by Ray Raphael
Nobody listened to Hamilton’s latest tirade. Burr’s character was not the issue. “He is ambitious—selfish—profligate. His ambition is of the worst kind—it is a mere love of power,” Speaker of the House Sedgwick admitted. Yet Burr held “no pernicious theories,” and because of his obvious inadequacies “Burr must depend on good men for his support & that support he cannot receive but by a conformity to their views.” A Burr presidency, in short, would give Federalists access to centralized power, and that was worth fighting for.38
Since the first presidential election, Hamilton had been willing and even eager to exploit the “defect in the constitution” to achieve his party’s ends, yet now, when Federalists found themselves with a special opportunity to do so, he reneged. Was it honor that caused him to back off? Personal vendetta? Sound judgment? Whatever his reasons, Federalists in Congress did not share them. They had learned too well from their master: party loyalty came first.
The first vote to break the Jefferson-Burr tie was taken in the Capitol building, under construction in the swampy town of Washington, at 1:00 p.m. on Wednesday, February 11. Predictably, eight states voted for Jefferson, six for Burr, and two delegations, splitting evenly, cast no votes. Members caucused, offered deals, and voted again, but the result remained unchanged. Into the night they voted and caucused, and at 8:00 the following morning, after casting twenty-seven ballots, the House finally recessed. Voting resumed on Friday and again on Saturday. Not until Sunday, the Sabbath, did members take a full break. By then they had voted thirty-three times.
On that day, a frustrated Jefferson wrote to his ally James Monroe, currently governor of Virginia. Federalists, he said, had talked of passing “a law for putting the government into the hands of an officer” of their own choosing if the election were not settled by March 4, when Adams’s term as president ended. Jefferson and the Republicans countered with force: “We thought it best to declare openly and firmly, one & all, that the day such an act passed, the middle states would arm, & that no such usurpation, even for a single day, should be submitted to.”
While the prospect of armed resistance to federal authority “shook them,” Jefferson reported, Federalists were even more “alarmed” by the next volley: Republicans threatened to call a convention “to re-organize the government, & to amend it.” That truly hit its mark. “The very word convention gives them horrors, as in the present democratical spirit of America, they fear they should lose some of the favorite morsels of the constitution.” For years, Federalists had complained that Republicans were warmed-over Anti-Federalists bent on destroying the Constitution, and now their worst fears might come true. A new convention, they knew, might well throw out the old rules altogether, just as the Federal Convention of 1787 had done.39
Neither threat was idle. A new constitutional convention could and probably would have been called if Jefferson were not elected, and military preparations were already under way in at least two key states. Governor McKean of Pennsylvania later assured Jefferson, “Militia would have been warned to be ready, arms for upwards of twenty thousand were secured, brass field pieces etc. etc. and an order would have been issued for the arresting and bringing to justice every member of Congress and other persons found in Pennsylvania … concerned with the treason.” In Virginia, Governor Monroe had already placed a militia guard around a large storehouse of arms in New London, halfway between the state capital in Richmond and Washington, to keep it from the hands of the national government. Fears of disunion struck a chord with the Delaware Federalist James Bayard, who announced he would withhold his vote for Burr rather than “hazard the Constitution upon which the political existence of the state depends.” A few others followed Bayard’s lead, and at noon on Tuesday, February 17, on the thirty-sixth ballot, the House of Representatives voted ten states to four, with two abstaining, for Jefferson.40
The nation had come to the brink of dissolution not simply because of one small “defect” in the Constitution; that flaw was easily remedied by the Twelfth Amendment, which required electors to distinguish between votes for president and votes for vice president. The real cause of near collapse was the manner in which that defect was exploited, and the deeper cause of that was the breakdown of honest governance, as the framers construed it. Once positioning for a presidential election had become the main concern of the national legislature, and once the Speaker of the House of Representatives had supported for the presidency a man he believed to be utterly without virtue and susceptible to influence, the dream had died.
The villain in this narrative could be called “faction” or the “spirit of party,” so universally assailed by all the principal players, but factions and parties are not in themselves bad, and besides, as Madison and others readily affirmed, they would always be around. The task of devising workable rules for government was to contain factions and parties, not eliminate them. In The Federalist 10, Madison revealed the Constitution’s basic containment policy—to keep any single faction from dominating the government:
If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.
By coming together as a body politic that extended across state and regional lines, Madison argued, Americans could ensure they would not live under the dominion of one particular group.
