How We Learned to Love the Constitution
by James M. Banner Jr. on Feb 13, 2001
This week marks the two hundredth anniversary of the election of Thomas Jefferson as president of the United States. Jefferson’s election is generally conceded to have initiated the dominance of enduring traits of American political culture: a strong suspicion of government, an accompanying spirit of liberal capitalism, a sweeping ideology of democracy (if only, at first, for white males), continental nationalism and an emphasis upon free trade.
But the election of 1800 was also notable for other reasons. It was one of the few presidential elections, like the one just past, that failed to produce a certain and clear finality. But the contest 200 years ago was unlike all others in a single respect: it inaugurated our love affair with the Constitution.
The election of 1800 produced a constitutional crisis, the gravest in our history except for that of 1860. The crisis occurred because of a constitutional anomaly. The original Constitution of 1787 did not require, as did a tardy amendment in 1804, that Electoral College members vote first for candidates for president and then separately for candidates for vice president. When the electoral votes were tallied in December 1800, the Democratic-Republican ticket of Thomas Jefferson and Aaron Burr had soundly defeated the Federalist ticket of John Adams (the incumbent president) and Charles Cotesworth Pinckney, 73 to 65. The trouble was that Jefferson and Burr had both received the same number of votes. Because of this, the election had to be decided by the House of Representatives.
Like either candidate last fall, Burr could have resolved the unintended deadlock by simply withdrawing his name from contention for the presidency. But, opportunistic to a fault, he did not do so. As a result, the Federalist Party, political home of Adams and Alexander Hamilton, was in a perfect position to make mischief by throwing its support to Burr so as to prevent Jefferson’s election by the House.
To resolve an electoral vote deadlock, the House, then as now, voted by states, not individual members. Election required the votes of a simple majority of states; in 1801, Jefferson needed the votes of nine of the sixteen states to be elected. But only eight states were firmly in his camp. Here was the trouble, and the Federalists made the most of it.
Unlike the crisis this past fall, which was settled by the courts, the crisis of 1801 could be settled constitutionally only by the House. And the Federalists would not let that happen. For 35 ballots, stretching over six days beginning on February 11, the House voted and voted again, each time with the same result — too few states to put Jefferson over the top. Ill members arrived on stretchers; others slept in the House chambers. Rumors spread that armed units loyal to Jefferson were gathering to ensure his election. Yet no one would budge.
Finally, after the thirty-fifth ballot, a single Federalist, James A. Bayard, Delaware’s sole representative, took a crucial step. He announced to his Federalist colleagues that on the next vote he would withhold his state’s vote from Burr. Bayard’s decision prompted enough other Federalists to withdraw their votes from Burr so that, on February 17, the Squire of Monticello attained the majority of states he needed for election. Roughly two weeks later, on March 4, he was duly inaugurated third president of the United States. Constitutional breakdown, and perhaps armed conflict, had been averted.
Historians like to emphasize that February 17, 1801, marked the triumph of new ways — Jeffersonian ways — of seeing ourselves and the world, ways that remain with us still. But something else also happened that winter day. When pressed to explain his action, Bayard, the Federalist who had given the opposition its victory, said that he had acted “so as not to hazard the Constitution.”
Despite the cost to his own party (which never recovered from its defeat) and to himself (he lost his House seat in the next election), Bayard had elevated the Constitution above considerations of party or self. He had made the Constitution the stated measure of law and politics. No one had ever done that before. Bayard’s was the first act of pure constitutionalism — putting the Constitution above considerations of person or party — in American history.
Bayard cleared the way for Chief Justice John Marshall’s great 1803 decision of Marbury v. Madison, the first to strike down a provision of federal law as unconstitutional. It was the supremacy of the Constitution, claimed by Bayard and Marshall in their respective acts, that was at stake again in 1860 when the South seceded, and the Civil War painfully validated that supremacy.
We take for granted these days appeals to the Constitution, both sincere and demagogic. Last fall, all factions appealed to constitutional rectitude, constitutional tradition, constitutional right. Those appeals, even when lacking sincerity, owed much to the act of a single man from a small state long ago. As the turbulent but peaceful resolution of the electoral confusion last fall demonstrates, the Constitution’s supremacy remains the bedrock of our political life.
James M. Banner, Jr. a historian in Washington, D.C., was co-founder of the History News Service. He is most recently the editor of A Century of American Historiography (2009).