Copyright Date: 2005
Published by: Harvard University Press
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  • Book Info
    Book Description:

    Based on seven years of archival research, the book describes previously unknown aspects of the electoral college crisis of 1800, presenting a revised understanding of the early days of two great institutions that continue to have a major impact on American history: the plebiscitarian presidency and a Supreme Court that struggles to put the presidency's claims of a popular mandate into constitutional perspective. Through close studies of two Supreme Court cases, Ackerman shows how the court integrated Federalist and Republican themes into the living Constitution of the early republic.

    eISBN: 978-0-674-02005-4
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. [i]-[vi])
  2. Table of Contents
    (pp. [vii]-[x])
  3. PART ONE The People’s President
    • INTRODUCTION: America on the Brink
      (pp. 3-15)

      For a week in February 1801, America teetered on the brink of disaster. The electoral college had deadlocked, and the job of picking the next president fell to the House of Representatives. Vote after vote was leading nowhere—after thirty-five ballots, still no president of the United States.

      Inauguration Day was less than three weeks away. President John Adams’s term would end, and the Constitution did not specify what was to happen next if the impasse in the House continued. For ordinary Americans, it was clear enough what ought to happen: the Republican party and its presidential candidate, Thomas Jefferson,...

    • 1 The Original Misunderstanding
      (pp. 16-35)

      Begin with the Founding, and its Enlightenment pretensions. The Constitutional Convention had its share of compromises, but it was also betting on ideas. Men like James Madison and James Wilson were trying to base their constitution on the best political science of their time. But this simple point provokes an unasked question: What if the Framers’ political science turned out to be just plain wrong?

      The Answer Could Be Crisis. If The Founding Scheme Was A Clever Effort To Design An Institutional Machine In The Light Of Scientific Predictions About American Politics, The Machine Could Easily Run Amok If The...

    • 2 John Marshall for President
      (pp. 36-54)

      The lame-duck Congress was the first to forsake cosmopolitan Philadelphia for the humble village that bore the proud name of Washington. Albert Gallatin, the sober leader of the House Republicans, described the dismal scene to his wife: “Our local situation is far from being pleasant or even convenient. Around the Capitol are seven or eight boarding-houses, one tailor, one shoemaker, one printer, a washing-woman, a grocery shop, a pamphlets and stationery shop, a small dry-goods shop, and an oyster house. This makes the whole of the Federal city as connected with the Capitol.”¹

      The lame-duck session began on November 22,...

    • 3 Jefferson Counts Himself In
      (pp. 55-76)

      With Federalists and Republicans preparing themselves for extreme measures, Congress settled down for the formal count of electoral votes on February 11, and it immediately confronted a surprise. When the president of the Senate opened the envelope containing Georgia’s four electoral votes, the ballot paper was blatantly irregular.

      Nobody expected this. The newspapers had confidently placed Georgia in the Republican column, and nobody had raised the issue in private correspondence. If Georgia’s voting papers were disqualified, it would make a big difference in the upcoming House runoff. Under the Constitution’s ground rules, Jefferson and Burr could not exclude their Federalist...

    • 4 On the Brink
      (pp. 77-92)

      Jefferson’s decision to count the Georgia ballot eliminated a time bomb, but it didn’t resolve the basic problem posed by the Founding misdesign of the electoral college. Despite the expectations of ordinary Americans, Jefferson still wasn’t president. He remained in a dead heat with Burr, and it was up to the House to pick the winner. The Constitution optimistically instructed the House to act “immediately,”¹ but it would take six bitter days before Jefferson emerged with the victory.

      Conventional accounts focus on the wheeling and dealing that finally led to Jefferson’s defeat of Burr on the thirty-sixth ballot. But this...

    • 5 What Went Right?
      (pp. 93-108)

      The constitutional miracle, if there was one, did not happen in the Philadelphia of 1787 but in the Washington of 1801. It is one thing to write a Constitution; quite another for it to survive; and still another for it to survive in a world for which it was not designed. And yet on March 4, 1801, John Marshall swore in Thomas Jefferson as the third president of the United States. The Federalists weren’t particularly good sports: Marshall turned his back on Jefferson during the inaugural ceremony, and Adams refused to attend, riding out of town at four o’clock in...

  4. PART TWO The People and the Court
    • INTRODUCTION: Constitutional Brinksmanship
      (pp. 111-115)

      After taking his oath of office, Thomas Jefferson used his Inaugural Address to reflect upon the remarkable character of his victory: “During the contest of opinion through which we have passed, the animation of discussions and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the Constitution, all will, of course, arrange themselves under the will of the law, and unite in common efforts for the common...

