Friday, June 10, 2022

The Purpose and Powers of the Senate, Part XXXXIII: The Killing of 2,500 Englishmen

     The one contender who had most definitely anticipated an inconclusive outcome to the Election of 1824 – indeed, counted on it – was Henry Clay, who was then serving as Speaker of the House. With four men in the race and Jackson poised to swallow up an otherwise unforeseen portion of the voting public’s increasingly rapturous support, Clay shrewdly predicted that no one of them could possibly have hoped to secure the necessary votes in the Electoral College to declare victory in the first instance. No, the canny Kentuckian surmised, the race would certainly fall to the House of Representatives to settle, and therein lay the great advantage of Henry Clay. As Speaker, it would be a relatively simple matter for him to maneuver the various delegations into voting as he saw fit. So long as he came in third or better in the initial contest – in keeping with the 12th Amendment’s provision that the House must choose from among, “The persons having the highest numbers not exceeding three on the list of those voted for as President” – Clay could therefore effectively anoint himself. With Crawford, to his eyes, the least popular of the three – and with the man having suffered a rather sever stroke in 1823 – the Speaker was accordingly assured that the office of President was as good as his. So crushing a disappointment it was, then, when Clay was the one who came in forth. Thus excluded from the contingent election which he had envisioned as his own coronation, Clay was accordingly left in the position of choosing whom among the men he had lately anticipated defeating would instead take his place as the President of the United States.

    While the resulting decision was a fairly bitter one for Clay, it did not prove, ultimately, to be a very hard one. The Speaker would certainly not hand the presidency to Crawford, a man whose politics he disagreed with and whose health had just been exposed as being alarmingly precarious. And for Jackson, Clay had nothing but venom and recrimination. Writing to one of the future founders of the anti-slavery Republican Party, Francis Preston Blair (1791-1876), Clay tellingly called into question the competency of the popular Tennessean on February 29th, a little less than three weeks after the contingent vote was held. “I cannot believe [,]” he said, “That killing 2,500 Englishmen at New Orleans qualifies for the various, difficult, and complicated duties of the Chief Magistracy.” Jackson, in Clay’s mind, was a demagogue in the making, a kind of folksy Caesar who, if given the chance, would claim the backing of the people as an excuse to violate any law or regulation which he deemed to be burdensome. Such a man, who also displayed an unambiguous desire to tear down the nation’s entire financial system, could not possibly be permitted to wield the powers of Chief Executive. This left Adams, of course, as the only viable choice, a man whose temperament and approach to politics were not at all like those of Clay. And yet, in spite of their differences, Clay and Adams were more aligned in terms of policy than not. Both men believed in the efficacy of high tariffs and central banking, and furthermore regarded the ideal character of the federal government as being regulatory, constructive, and fundamentally activist. Yes, Clay could deal with Adams, perhaps even develop a partnership. And so, on the first ballot on February 9th, 1825 – truly a testament to Clay’s influence in the chamber – the House voted, by state delegation, to elect John Quincy Adams as President.

    Jackson, of course, was shocked and outraged by the sudden reversal of his fortunes. Going into the contingent election, he had assumed – not unreasonably – that his first-place finish in terms of both the Electoral College vote and the popular vote would incline the assembled Congressmen to vote in his favor. Granted, the percentage of the popular vote he had secured was significantly lower than a majority – coming in at around forty-two percent – but if any one of the three remaining contenders had to be declared the victor, selecting Jackson would assuredly have been the most in keeping with the popular will. There was some warning, it must be said, that this might not have been the final outcome. Shortly before the House assembled, a Philadelphia newspaper called the Columbian Observer published an anonymous statement from a supposed member of Congress who wished his countrymen to know that a clandestine bargain was afoot. Speaker Clay, he said, had already made a deal with Secretary Adams, the substance of which was that the former would anoint the latter in exchange for an appointment as Secretary of State. Nothing came of this claim at the time – no investigation was launched; the author’s identity was never sought – but time would soon enough prove that there was very likely something to it. For indeed, once having convened, the House did determine to elect John Quincy Adams to the office of President. And Adams, a short time later, did offer to make Clay his Secretary of State. Notwithstanding the appearance of corruption, Clay decided to accept the offer.

    Clay might have declined, of course, while protesting his innocence, but this was very unlikely to make the accusations go away. And so, as long as he was going to be accused of corruption no matter what, it seemed to him the only logical choice to accept the most prestigious position in the incoming president’s cabinet. Given the number of recent presidents who had ascended to that position from the State Department – including Madison, Monroe, and now Adams – the offer was also more than a little bit auspicious. Naturally, Jackson was furious. Clearly, the election had been stolen from him. Clearly, Clay and Adams had made a “corrupt bargain” to rob the American people of their preferred candidate for the highest office. Such rank corruption was intolerable, made that much worse by how blatantly it had been committed. It was a question of fear, of course. The elites – the money men, the bankers, the speculators, and the crypto-monarchists – had conspired to defraud the American public because they all feared what Jackson might do once in power. They feared for the 2nd BUS, which Jackson openly despised, and coveted the power it gave them over the lowly farmers and merchants that were rapidly settling in the West. And they feared his populism and his hatred of corruption and his dedication to Jeffersonian principles. In short, he terrified them in every aspect, and so they put him in his place. Adams was their man – their puppet – and Clay their willing tool. Between them, rest assured, the country was bound for four years of misery.

