First State Comes Last in Politics

After taking the lead in signing the Constitution, Delaware has fallen behind—which is good and bad.

Happy birthday, America. Although July Fourth is the day the 13 Colonies declared their independence to become the united states, they did not become the United States until there was a federal Constitution.

E pluribus lacked its unum. (“Out of many, one.”)

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Delaware, of course, led the way to unum as the first state to ratify the new Constitution on Dec. 7, 1787, and, frankly, it has been riding that reputation ever since.

The state did pick up a little more patriot envy as first in presidential politics, as a bellwether leading the way by voting for the winner in every election from 1952 to, well, it is hard to say. There but for some hanging chad, as Gore took the popular vote but Bush carried the Electoral College, the streak would have lasted until 2000. Florida!

Perish the thought, but it is all so much camouflage. The First State has a dirty little secret. It is downright biblical. On way too many occasions, the first shall be last. Not that being last is always bad.

Delaware is the last state where Return Day lives on. It is one of the underlying reasons the politics here is more civil than in other places. That, and the state’s small size that makes everybody like to think they know everybody else. Return Day is a relic from the early days of the Republic, when voters would “return” to their county seat two days after an election to find out who won.

Sussex County kept the tradition alive, and, now, it is a celebration of political reconciliation, the centerpiece being a parade with winners and losers riding together in horse-drawn carriages. People may gloat and people may sulk in private, but, in public, they have to keep up appearances.

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Delaware is also the last state with a Court of Chancery. That makes it the first state for corporate law. The court is a vestige of English feudal law, a place to go for relief based on fairness, a more flexible approach than the letter of the law. After independence, other states got rid of theirs, but Delaware never bothered.

The cases are tried before judges, not juries, which are far less predictable. Businesses love it, and as long as they do, a whole lot of them will continue to keep their corporate headquarters here and pour in the dollars that finance roughly a third of the state’s budget. It can be good to be last.

As a matter of fact, Delaware arguably got a national park because it was bringing up the rear. It had become the only state without one, and that was not fair, so some of the famous Colonial sites, like the Court House in Old New Castle and The Green in Dover, were gathered up to form a far-flung national park and turn Delaware from the only state without one to the last state to get one. Really, how could the National Park Service call itself “national” without all 50 states?

There are times it is not good to be last. It can be seriously embarrassing. Delaware once got a state Supreme Court out of it. By the mid-20th century, Delaware was the last state (out of 48 states at the time) without an independent Supreme Court. Instead, it used a system of “leftover judges,” cobbling together a high court out of judges who did not take part in the case under appeal.

It was cheaper that way. It was also a little too much judicial backscratching, this you-hear-my-case-and-I’ll-hear-yours. Maurice Hartnett III, a Supreme Court justice, noted in a history he wrote about the high court that appeals in the days of the “leftover judges” were few and far between “because the losing litigants and their lawyers felt it was useless.”

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Eventually, it could not go on. Delaware was growing as a corporate law powerhouse, but out-of-state lawyers were leery of the makeshift high court, and it was mortifying the state bar. It might be cheaper, but it was about to cost the state business if the legislature did not enact a constitutional amendment to set up an independent court, and so it did in 1951.

“That was the type of argument that the members of the Delaware General Assembly could readily appreciate,” Hartnett wrote. A state can do worse than set up the last Supreme Court, and Delaware has.

It was the last state to abolish the whipping post. It stayed on the books all the way up until 1972. By then, it had not been used to punish a crime here for 20 years, although there was a close call in the early 1960s, when a judge sentenced a mugger to 25 years and 20 lashes.

The state was ridiculed. Bert Carvel, the Democratic governor, commuted the whipping, and he was candid about the reason. He wanted to stop the embarrassment. Delaware was also the last state to hang someone for murder. It was the way it executed Billy Bailey, who was convicted of killing two elderly people. He died on the gallows in 1996.

The lasts go on. The state was a laggard in establishing a college for women, as noted by the University of Delaware in the April edition of the Messenger, its alumni magazine. The women’s college opened in 1914 and operated until men and women were finally allowed to take classes together in 1945.

Delaware was the last state to admit women to practice law. People can look it up on the Widener Law Library blog. Sybil Ursula Ward and Evangelyn Barsky became lawyers in 1923, when the state could hold out no longer. After all, it had been three years since women got the right to vote with the ratification of the 19th Amendment in 1920. Not that Delaware was prompt about that, either. It did not ratify the amendment until 1923, when women’s suffrage was already the law of the land. 

Delaware might not be finished with its list of lasts. It is still in the running to be the last state to send a woman to Congress, along with Vermont and Mississippi.

Never mind. Delaware will always have the Constitution. 

Illustration by Tom Labaff

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