Monday, January 16, 2017

More on Hamilton, Jefferson, Burr, and the Election of 1800

Marty Lederman

Jack’s 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:

If you were to ask me who I’d promote . . .
Jefferson has my vote.
I have never agreed with Jefferson once;
We have fought on like seventy-five different fronts.
But when all is said and all is done,
Jefferson 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.

* * * *
The 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 President. 

The Democratic-Republican 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.

* * * *

So 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 . . . .

In 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 candidates!

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."

This 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.

That letter is representative of the lot, but it barely begins to scratch the surface. 

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. 

Here’s what Hamilton wrote about Jefferson in another letter to Bayard:

[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 guy. 

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 fas et nefas.  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 Chimæra.

. . . [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, Dec. 29]

■  “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]

* * * *

Sound familiar?

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.  But the 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.

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