an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
More on Hamilton, Jefferson, Burr, and the Election of 1800
post brings to mind a climactic scene
of Lin-Manual Miranda’s Hamilton, in
which Alexander Hamilton’s fellow Federalists ask him which of two
Democratic-Republican politicians—Aaron Burr or Thomas Jefferson—he would
choose to be President at the conclusion of the election of 1800.There’s a dramatic pause in the musical as the
young Republic waits with bated breath; finally, Hamilton renders
his startling endorsement:He opts for
Jefferson, his political nemesis and the very embodiment of the
Democratic-Republican party that had just routed Hamilton’s Federalists—the man
more likely than any other to vanquish virtually all the principles of
governance that Hamilton held dear:
you were to ask me who I’d promote . . .
has my vote.
have never agreed with Jefferson once;
have fought on like seventy-five different fronts.
when all is said and all is done,
has beliefs. Burr has none.
In Miranda’s telling,
Hamilton’s endorsement clinches the election:Jefferson becomes President, and Burr has to settle for Vice
President.(Then, three years later,
Vice-President Burr, understandably resentful of Hamilton’s repeated efforts to
stymie his advancement, kills Hamilton in a duel.)
Many modern viewers/listeners undoubtedly wonder what’s going on here. Once sitting President Adams, a Federalist,
had been defeated, how was it that two Democratic-Republican candidates were “tied”
in the election?Who were the
“delegates” who gathered to break the tie?Why did the loser of the delegates’ vote become Vice President?And why in the world might Hamilton’s
endorsement have been important, given that he was neither a
Democratic-Republican nor an officeholder?
Here’s a bit of an
explanation that I’m providing to my Constitutional Law class this semester.After describing how Jefferson came to be
elected, I’ll follow up with some additional remarkable passages from
Hamilton’s letters on the 1800 election—including further warnings about Burr
that are eerily resonant today.
* * * *
Constitution authorizes the state legislatures to choose the state’s presidential
electors as they see fit.As of the
fourth presidential election, in 1800, about half of the state legislatures
chose the electors themselves; in the other states, there was one form or another of
“popular” vote for electors (among white male property owners, that is).
Many (but not all) of the
Founders thought that the constitutional system would preclude the development
of partisan parties, and that the electors might therefore be, in some sense, independent. That idea, however, was basically dead on
arrival:Two dominant political parties
emerged right away, in the very first elections, and they effectively, even if
not formally, “nominated” particular candidates to be President and Vice President. The electoral campaigns, whether in the state legislatures or the among the voting public, focused on these party representatives. The parties also designated electors, chosen
largely on the basis of their party loyalty.If appointed by their state, those electors were expected to--and almost invariably did--cast their
votes for their parties’ “nominees.”
In 1800, the designated
Federalist candidates were Adams and Charles Pinckney; Jefferson and Burr were
the Democratic-Republican candidates.There were 138 total electors.The 16 states collectively chose 73 Democratic-Republican electors, and
68 Federalist electors.
Here's the strange, and unfamiliar, part: The original Constitution (Art. II, sec. 1, cl. 3) authorized the presidential electors each to vote for two persons for President. (The two-vote ballot was established in order to
maximize the possibility that at least one person would have the support of a
majority of the electors—something that might have otherwise been very unlikely
in a system, which many of the Founders envisioned, where there were no
parties, and many different individuals were “candidates” for the presidency.)Thus, in 1800 there were 276 electoral
“votes” (2x138).The Constitution further
provided that when all the electors’ votes were submitted to and counted by the
Senate, “the person having the greatest number of votes shall be the President,
if such number be a majority of the whole number of electors appointed,” but “if
there be more than one who have such majority, and have an equal number of
votes, then the House of Representatives shall immediately choose by ballot one
of them for President.”Thus, if only
one candidate in 1800 received 70 or more of the 276 electoral votes,
he would be President.If two persons received more than 70
electoral votes, the one who received more than the other would be
party plan—like that of the Federalist Party—was that almost all of its electors would cast their two votes for Jefferson and Burr.One or two electors, however, were supposed to use their second vote on someone other than Burr, so that Burr would end up with one or two votes fewer than
Jefferson, in which case Jefferson would be President, and Burr would be Vice
President.Something went awry, however,
and each and every one of the 73
Democratic-Republican electors voted for both Jefferson and Burr. (Some have speculated that perhaps the Republicans were reluctant to ask particular electors to pass over Burr, for fear that he would end up with fewer than 70 electoral votes.) Because both Jefferson and Burr received more than the requisite 70 votes, but were tied at 73, the power of
choosing between them fell to the outgoing
House of Representatives—which was still dominated by Federalists, many of whom were lame ducks.
The Constitution provided
that each state delegation in the House would have one vote in such a
tiebreaker, and that a “Majority of
all the States shall be necessary to a Choice.” There
were 16 states in 1800; therefore the candidate chosen by nine state
delegations would be President.
