Some Trump supporters and advisers have suggested that if the certification of the 2020 election can be delayed beyond Dec. 8, Republican-controlled state legislatures could step in to name their own set of presidential electors who would cast their Electoral College votes for Donald Trump, not the individual who appears to have won the election in those swing states. Others have speculated that perhaps electors might be persuaded to vote for Trump in spite of the expectation that they would cast their ballots faithfully for the winner in their states. In the minds of some diehard Trump supporters, including individuals at the highest reaches of the Congressional establishment, whatever it takes to get Mr. Trump to 270 Electoral College votes is fair game.
There is nothing illegal about these contrivances. In fact, the Founding Fathers actually intended the nation’s Electoral College electors to be somewhat independent of the will of the majority. Nothing in the Constitution itself requires the electors to vote for the winner of the popular vote in their state. It was assumed that they would routinely do so, but the Founders posited that if “the people” voted for a person the electors thought was unsuited for the presidency, they could use their discretion to advance the prospects of someone else. Most states now have laws requiring the electors to endorse the winner of the election in their state, but it is at least possible that what are known as “faithless electors” could award the presidency to Donald Trump rather than Joe Biden, who won the national popular vote by more than 5.6 million votes.
There are lessons for them — and those who oppose them — in the election of 1800, generally considered to be the nastiest in American history.
The Chaotic Election of 1800
It might be useful to examine another such moment in American political history, the tumultuous presidential election of 1800, in which the challenger Thomas Jefferson of Virginia unseated his old friend, now his rival, the incumbent President John Adams of Massachusetts.
The election of 1800 was one of the most contested and vituperative elections in American history. The incumbent John Adams was not well liked, even by his fellow Federalists. His craggy independence and his inconsistent handling of the quasi-war with France (an undeclared naval war) had perplexed almost everyone in the United States. He was being characterized by the emerging Republican Party (no relation to today's) as a monarchist and a lover of aristocracy, and he stubbornly refused to clarify his views or campaign for re-election in any way. His challenger Thomas Jefferson was regarded by his admirers as a “friend to liberty” and a “friend of the people,” an advocate for severely limited government, isolationism, fiscal responsibility, and states’ rights. Jefferson was characterized by his detractors as a political radical and demagogue who had spent too much time in revolutionary France, where he served as the American minister between 1784-89.
In the end, Jefferson defeated Adams in the Electoral College 73 to 65. Adams skulked out of Washington, D.C., on the dawn stage on March 4, 1801, to avoid seeing Jefferson installed in his place. Adams was actually less angry at Jefferson than at the American people, for retiring him after a single term.
Aaron Burr’s Victory in New York
For Jefferson to win the election of 1800, he would need all or most of the Electoral College votes in the southern states, some votes in the middle states, and most of all New York. It was expected that Adams would win all of New England’s Electoral College votes, perhaps a few in South Carolina, and several middle states. New York would determine the election. At that early point in American political history, there was no common date for national elections. Each state had its own system and its own election calendar. It wasn’t until 1845 that Congress determined that the presidential election would be held on the first Tuesday following the first Monday in November.
Because they must win New York to win the 1800 election, the Jeffersonian Republicans selected Aaron Burr to be Jefferson’s running mate (though Jefferson never really trusted him), knowing that Burr would work tirelessly to deliver New York’s electors, if only out of self-love. In an era when men of political ambition had to pretend that they were high-minded gentlemen and that politics was a vulgar business beneath their dignity, Burr was a candid political opportunist, who gleefully engaged in the kind of ward and street electioneering that we associate with modern politics.
Burr ran an outstanding campaign against the aloof and self-restrained Federalists under the leadership of Alexander Hamilton. He out-maneuvered Hamilton at every turn. He transformed his own house in lower Manhattan into an election headquarters, threw down mattresses in some of the rooms so his hectic operatives could rest, and maintained an open refreshment table, so that he could maintain party discipline and concentrate on getting tradesmen, craftsmen, small business owners, and others normally ignored by both parties to the polls.