    • 6 Federalist Counterattack
      (pp. 116-141)

      Return to the 1800 election one last time, but from a different constitutional angle. We have been observing the Federalists in Washington flirting with a strategy that would deadlock the House, and transform John Marshall into the next president, without focusing on a rather obvious question: Why would the Constitution give the folks who had lost the election the right to stay in power for three months to make so much mischief?

      Modern constitutions don’t make this mistake. Once the powers that be lose an election, they are quickly sent packing, so that the repudiated incumbents can’t do any serious...

    • 7 Republican Triumph
      (pp. 142-162)

      The Founders did not anticipate a two-party system, but they did expect noisy and selfish factions to arise in the popular House of Representatives. Their remedy was the separation of powers: with presidents and senators selected indirectly, and for more extended terms, the demagogic tendencies of the House would be checked and balanced by cooler heads elsewhere.

      This Founding aspiration had failed its first great test. The Republicans’ triumph had been especially impressive in the newly elected House, where they would outnumber their rivals by 69 to 36. But as a result of Bayard’s statesmanship and Adams’s political blunders, both...

    • 8 Marbury v. Stuart
      (pp. 163-198)

      “Mr. Ross calls to tell me he is advised that the Chief Justice is disposed to go quite as far as we could wish,” Gouverneur Morris confided to his diary on April 5, 1802¹—the very day the Republicans were ramming their second judiciary bill, abolishing the Court’s June session, through the Senate over the opposition of Federalists like Ross and Morris.² Morris’s diary confirms Congressman Rutledge’s letter, two weeks earlier, reporting Marshall’s assurance “that the firmness of the Supreme Court may be depended on.”³

      Marshall is giving every sign of reenacting his familiar role as Federalist partisan. Just as...

    • 9 Presidential Purge
      (pp. 199-223)

      As John Marshall was building upMarbury’smeaning on a mountain of judicial silences, Thomas Jefferson was dominating the constitutional stage.

      Even beforeStuarthad sealed the fate of the circuit judges, Jefferson opened up a new campaign against the Federalist judges who remained on the bench.¹ The campaign reached its climax with the impeachment of Justice Samuel Chase by the House and his narrow acquittal by the Senate. If a few votes had gone the other way, the next man on the firing line would have been John Marshall, the greatest of the midnight judges. Chase’s acquittal marked a...

    • 10 Synthesis
      (pp. 224-244)

      The Chase acquittal was a turning point but by no means the ending point of the Jeffersonian revolution in constitutional law. TheStuart-Marburysynthesis threatened to unravel as congressional Republicans made serious, if unsuccessful, efforts to overturn it by constitutional amendment. And Jefferson was sorely tempted to return to the impeachment wars, but never found a propitious moment.

      Jefferson was having greater success with a subtler strategy, and one he forcefully urged upon his successor, James Madison. Both men tried to deprive Marshall of his majority on the Court by appointing solid Republicans when vacancies opened up. They sometimes faltered,...

    • 11 Reverberations
      (pp. 245-266)

      America has two Constitutions, both with roots in the early republic. The history of one begins in 1787; the history of the other, in 1800. The first Constitution emphasizes the place of Congress in our political life; the second, the place of the president. The first gives center stage to congressional notables, politically responsive to their local communities; the second, to presidents claiming a popular mandate on the basis of their party’s nationwide victory. The first relies on Congress to enact constitutional amendments when the original design needs correcting; the second relies on the Supreme Court to weave the mandate...

    • Horatius’s Presidential Knot
      (pp. 269-275)

      This essay by “Horatius” does not explicitly name John Marshall. It simply advocates the statutory creation of an interim presidency to resolve the electoral college crisis. But Marshall’s stake in the matter would have been obvious to all contemporary readers.

      When Horatius insists that Congress can only designate an “officer of the United States” as interim president, he effectively eliminates most contenders for the position, privileging the claims of the most senior “officer[s] of the United States”: the secretary of state, the senior member of the executive branch; and the chief justice, the senior judicial officer. At the time of...

    • Judge Bassett’s Protest
      (pp. 276-297)
      Richard Bassett

      Judge Bassett appeals to the Supreme Court to disobey Congress’s command to resume circuit-riding, and urges it to strike down the congressional statute that destroyed his court.

      TheProtestis written in the form of a judicial opinion that fits squarely within the jurisprudential framework later developed by Marshall in Marbury v. Madison. For Bassett, as for Marshall, the Constitution’s claim to higher law status is grounded in the will of the People, not on natural law. For both men, courts are drawn into the business of judicial review as part of their obligation to decide concrete cases according to...

  6. NOTES
    (pp. 298-366)
    (pp. 367-368)
  8. INDEX
    (pp. 369-384)