In the first ballot, on
February 11, 1801, eight state delegations voted for Jefferson (Georgia,
Kentucky, New Jersey, New York, North Carolina, Pennsylvania, Tennessee and
Virginia); and six states voted for Burr (Connecticut, Delaware, Massachusetts, New
Hampshire, Rhode Island, and South Carolina).The Maryland and Vermont delegations, however, were evenly divided (4-4 and 1-1,
respectively), and so neither candidate received the requisite vote of nine states.The same thing happened on a
second ballot, and a third . . . and on 35
total ballots over the course of a week.
Finally, Representative James
Bayard of Delaware—the only Delaware delegate—announced that he was switching
his vote from Burr to “abstain.”This
didn’t result in a ninth state for Jefferson, of course—but the five
Federalists who had voted for Burr in Maryland and Vermont then followed
Bayard’s lead and also abstained, which meant that those two states’ votes were
then tallied for Jefferson.With ten states now
voting for him, Jefferson became President, and Burr was the Vice President.
* * *
what did Hamilton--no longer holding office in either political branch--have to do with all of this? In order understand his role, we must, well, rewind a couple of months . . . .
early December, 1800, the electors’ votes had not yet been opened and
officially counted (something that would not occur until February 11, 1801),
but it became generally known among Federalists that the Democratic-Republican electors had screwed
up and cast 73 votes for both Jefferson and Burr, and that therefore the
outgoing Federalist-dominated House delegations would assume the power to
choose the next President—an unenviable choice between two Democratic-Republican
Correspondence among Federalists soon revealed a groundswell of support for Burr: The thinking was that Jefferson was, of course, the (brilliant and determined, and deeply ideological) enemy they knew, sure to be a disaster from the Federalist perspective, whereas there was some hope Burr would be much less effective, more manipulable, and more likely to curry favor with the Federalists. As Hamilton wrote in the December 27 letter that Jack quotes, "Several letters to myself & others from the City of Washington, excite in my mind extreme alarm on the subject of the future President. . . .[T]hose letters express the probability that the Fœderal Party may prefer [Burr]. In my opinion a circumstance more ruinous to them, or more disastrous to the Country could not happen."
prospect prompted Hamilton to (as the song says) write like he was runnin’ out
of time. Between December 16 and January
21, he penned at least a dozen letters imploring his fellow Federalists to
support his longtime nemesis, Thomas Jefferson.
Jack's post sets forth the text of the most extensive of those
letters—the one Hamilton sent on
December 27 to none other than James Bayard, the Delaware representative
whose decision to abstain would be the impetus for Jefferson’s election
by the House in February 1801.
letter is representative of the lot, but it barely begins to scratch the
For one thing, it
doesn’t quite capture why the letters were so shocking.Hamilton was urging his fellow
Federalists to give the Presidency to Jefferson, even though they
all knew that a Jefferson Administration would be led by their principal
political enemy and be devoted to undoing everything they held dear.It’s as if Barack Obama had urged Democrats
to elect, say, Mitch McConnell or Ted Cruz as President.
[I]t is too late for me to
become his apologist. Nor can I have any
disposition to do it. I admit that his
politics are tinctured with fanaticism, that he is too much in earnest in his
democracy, that he has been a mischevous enemy to the principle measures of our
past administration, that he is crafty & persevering in his objects, that
he is not scrupulous about the means of success, nor very mindful of truth, and
that he is a contemptible hypocrite.” [Moreover, “Jefferson
has manifested a culpable predilection for France.”]
That’s the guy that Hamilton was imploring Bayard and others
to support! Imagine what he must have thought of the other
Actually, there’s no need to imagine:Hamilton didn’t mince words.Notwithstanding his decidedly jaundiced view
of Jefferson, Hamilton insisted that it wasn’t even a close call—that Burr was
far more dangerous. Here are just some of the things Hamilton wrote about
Burr in the letters to his fellow Federalists. Do the descriptions remind you of anyone?:
￭“[T]there is nothing in his favour. His private character is not
defended by his most partial friends. He is bankrupt beyond
redemption except by the plunder of his country. His public principles
have no other spring or aim than his own aggrandisement per fasetnefas. If he can, he will certainly
disturb our institutions to secure to himself permanent power and
with it wealth. He
is truly the Cataline of America—& if I may credit Major
Wilcocks, he has held very vindictive language respecting his opponents.” [to Oliver Wolcott,Dec. 16]
￭ “The appointment of Burr
as President would disgrace our Country abroad. No agreement with him could be
relied upon. His private circumstances
render disorder a necessary resource. His public principles offer no obstacle. His ambition aims at nothing short of
permanent power and wealth in his own person.”[to Theodore Sedgwick, Dec. 22]
￭ “Burr loves nothing but
himself; thinks of nothing but his own aggrandizement, and will be content with
nothing, short of permanent power in his own hands.”[to Harrison Gray Otis, Dec. 23]
￭ “His ambition will not be
content with those objects which virtuous men of either party will allot to it,
and his situation and his habits will oblige him to have recourse to corrupt
expedients, from which he will be restrained by no moral scruples. To accomplish his ends he must lean upon
unprincipled men and will continue to adhere to the myrmidons who have hitherto
seconded him. . . .