Aaron Burr, mastermind behind Jefferson's electoral victory in New York.
In the May 1800 election that determined who would be New York’s presidential electors in the fall, Burr won a stunning insurgent victory that appalled the New York Federalist establishment, partly because it felt to them like a violation of the code of respectability. But the simple fact is that Burr outsmarted, out-maneuvered, and out-hustled Hamilton, who never quite got over it. One contemporary reported that after the election results were known, “Hamilton exhibits a figure of rage and despair.”
Alexander Hamilton’s Infamous Letter
In the wake of the election, Hamilton, perhaps the single most brilliant public figure of the founding generation, convened a caucus to assess the situation and determine if something could be done to forestall the election of Jefferson. The anti-Federalist newspaper the Aurora noted, “when it was urged that it [stealing the election after the fact] might lead to a civil war… a person present observed that a civil war would be preferable to having Jefferson.” That’s how passionate the politics of the early national period could be.
Under Article II, Section 1 of the Constitution, each state is empowered to determine its own method of choosing electors for the presidential election. In that bit of ambiguity, Hamilton saw a path to defeat Jefferson after the fact. Hamilton, the undisputed leader and political strategist of the Federalist Party, now a private citizen in New York pursuing a lucrative career as a lawyer, wrote a letter that has done more to damage his historical reputation than anything else he did in his extraordinary life. The letter was addressed to his friend John Jay, the governor of New York.
Jay had been a delegate to the First Continental Congress in 1775, where he spoke against separation from Great Britain. He despised the people, arguing that “those who own the country ought to govern it,” and that “the wise and the good” should do everything they can to prevent the ascendancy “of the wicked and the weak.” He had, moreover, negotiated a compliant 1795 commercial treaty with Great Britain now known as Jay's Treaty, which made him a hated figure in southern and western circles and for which he was burned in effigy throughout the United States. He was, in short, no democrat and no admirer of Thomas Jefferson.
John Jay, governor of New York, played a role in Hamilton's attempt to throw the election of 1800.
In his letter to Jay on May 7, 1800, Hamilton urged the governor to call a special session of the outgoing, lame-duck, Federalist-dominated New York Legislature to change the method of choosing New York’s electors so that the just-elected Republican (Jeffersonian) Legislature would not be able to select them in the fall of the year. Hamilton knew he was suggesting an unethical and anti-democratic stunt to avoid accepting the will of the people of New York. “I am aware,” he wrote, “that there are weighty objections to the measure; but . . . in times like these in which we live, it will not do to be overscrupulous. It is easy to sacrifice the substantial interests of society by a strict adherence to ordinary rules.” In other words, winning is sometimes more important than adhering to established American norms.
Then, to cover his tracks, Hamilton wrote, “In observing this, I shall not be supposed to mean that anything ought to be done which integrity will forbid—but merely that the scruples of delicacy and propriety, as relative to a common course of things, ought to yield to the extraordinary nature of the crisis.” It turns out that every American election is “the most important in our history.” The rules that apply in the “common course of things” should not apply when so much is at stake.
In his appeal to Gov. Jay, Hamilton said he could not countenance “an Atheist in Religion, and a Fanatic in politics” as the next president. Jefferson was neither of these things. He was a deist (God as physicist and clockmaker) and as time went on a unitarian, but he was never an atheist. In politics, although he was a utopian pragmatist and his dream of a Virgilian agrarian republic was more poetic than practical, Jefferson was never a fanatic. Warming to his theme, Hamilton told Jay that some members of Jefferson’s party advocated “the overthrow of the government by stripping it of its due energies, others . . . a revolution after the manner of Buonaparte.” None of this was true, of course, but Hamilton needed some alternative facts to justify his rash proposal. This was no time for ethical fastidiousness, Hamilton said, “and it seems to me that there is a very solemn obligation to employ the means in our power.” Hamilton told Jay that while his proposed maneuver was of questionable propriety, “the reasonable part of the world will, I believe, approve it.”
