern states that were still under the control of Republican governments backed by the federal army: Florida, Louisiana, and South Carolina. Each of those states had struggled to make the transition from the Civil War to the new era prohibiting slavery and guaranteeing equal rights, which was promised by the constitutional amendments. Federal troops were still there to enforce those legal guarantees and to defend the many African-Americans who had been elected to office.

Additionally, while Hayes won Oregon by about 1,000 votes—one of his electors also served as a deputy postmaster, thus violating the constitutional prohibition upon electors holding federal office. Hayes would prevail only if he won all 20 of the uncertain electoral votes: Louisiana’s eight electoral votes, South Carolina’s seven, Florida’s four, and the disputed elector in Oregon. Conversely, Tilden would be elected if he captured just one of those 20 electoral votes.

Tilden’s supporters insisted that Democratic votes had been wrongfully ignored in the three Southern states, while the Republican supporters of Hayes complained that African-Americans in those states had been prevented from voting through intimidation. The dispute was not resolved by any of the extant constitutional provisions or federal statutes, but rather by the 8-7 vote of a special commission that Congress established solely for the purpose of resolving the election.

Hayes thus defeated Tilden by one electoral vote–185-184–after it was determined that all four contested states had cast their votes for Hayes. Congress accepted that result just before Hayes was inaugurated on March 4, 1877.

There has never been anything like it before or since. Even in 2000, when the Florida Supreme Court and then the U.S. Supreme Court took turns overseeing the recounting of votes in Florida, the dispute was limited to one state and there were no allegations of violence or widespread fraud on Election Day. Since 1876, we have expanded the right to vote to women and to 18-year-olds, and have worked to secure the voting rights of African-Americans that were supposed to have been guaranteed by the constitutional amendments adopted after the Civil War. But we have yet to adopt a widely accepted standard procedure in this country for how to count votes—and recount votes when there are disputes. And this lack of a standard is what precipitated the events in 1876 and again in 2000. The special commission that Congress created in 1876 was a one-off, and nothing has replaced it. Each state has its own rules for counting the votes cast by the public on Election Day, and Congress remains free to decide how it wants to count contested electoral votes.

So as we endure a presidential campaign that offers new, often unwanted, surprises at every turn, the best conclusion may be that the election results are conclusive, whatever they happen to be. 2016 may come to represent the nadir of presidential campaigns, but 1876 still holds the title for problems in the election itself, the counting of presidential votes. Let’s hope that doesn’t change this year.

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