Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (review)

Everyone who is at all interested in the election of 1800 should read this book. Amid curious "what ifs," Professor of Law Bruce Ackerman makes a number of provocative assertions. Among these are that the idea of original intent is a shortsighted way of understanding constitutional questions; that the events of 1800–1801 permanently transformed relationships among the three branches of government; and that if Thomas Jefferson had not been elected on the strength of Federalist James Bayard's conversion, John Marshall might have been made "interim president," possibly giving him the inside track in a new election and barring Jefferson from the presidency.

Sound wild? This was a time, the author explains, when the word revolution wore a glorious and not a threatening aspect, and the word democracy was tainted. The astute Federalists made sure that John Adams received one more vote than their intended vice president, Charles Cotesworth Pinckney, but the Republicans made a stupid error in not managing their count, for which they paid a price in nerve-wracking politicking over the ensuing months. One of the Federalists' options was to sustain the electoral stalemate in the House past March 4, 1801, Inauguration Day, if Aaron Burr proved unwilling to accommodate them.

This is a study of unresolved problems in historical interpretation, designed to demythologize the Constitutional Convention and propose instead a synthesis of 1787 and Jefferson's "Revolution of 1800"—not limiting the Founding to the so-called "miracle" at Philadelphia. The author repeatedly maintains that the framers had nothing to go on but theories, lacked foresight in critical areas, and as a result made "blunder after blunder" (14). He points, of course, to the constitutional provision by which president and vice president were voted on without the electors having to rank them (remedied in 1804 by the Twelfth Amendment). But he is chiefly concerned with three things: the lame-duck period after fall elections, when presidential inaugurations were not to take place before March, and defeated presidents and defeated legislators could continue to enact unpopular policies; the obvious failure to anticipate party competition; and the role of the vice president as president of the Senate in cases where the vice president has a stake in the outcome of a presidential contest.

As for the 1800–1801 election crisis, Ackerman narrates the twists and turns unlike any historian has done before. While Federalists asserted that the law demanded obedience to the duly constituted lame-duck Congress, Republicans insisted that Jefferson was meant to be president, based on the clear voice of the people. The Federalists in Congress could have enacted a statutory solution to the executive vacuum of March 4, by which the outgoing secretary of state, as the first cabinet officer, could serve out the term vacated by the president, or the newly appointed chief justice could. In either case, that man was John Marshall, the one officer of the government acceptable to both the Adams and Hamilton wings of the party. For Adams, the idea had particular appeal.

The problem with this scenario, which Ackerman does not adequately address, is that there would have to have been a special election in any case, and probably without much delay. The mood of the country was such that Jefferson and the Republicans would have triumphed again. So how could Marshall have been in office long enough to attain sufficient standing to become more popular among the presidential electors than Jefferson, whom they had only recently chosen? Were the Federalists to attempt any more longstanding solution, there would clearly have been a violent confrontation: The governors of Pennsylvania and Virginia had informed Jefferson as much, as Ackerman acknowledges. The newly elected Republican-dominated Congress was not scheduled to be seated until December 1801, making the situation indeed unstable.

Ackerman observes that Jefferson failed to convince Adams to veto any statute that would undo the election. Their diverging positions symbolized...