Can it be doubted that a man who has all his life speculated
upon the popular prejudices will consult them in the object of a War when he
thinks it expedient to make one? Can a
man who despising democracy has chimed in with all its absurdities be diverted
from the plan of Ambition which must have directed this course? They who suppose it must understand little of
human nature.”[to Oliver Wolcott, late Dec.]
￭ "[T]his man has no principle public or
private. As a politician his sole spring
of action is an inordinate ambition; as an individual he is believed by friends
as well as foes to be without probity, and a voluptuary by system, with habits
of expence that can be satisfied by no fair expedients. As to his talents, great management &
cunning are the predominant features—he is yet to give proofs of those solid
abilities which characterize the statesman. . . .
The maintenance of the existing institutions will not suit him, because under
them his power will be too narrow & too precarious; yet the innovations he
may attempt will not offer the substitute of a system durable & safe,
calculated to give lasting prosperity, & to unite liberty with strength. It
will be the system of the day, sufficient to serve his own turn, & not
looking beyond himself. To execute this plan[,] as the good men of the country
cannot be relied upon, the worst will be used.
Let it not be imagined that the difficulties of execution will deter, or a
calculation of interest restrain. The truth is that under forms of Government
like ours, too much is practicable to men who will without scruple avail
themselves of the bad passions of human nature. To a man of this description
possessing the requisite talents, the acquisition of permanent power is not a
. . . [H]e cannot be satisfied with the regular emoluments of any office of our
Government. Corrupt expedients will be to him a necessary resource. Will any
prudent man offer such a president to the temptations of foreign gold? . .
Let me add that I could scarcely name a discreet man of either
party in our State, who does not think Mr Burr the most unfit man in the U. S.
for the office of President. Disgrace abroad ruin at home are the probable
fruits of his elevation.
For Heaven’s sake my dear Sir, exert yourself to the utmost to
save our country from so great a calamity. Let us not be responsible for the
evils which in all probability will follow the preference [for Burr]. All
calculations that may lead to it must prove fallacious."[to James Bayard, Dec. 27]
￭“Of an ambition too
irregular and inordinate to be content with institutions that leave his power
precarious, he is of too bold and sanguine a temper to think any thing too
hazardous to be attempted or two difficult to be accomplished.
As to [his] talents they are great for management and
intrigue—but he is yet to give the first proofs that they are equal to the art
of governing well.
As to his theory, no mortal can tell what it is. Institutions
that would serve his own purpose (such as the Government of France of the
present day) not such as would promise lasting prosperity and glory to the
Country would be his preference because he cares only for himself and nothing
for his Country or glory.
Certain that his irregular ambition cannot be supported by good men,
he will court and employ the worst men of all parties as
the most eligible instruments. Jacobinism
in its most pernicious form will scourge the country.
As to foreign policies, War will be a necessary mean of
power and wealth. The animosity to the British will be the handle by which
he will attempt to wield the nation to that point: Within a fortnight he has
advocated positions which if acted upon would in six months place us in a state
of War with that power.”[to James Ross,
￭ “As to Burr these things are admitted and indeed cannot be
denied, that he is a man of extreme & irregular ambition—that
he is selfish to a degree which excludes all social affections
& that he is decidedly profligate. . . .
[I]t is said . . .
that he holds no pernicious theories, but is a mere “matter of fact man.”
But is it a recommendation to have no theory? Can that man be
a systematic or able statesman who has none? I believe not. No
general principles will hardly work much better than erroneous ones. .
. . Ambition without principle never was long under the guidance of good
sense.” [to James Bayard, Jan. 16]
* * * *
It’s easy to see, from these remarks, why Hamilton was so eager—desperate,
even—to throw in his lot with the despised Jefferson.As Hamilton wrote to Gouverneur Morris on December 26:
“If there be a man in the world I ought to hate it is
Jefferson. With Burr I have always been personally well.
Butthe public good must be
paramount to every private consideration.”
Words of wisdom that current legislators would
be wise to heed.
* * * *
I am not aware of
any evidence that Hamilton continued to lobby his fellow Federalists in
February, as they deliberated and voted, and it's uncertain how much influence he had on the Federalists' votes in the House. Bayard did, after all, vote for Burr 35 times before
abstaining.So perhaps Hamilton’s choice
did not have quite the decisive impact that Lin-Manuel Miranda suggests.On the other hand, perhaps it did. (Ron Chernow speculates that Bayard was "[p]erhaps softened up by Hamilton's diatribes." And Burr never came close to securing the votes of nine state delegations.) At a minimum, it appears likely that Hamilton's letters offered Federalist Representatives plenty of reasons to be wary of casting their votes for Burr--and some cover for voting for Jefferson.