    Such were doubtless the bitter reflections of a man who just had the presidency seemingly snatched from his hands. In point of fact, neither Clay nor Adams had done anything that could possibly have been construed as either illegal or unconstitutional. The Constitution gives the House of Representatives the right to settle inconclusive presidential elections. And in 1824, Clay was the Speaker of the House. Should he have allowed the various state delegations to vote as their members preferred without interference? Perhaps so. Jackson had secured more popular votes and more electoral votes than any of his fellow candidates. And while this did not entitle him to an automatic elevation to the presidency, it did make for a strange outcome that the single man preferred by more of the voters than any other ultimately came in second to the runner up. But was it really a corrupt bargain that produced this result? As aforementioned, Adams was the only person Clay was particularly inclined to support. Why, then, should he not have attempted to use the legitimate power at his disposal to grant the New Englander a victory? And why, having secured said victory, should Adams not have granted the key position in his cabinet to the most powerful and influential statesmen with whom he had the most principles in common? Who else, in short, but Henry Clay, was John Quincy Adams supposed to choose? The whole exchange was a little less than democratic in the strictest sense of the term, to be sure. But it was also unambiguously the product of the laws and constitution of the United States of America.

    What does bear asking, however – to get back, finally, to the topic of the present discussion – is whether or not the 20th Amendment would have changed the outcome of the vote in the House. As it stood, the outgoing members – with Henry Clay at the head of them – were the ones tasked with determining which of the three men would ultimately claim the office of President. And this fact, as aforementioned, gave Clay a tremendous advantage. As Speaker of the House – a position to which he had been most recently elected in 1823 – he held tremendous sway over the goings-on in the lower chamber of Congress. In fact, by placing his allies in key committee positions, frequently taking part in floor debates, and deftly controlling the legislative agenda, Clay had actually helped to expand the power of the office itself, making the Speaker something more like an independent and equal rival to the President of the United States than a mere functionary of Congress. What this meant in practice, of course, is that Clay had a great many strings to pull when the House convened to hold a contingent election in February of 1825. Two years into his latest tenure in office, many men doubtless owed him favors or else were eager to cultivate his patronage. Some of them, to be sure, would not have counted themselves among his allies. But then many of those same men were likely beholden to the Speaker anyway. Being, as he was, the most powerful man in the chamber, Clay was almost certainly the recipient of a great deal of information about his fellow members. Who sought re-election and who didn’t; who had mistresses, or illegitimate children; who owed money, and to whom, and how much; all such bits and pieces of gossip were bound to find their way to the Speaker’s office eventually, and in his hands, they surely did not go to any waste. Clay, in short, was ideally situated to decide the outcome of the contingent vote, a state of affairs in no small part made possible by the fact that, at that moment, he was at the end of his latest tenure and at the height of his considerable powers.  

    Consider, however, the potential outcome if it had been the incoming House that was summoned on February 9th, 1825. In actual fact, this gathering of Congressmen did not meet until December of 1825, some eight months after the inauguration of John Quincy Adams as president. By that time, the results of the contingent election had effectively split the Democratic-Republican Party into two mutually antagonistic factions. There were the “anti-Jackson” men, being those who supported President Adams and favored the kind of economic nationalism espoused by him and his Secretary of State, and there were the Jacksonians, being those who believed that the 2nd BUS and its attendant financial system were corrupting the nation’s spirit. Over the course of Adams’ four years in office, these two informal groupings would slowly but surely evolve into two distinct and increasingly formalized political parties. The anti-Jacksonians would eventually become known as the National Republican Party, adopting a name which sought to emphasize both their ties to the Jeffersonian Republican Party and their tendency to view most policy questions as having truly national answers. And the Jacksonians, meanwhile, evolved into the Democratic Party, likewise rebranding themselves in an attempt to draw attention to their purported values – in this case, populism and the popular direction of public policy.