Hamilton’s father-in-law Philip Schuyler wrote his own letter to Gov. Jay endorsing Hamilton’s plan to steal the election. He admitted that although such a Machiavellian maneuver would cause some “embarrassment,” it was justified given the amount of “mis-rule” the country could expect from Jefferson.
Hamilton’s early 20th-century biographer Henry Cabot Lodge (a Hamiltonian, and the best friend of a greater Hamiltonian Theodore Roosevelt) concluded: “The proposition was, in fact, nothing less than to commit under the forms of law a fraud, which would set aside the expressed will of a majority of voters in the state [of New York].”
Governor Jay never answered Hamilton’s letter. But on the back of the letter he wrote, “Proposing a measure for party purposes which it would not become me to adopt.” Jay was a high Federalist who despised Jefferson’s politics (though not the man), but he refused to countenance Hamilton’s irresponsible proposal. Even Hamilton’s most generous biographer Ron Chernow was harsh in his judgment: “Hamilton’s appeal may count as the most high-handed and undemocratic act of his career.”
The Enemy of My Enemy
This story ends in varieties of irony. Hamilton could not abide Jefferson, but he knew that Jefferson was a fellow gentleman who could be counted on to adhere to the Constitution in his administration of the country. Hamilton hated Burr, whom he regarded as a dangerous self-promoter and a rash adventurer who had no respect for constitutional niceties or the code of gentlemanly behavior. Hamilton didn’t like or respect John Adams either. In fact, he wrote a 58-page pamphlet disparaging his party’s nominee entitled, Concerning the Public Conduct and Character of John Adams, Esq. President of the United States. Although the pamphlet was intended to be quietly circulated among Federalist political leaders, it was leaked to the press and published before the election. Naturally, this enraged Adams, who called Hamilton the “bastard brat of a Scotch pedler [sic],” and delighted the Jeffersonians, who watched the Federalist Party self-destruct before their eyes.
Jefferson defeated Adams in the election, but he tied with his running mate in the Electoral College with 73 votes. That threw the election of 1800 into the House of Representatives, where a number of Federalists decided to press for the election of Burr, whom they thought they could manage or even induce to embrace their political point of view, rather than Jefferson, whom they knew they could not possibly control. The tie thus precipitated the first constitutional crisis in American history, when the party that lost attempted to supplant the duly elected president to preserve their power and place in the national government. In fact, the crisis might have led to civil war. Gov. James Monroe of Virginia was prepared to invade the national capital, if necessary, to take back the election for Jefferson.
Burr-Hamilton duel on the west bank of the Hudson River at Weehawken, N.J., on July 11, 1804. Hamilton purposely missed, but Burr shot to kill his adversary.
When Hamilton learned of the Federalist efforts to form an alliance with Burr, he threw his considerable political weight behind his old enemy Jefferson. In a letter to James Bayard of Delaware, dated Jan. 16, 1801, Hamilton argued that all responsible men must prefer Jefferson to Burr, even though “I admit that his [Jefferson’s] politics are tinctured with fanaticism, that he is too much in earnest in his democracy, that he has been a mischievous enemy to the principal 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.” Amazing: that’s Hamilton’s characterization of the man he preferred! Of his personal and political enemy Burr, Hamilton wrote, “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.” Burr was, said Hamilton, “inferior in real ability to Jefferson.”
This would seem to reinforce the adage that the enemy of my enemy is my friend. Seldom has any political candidate been damned with such faint praise. Hamilton was right about Jefferson in one key respect, however. He told Bayard that Jefferson “is as likely as any man I know to temporize—to calculate what will be likely to promote his own reputation and advantage; and the probable result of such a temper is the preservation of systems, though originally opposed, which being once established, could not be overturned without danger to the person who did it. To my mind a true estimate of Mr. J.’s character warrants the expectation of a temporizing rather than a violent system.” In other words, Jefferson was unlikely to destroy the fiscal system Hamilton had devised for the United States or eliminate the army and navy (as many Federalists feared). Jefferson’s ideas and ideals were always more visionary than his actions. He turned out to be a decidedly moderate president, and some historians have even said he proved to be a quasi-Hamiltonian in his administration actions.
