The Magazine

Who’s on First?

The year Delaware made history.

May 16, 2011, Vol. 16, No. 33 • By JAMES M. BANNER JR.
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In only two respects does this otherwise fine work offer less than it might have. The first concerns Delaware’s Federalist congressman James A. Bayard, who deserves to be brought into the limelight more fully than Sharp does. As Sharp indicates clearly enough, Bayard, his state’s sole congressman, was key to resolving the deadlock in the House of Representatives by breaking with his Federalist colleagues and, in withholding Delaware’s vote, allowing Jefferson to be elected by the requisite majority of states voting. While it has never been entirely clear why Bayard did so, many have since thought that he convinced himself (or was misled by others to think) that Jefferson, wanting as much as anyone else to end the electoral deadlock, had sent signals that he would not overturn some key Federalist policies. But evidence also exists that Bayard, an attorney and formerly a close House associate of John Marshall before Marshall went to the Supreme Court as chief justice, was a firm constitutionalist as well as a moderate Federalist. After he’d broken the deadlock in the House, he explained that he’d acted out of “imperious necessity” so as “not to hazard the Constitution.” Bayard’s claim can surely be taken to be self-serving; but might it not also reveal the man’s true grit and a new kind of commitment—one to the Constitution, above all?

Whatever Bayard’s true motives, it turns out that he was willing to risk his future electoral chances in Delaware (and to allow the election of a man whom he strongly disliked) in order to resolve the constitutional paralysis. And so Bayard deserves more admiration for his statesmanship than Sharp and most other historians give him. He was key to ending a crisis that was directly threatening the young constitutional regime of 1787. Even had armed forces not been marshaled to enforce Jefferson’s election in the event of the government’s paralysis lasting beyond Inauguration Day, it remained possible that calls would have gone out for another constitutional convention, the Federalists’ worst fear. Had another convention met, the Constitution of 1787 would no doubt have been jettisoned in favor of a different form of government, and the United States would have begun its early political life in the pattern of other nations: one constitution after another. (Remember that the Constitution of 1787 was already the second of two, the Articles of Confederation having been the first.) That it did not can be credited in significant measure to James Bayard.

Along these lines, then, a second line of argument—or at least of speculation—opens before us. What, if any, were the constitutional consequences of the solution to the deadlock of 1801? The preserved record offers little help. But Sharp might have posed the question—one that, it should be said, no other historian has posed, either: Might not John Marshall have discerned in the election’s outcome, and Bayard’s act, something that has eluded historians? Not until Bayard’s switch in 1801 was the Constitution of 1787 vindicated in all its initial authority; not until the election of Marshall’s cousin and fellow Virginian, Jefferson (whom Marshall roundly disliked; he was disliked by Jefferson in return), can it be said that the Constitution had been put to the test and, in the nick of time, been found up to the task. 

What did Marshall make of this fact? We don’t know. Yet we can see now that his friend Bayard had made of the still-young Constitution a rock on which to build. He had established a new rule: that in a contest between parochial politics and the Constitution, the Constitution must win. In a way not available before, the Constitution was now open to interpretation in the confidence that it, rather than parties or individual political figures, had gained the highest standing in American governance. Bayard had opened a new phase of American constitutionalism. The lesson could not have been lost on Marshall, who soon delivered the Supreme Court’s pathbreaking opinion in the Marbury case that gathered for the Court the authority to declare acts of Congress unconstitutional. And it would not be lost, in subsequent years, on Andrew Jackson and Abraham Lincoln.

In a very direct sense, then, the survival of the Constitution was one result of the election of 1800. No less consequentially, as Sharp emphasizes, the election ushered into office a Jeffersonian regime that determined the course of American government, the nature of American culture, the fate of African Americans, and the geographic reach of national authority for the next 60 years of American history—and in some respects, for all time. Small-government market capitalism thereafter became the ideological norm against which much of American public policy would be measured well into the 20th century. With the help of the three-fifths clause, the South gained a chokehold on the presidency and Congress until Lincoln’s election took the nation into a new era for all time. Slavery was given six more decades to strengthen itself in the Old South and in the states carved out of the Old Southwest and across the Mississippi in the Louisiana Territory. The purchase of that vast terrain in 1803 at a stroke doubled the size of the young nation, greatly enlarged its agricultural might, expanded the areas into which slavery would advance, and set the final stage for the nation’s eventual spread from eastern to western sea. And with ideological sustenance from Jefferson and his followers, white manhood suffrage became nearly universal by 1840. In short, the election of 1800, by creating the first long-lived alignment of political forces in America’s history, laid the groundwork for the nation’s emergence as a slaveholding, agrarian, male-democratic, continental colossus.

Both Jefferson and his enemies realized as much. The Squire of Monticello famously termed his election the “revolution of 1800.” A Federalist opponent, calling it “a great moral revolution,” agreed. But that revolution was no sure thing. Only by a series of fortuitous events and circumstances, as Sharp so well explains, did a few American officeholders step up to the brink of disaster—and then draw back from it in a way that preserved the constitutional government’s integrity for 60 more years.

James M. Banner Jr. is a cofounder of the National History Center and, most recently, the editor, with John R. Gillis, of Becoming Historians, a set of memoirs by 11 historians.

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