The creation of the presidency, and in particular the manner prescribed for the president’s selection, undermined that strategy. So too did the strengthening of the presidency during Washington’s administration and the establishment of national political parties. By 1800, the president was the presumed leader in setting foreign policy, he and his cabinet not only enforced domestic law but also helped shape it, and he possessed what amounted to an absolute veto. (Party politics made a veto override unlikely unless one party controlled at least two-thirds of both houses of Congress but not the presidency, an implausible occurrence. Not until 1845 did Congress override a presidential veto, and not until Reconstruction, when radicals in Congress battled President Johnson, was the override used as a formidable political tool.) The incentives to capture this office were too great for any interest group to ignore, but to have a realistic chance of success required organizing on a national level. This effectively marginalized minor factions, leaving only two top contenders. When one of these mega-parties proved victorious, it naturally wanted to remain in power, and to satisfy its “ruling passion,” it was indeed tempted to sacrifice “the public good and the rights of other citizens.” Such is the simple logic of must-win contests that require absolute majorities. The very event that Madison most feared had come to pass, courtesy of the Constitution.41
Though the elector system had facilitated the development of national parties with the ability to command discipline and ultimately control public policy, it didn’t have to be that way. Imagine for a moment that James Wilson had been successful in his bid to institute popular elections for president. Parties would still have formed, and to increase their chances of success, they would have nominated candidates, but the general voting population would not have exercised nearly the discipline evidenced by electors. Would Aaron Burr, a northerner with no particular appeal in the South, really have carried the day in that region? Of course not. Theoretically, electors were supposed to vote according to their own discretion, but by 1800 they didn’t; citizen voters, on the other hand, would have been guided only by their personal political preferences, and this would likely have resulted in a plethora of candidates, each the darling of some interest group. High Federalists might well have abandoned Adams after he disbanded the army and concluded peace with France. N
orthern farmers and artisans, although Republican, might have pushed candidates who were not from the southern slavocracy. Southern Federalists would have been free to vote for General Pinckney if they pleased. Such a wide-open field would likely have resulted in the pluralistic checks Madison had envisioned, making it more difficult for one group to command trans-regional allegiance and therefore take control of the presidency. Instead, the framers inadvertently created a narrow road to the assumption of centralized power, ensuring that a candidate favored by one of the mega-parties would take the presidency.
In the emergent two-party system there was still a check on the ruling party’s ability to elect a president of its choosing—but just a single check, the opposing party, and that might not always suffice. What if Ross’s bill, which would have allowed a partisan Congress to override state voting results, had passed, as it almost did? Federalists would have been in a position to ensure their own party’s success. Could they have repeated this over and over, as we have seen so often in other nations? If so, it might have taken another revolution, or at least another constitutional convention, to change the rules and the rulers.
CHAPTER TEN
Jefferson Stretches the Limits
The election of 1800 might have been ugly, and it certainly did not proceed as the framers intended, but in the end it did produce a chief executive who was the clear choice of presidential electors. Better yet, power changed hands peaceably. Despite the fears of Federalists, the people they labeled Jacobins did not retaliate with a reign of terror. Instead of initiating a wholesale attack on the Constitution, the ascendant Republicans found little incentive to dismantle the governmental machinery they had just inherited, nor were they able to dismantle the opposition. Federalists continued to participate as a minority party in Congress, and they maintained control of the federal judiciary. A shared government was not what either party had imagined. Each assumed that the winner would prevail not merely for a single election cycle; once victorious, it would actually vanquish the defeated party. That in large measure explains the intensity of the passions during the election.
Jefferson’s victory fell short of apocalyptic expectations precisely because the framers had established some balance among the separate branches of government. No judges were elected or unseated by the federal election of 1800. Republicans did turn a fifty-six-to-forty-nine deficit in the House of Representatives into a commanding sixty-five-to-forty majority, but Federalists retained nearly half the Senate seats, safely beyond the threshold they would need to negate a treaty. Jefferson would not be governing alone.
In addition to constitutional limits on his authority, the incoming president would be restrained by the very resistance to centralized power that led to his victory. How could a Republican president be an effective leader of a strong national government while remaining true to his ideological roots? That would be a difficult task, perhaps impossible. Many Federalists at the time accused Jefferson of inconsistency; before coming to power, they claimed, he had wanted to rein in the presidency, but once in command he proceeded to expand the office in numerous ways. Alexander Hamilton, however, did not go along with this politically expedient interpretation. Thinking back on their shared time in Washington’s cabinet, Hamilton recalled that while Jefferson had always wanted to limit centralized powers, he had not begrudged the chief executive his fair share of authority within the federal government. “While we were in the administration together,” Hamilton recalled early in 1801, when justifying his preference for Jefferson over Burr, “he was generally for a large construction of the Executive authority & not backward to act upon it in cases which coincided with his views. Let it be added, that in his theoretic ideas he has considered as improper the participation of the Senate in the Executive authority.”1
The full story is more complex than any summary interpretation. Both before and during his presidential tenure, Jefferson struggled to reconcile the apparent discrepancy between republican principles, which favored deliberations among elected representatives over executive prerogatives, and the efficacy of a strong executive office unencumbered by such deliberations. His struggle is our struggle too. To this day, Americans understand that much is to be gained and lost by allocating powers to a single man who can make critical decisions swiftly and efficiently. Which authorities should be entrusted exclusively to the president, and which should be checked? The Constitution provided a bare-bones outline. Some details were filled in during the terms of the first two presidents, both Federalists, but several issues remained unresolved, and the manner in which these were handled by a president who resolutely espoused republican philosophy would highlight the difficulties in applying theory to real-life exigencies.