The Two U.S. Constitutions
What this extraordinary story tells us is that we have two constitutions — the capital "C" Constitution drafted in 1787, ratified in 1788, and amended just 27 times in the course of American history. That Constitution is a brief document of just 4,543 words, which provides a general recipe for American governance but declines to specify exact procedures for many important American political institutions. Many provisions were left, as one historian puts it, in “studied ambiguity.”
Then there is the lowercase "c" constitution of the ways and means and norms that have emerged in the 232 years since ratification, including the cabinet, executive orders, executive privilege, senatorial courtesy, and much more. Those constitutional norms include the gracious concession of the loser in a presidential election, cooperation in the transition from one administration to another, faithful electors, mutual acceptance that “the people have spoken,” the loser’s appearance at his rival’s inauguration, and a high degree of self-restraint by former presidents in not opinionating on the leadership of their successors.
Theodore Roosevelt actually left the country on a yearlong safari in 1909 to give his hapless successor William Howard Taft the chance to establish his own regimen and presidential style, without everyone looking over Taft’s shoulder to see how the former president — infinitely more energetic and charismatic — reacted to his every utterance and every decision.
In the election of 1800, Hamilton, who saw his life’s work slipping away with the coming of the “democrats” into power, assaulted the barely rooted norms of American political tradition. He attempted to void the results of the election by what even he regarded as unscrupulous means. His nasty pamphlet about his own party’s nominee for the presidency broke later President Ronald Reagan’s Eleventh Commandment, “Thou shalt not speak ill of any fellow Republican.” In doing so, Hamilton split the Federalist Party and weakened its chances of holding onto the presidency. By 1805, after Jefferson won a second term by a landslide, the Federalist Party essentially blinked out of existence, in part because of Hamilton’s misguided actions in the election of 1800.
Hamilton’s hostility towards Aaron Burr, and Burr’s resentment of Hamilton’s abusive words and deeds, would percolate for the next four years until it became clear that New York was not big enough to contain both of these titans of American politics. They finally met in a duel on the west bank of the Hudson River at Weehawken, N.J., on July 11, 1804, where Hamilton appears to have thrown away his shot (i.e., missed deliberately) and Burr fired to kill — and did. The most famous duel in American history thus has some roots in the chaotic election of 1800, which Jefferson blithely called the Second American Revolution.
Even Hamilton’s close friend Gouverneur Morris, who delivered the eulogy at his funeral in New York City on July 14, 1804, wrote in his diary that his friend was “indiscreet, vain, and opinionated. These things must be told, or the character will be incomplete.”
Such were the political machinations of Alexander Hamilton, one of the greatest secretaries of the Treasury in American history, and, of course, the darling of the recent Broadway musical.
Afterword: One-Term Presidents
John Adams became the first of 10 presidents who have been denied a second term by their party or by the American people: John Adams, John Quincy Adams (his son), Martin Van Buren, Franklin Pierce, Benjamin Harrison, William Howard Taft, Herbert Hoover, Gerald Ford, Jimmy Carter and George H.W. Bush. The expectation is always that an adequate president will be granted a second term. The last time an incumbent was denied re-election was 28 years ago, when Bill Clinton defeated George H.W. Bush. Being relegated to the one-term club is a source of bitterness to its members, some of whom continue grumbling about it for the rest of their lives.
If Mr. Trump, who has made a career out of deriding “losers,” winds up losing the Electoral College vote on Dec. 14, he will bear a double stigma. In addition to being a one-term president, he will be just the third president impeached by the House of Representatives. If (as seems unlikely) Trump resigns before the end of his term to secure a pardon from his short-term successor Mike Pence, he would bear a third historical stigma as the second American president to resign.
It’s 2020, the year when things fell apart.
For more of Clay Jenkinson's views on American history and the humanities, listen to his weekly nationally syndicated public radio program and podcast, The Thomas Jefferson Hour. Clay's most recent book Repairing Jefferson's America: A Guide to Civility and Enlightened Citizenship is available on Amazon.com.