The Magazine

Down to the Wire

If you think 2000 was a cliffhanger, try 1800.

Mar 17, 2008, Vol. 13, No. 26 • By JAMES M. BANNER JR.
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The necessity of turning to the House to choose a president precipitated the election's great crisis. By another quirk of the untried Constitution (which would be later amended also in this respect), the new Congress elected in 1800, overwhelmingly in the hands of Jefferson's party, would not convene until late 1801. The choice between Jefferson and Burr thus fell to the old House, one under the control of the defeated Federalist party. This presented the House and its members with no end of decisions to make, some of them juicily partisan, all of them gravely constitutional. To make matters worse, the outgoing House had to make its choice between early February 1801, when it convened, and March 4, at that time the date on which one administration was required under the Constitution to give way to another.

Under procedures set forth in the Constitution, voting in the House took place by state, each state having a single vote. The House delegations of 8 of the nation's 16 states were solidly in Jefferson's camp, the remaining eight either under Federalist control or evenly split. The trouble was that the votes of an absolute majority of states--in this case--were necessary to elect a president. The Federalists thus saw an opening, not only to make mischief but also, in their view, to save the republic from their opponents. So they decided to hold out to bring in Burr under some kind of agreement. This may seem like an unsurprising, if dangerous, political game today; but in those days such political deals were rare and a deal concerning a presidential election unprecedented.

Federalists were themselves of divided mind. For many of them, however tempting might be the bait of substituting Burr the New Yorker for Jefferson the people's choice, to approach Burr was like courting the devil himself. For Democratic-Republicans, to allow the people's will to be set aside was to invite nothing less than the corruption of the infant constitutional regime.

This doesn't mean that American constitutional government would have ended then and there had Thomas Jefferson been denied office. But it does mean that two possibilities, one putting the nation on a footing with others, the second obnoxious to the Federalists, hung in the air. The first was armed intervention by forces loyal to the Democratic-Republicans in the manner of other regimes, then and now. The governors of Virginia and Pennsylvania refused to deny rumors that, were the people's will thwarted, their militias would march on Washington to enforce it.

The second possibility--and the Federalists' darkest fear--was that the Democratic-Republicans might convene a second constitutional convention. In that event, the constitution emerging from that second convention would have been signally different from the Constitution we know now--and different in ways the Federalists deeply feared: one with a weaker president and court system and a greatly strengthened Congress.

This situation was ideal for some kind of political deal. We'll never know precisely what was suggested to whom in whose name and with what provisions. All involved covered their tracks and denied that any kind of agreement to accede to Jefferson's election was entered into. But some kind of arrangement surely was concluded--one made essential when Burr, while desiring to gain the prize, remained adamant that he wouldn't accept the presidency unless free of obligations to the Federalists.

The arrangement concluded by go-betweens was to assure the Federalists (without Jefferson's saying or writing a word to lend credence to the fact) that Jefferson wouldn't overturn Federalist policies or turn out Federalist officeholders wholesale upon taking office. That tacit understanding was enough to convince one Federalist, in particular, that he should no longer stand in the way of Jefferson's election but, instead, move to end the crisis.

That man was James Bayard of Delaware, his small state's sole congressman. Bayard precipitated Jefferson's election on the 36th House ballot by withholding his vote from Burr and leading a few other Federalists to do so as well, thus allowing Jefferson to be elected by the requisite majority of states. Bayard took this step, he explained, so as "not to hazard the constitution." It was an act, one of the most important and statesmanlike in American history, that effectively put an end to his party's chances of ever winning the presidency or holding a majority in Congress again. By 1825, the Federalist party was effectively dead.