Jefferson’s thoughts and feelings about executive power, shaped by America’s Revolutionary experience, followed a familiar trajectory. In his 1774 Summary View of the Rights of British America, he urged King George III to “reflect” that he was “no more than the chief officer of the people, appointed by the laws, and circumscribed with definite powers, to assist in working the great machine of government, erected for their use, and consequently subject to their superintendance.” Two years later, in the Declaration of Independence, Jefferson hurled invectives at “the present King of Great Britain.” Simultaneously, while in Philadelphia, he composed a draft for Virginia’s first constitution that referred to the state’s chief executive not as “governor” or “president” but as “administrator,” the weakest imaginable appellation. Upon serving his one-year term, the administrator would be ineligible for the next three. If Jefferson’s constitution had been adopted, Virginia’s chief executive would have been specifically prohibited from vetoing laws, dissolving or proroguing the legislature, declaring war, concluding peace, raising an army, coining money, erecting courts, establishing corporations, laying embargoes, or exercising several other powers that in the British government were prerogatives of the Crown. There should be no vestige of kingly authority here in America, Jefferson believed.2
Jefferson started questioning this view in 1781, when serving as Virginia’s governor during the British invasion. His calls for the militia to muster were largely ignored, causing him to complain that “mild laws,” which contained inadequate provision for executive “coercion,” prohibited him from raising and supporting the armed force he needed to put up a defense. “We can only be responsible for the orders we give and not for their execution,” he grumbled to Baron von Steuben, who himself had complained when only 12 unarmed Virginians reported for duty one day instead of the 104 who had been promised. Governor Jefferson asked the legislature for additional executive powers and for a declaration of martial law in zones proximate to the British forces, but it was too late. His term in office expired on June 2, 1781, and the following day Jefferson and the legislators fled the advancing British forces. When the assembly reconvened, it narrowly defeated a proposal to appoint a “dictator.” The dramatic swing of the pendulum, from too little executive power to too much, horrified Jefferson. In Notes on the State of Virginia, written immediately after his governorship, he decried the absence of an independent executive office. With all power vested in the legislature, Virginia was ruled by a “despotic government.” Echoing the cries of prewar Tories, he declared, “One hundred and seventy-three despots would surely be as oppressive as one.” Indeed, for want of “a few votes,” the legislature had almost abdicated its responsibility to represent the people and placed all power into “a single hand.” “In lieu of a limited monarchy,” he exclaimed, the legislature had nearly created “a despotic one.”3
The crisis in leadership could have been prevented had Virginians not eschewed all executive authority. Jefferson understood why this happened—he had certainly added his voice to the anti-executive clamor—but now it was time to create an independent and more powerful executive office. In June 1783, in a second attempt to draft a state constitution, he proposed a more open-ended role for the state’s chief executive, whom he n
ow called “governor.” Instead of being elected annually by the legislature, he would serve a single five-year term, thereby lessening his dependence. He would have “powers only, which are necessary to execute the laws (and administer the government), and which are not in their nature either legislative or judiciary,” but the precise enumeration of those powers was not to be determined in advance. “The application of this idea must be left to reason,” his draft stated flatly.
There were limits, among which were erecting courts, establishing corporations, and laying embargoes. These had also been placed off-limits in his 1776 draft, but this time he allowed the governor other powers. Declaring war, concluding peace, contracting alliances, raising an army, building forts, constructing armed vessels, and other such functions “we leave to be exercised under the authority of the confederation,” but if the confederated government did not claim jurisdiction in a particular case, authority in these fields “shall be exercised by the governor,” subject to regulation by the legislature. This reversed the existing order of operations. If Virginia were to be invaded again, the governor could act as he saw fit, even though the legislature could rein him in later. Recognizing that the creation of a stronger executive might frighten those who had just fought a war to rid themselves of a king, Jefferson included an interesting disclaimer: “By executive powers, we mean no reference to those powers exercised under our former government by the crown as of its prerogative, nor that these shall be the standard of what may or may not be deemed the rightful powers of the governor.”4
This draft, like the one in 1776, never received serious consideration, but four years later, when George Washington sent him a copy of the document produced by the Federal Convention, Jefferson offered again his thoughts on the executive office. Writing from Paris to John Adams and James Madison, he exploded at the provision allowing the chief executive to serve an indefinite number of terms. “Their President seems a bad edition of a Polish king,” he complained to Adams, who had also missed the convention. “Experience concurs with reason in concluding that the first magistrate will always be re-elected if the constitution permits it,” he told Madison. “He is then an officer for life.” This, with his frustration at the lack of a Bill of Rights, caused him to “stagger,” although he supported most other features and generally approved the work of the convention. Two other caveats deserve note in light of his later positions. He would have preferred that the judiciary be granted veto power over legislation, either with the president or separately, and he believed that congressional representatives, because they were elected by popular vote, were “very illy qualified to legislate for the Union, for foreign nations &c.” He did not oppose popular elections per se; indeed, they were absolutely necessary if Congress were to have the power of taxation. He just thought that people so chosen “will not be adequate to the management of affairs either foreign or federal.” Who, then, would be adequate? The Senate? The president? Other executive officers? Jefferson did not elaborate.5