    Based solely on this realignment of the political status quo – and bearing in mind that contingent elections are carried by a majority vote of the state delegations – Jackson would likely still have lost. As of December 5th, 1825 – being the first full session of the 19th Congress – nine state delegations were controlled by the Jacksonians while thirteen were controlled by the Anti-Jacksonians. But if the incoming House had met in January instead of December – in time enough, that is, to count the votes of the Electoral College – then the spilt in the Democratic-Republican Party would not yet have happened. The newly-elected Congressmen – along with their counterparts in the Senate – would have assembled, been sworn in, and then proceeded to count the relevant ballots. The impasse which would trigger the contingent vote would at this stage become apparent, thereby almost certainly beginning the process by which the various Representatives would begin to sort themselves. But without a Speaker – Clay’s tenure having ended with the previous Congress and another election having yet to be held – and without committees – the principal tool by which Clay engendered loyalty and exerted influence – one wonders just how much power the venerable Kentuckian would have been able to wield. He would still have been Henry Clay, of course, a veteran former Speaker and most likely to hold that same post once again. There would surely have been any number of his fellow Congressmen who still owed him favors or were eager to owe him in the future. But between the turnover resulting from the election in November and the fact that whatever power Clay could claim was essentially theoretical, the elevation of John Quincy Adams would not necessarily have been inevitable.

    Consider, for example, the basic math with which Clay would have been confronted in the event he decided to run for another term as Speaker. According to the factional affiliations of the 19th Congress, there were one hundred and six Jacksonians and one hundred and seven anti-Jacksonians seated in the House of Representatives. Keeping in mind that these tallies embody the partisan standing of the lower chamber several months into the presidency of John Quincy Adams, it would seem reasonable to characterize the likely balance of power as of February, 1825 as being well within the margin of error. As Speakers are elected by a simple majority vote, this would accordingly call into question the ability of Henry Clay to secure another term in that coveted office. His previous term having ended, therefore, and the viability of another term potentially in doubt, Clay might well have found himself in an unusual position of weakness. If all one hundred and six men who would later declare themselves to be Jacksonians were determined not to elect Clay to the speakership in the event that he ran for another term, and if these one hundred and six men were able to convince a single anti-Jacksonian-to-be to follow suit, Clay would thus have been robbed of his ability to promise future committee assignments to those Representatives who did not already owe him favors. This would presumably leave only the returning Congressmen already in Clay’s orbit securely in his pocket – that being, presumably, a smaller total number than at the end of the previous Congress. Thus deprived of the influence over the House to which he had become accustomed, it would accordingly seem to be something of an open question whether Clay could have produced the victory for Adams with which we are familiar or if the supporters of Jackson could have rallied in order to usher him into the White House four years ahead of schedule.

    Upon reflection, robbing Henry Clay of the power which he had accrued over his previous term as Speaker within the context of a contingent vote for president would rather seem to be the point of the 20th Amendment to the Constitution. Not specifically, of course, but according to the spirit of the thing. The fundamental purpose of the 20th Amendment is to prevent lame duck public servants – and specifically those who have recently been defeated at the polls – from exercising undue influence over the public policy decisions of the present moment. The rationale behind this, of course, is that elections represent a survey of the general public opinion. In the aftermath of an election, results dictate causality. If enough incumbents are defeated as to usher a new party into power, the kinds of policies thereafter to be pursued will doubtless undergo a change. And if the party in power manages to hold onto its position, then the policies already being pursued are more than likely to remain unchanged. In either case, the outcome of an election determines what happens immediately thereafter. This, in the modern sense of the term, is the essence of electoral democracy. In keeping with this logic, then, allowing policy decisions to be made according to the results of a previous election rather than the most recent election would seem to be definitionally undemocratic. This becomes particularly apparent in moments of unexpected crisis. If, immediately following an election, a national emergency should occur whose implications for the future are potentially quite severe, it would seem particularly undesirable to vest decision-making authority in a group of statesmen and public servants whom the people may just have roundly rejected at the polls. Elections, of course, don’t always result in massive turnover. Indeed, sometimes they change hardly anything at all. But since at other times they give expression to massive shifts in public opinion and public trust, good election policy must take full account of the possible as well as the practical. That is to say, the laws and regulations surrounding elections must ensure that lame ducks are able to effect significant and lasting policy change as infrequently as is practicable.

    In some ways, to be sure, this is easier said than done. National elections, ironically enough, often tend to be very local affairs, with candidates typically staying physically within the relevant electoral districts until a victor is finally declared. For a particularly large nation like the United States of America, this means – and had always meant – that there must be a kind of latency period between the final certification of an election and the swearing-in of the victors. Quite simply, people need time to get from their constituency offices to the seat of government, necessitating, in the interim, the continuation in office of the outgoing class of elected officials. But while this state of affairs may be functionally unavoidable, steps can be – and have been – taken in order to minimize the likelihood of certain undesirable outcomes. If, for example, national elections are held in November, thus placing them in close proximity to a relatively dense block of public holidays, it might perhaps make more sense to schedule the necessary swearing-in ceremonies as early as possible in January rather than in the first week of March. Some amount of delay is inevitable, as aforementioned, and it simply wouldn’t be reasonable to expect newly elected public officials to report for work in the midst of the Thanksgiving, Christmas, and New Year’s season. But there would seem to be no reason at all to extend the lame duck period almost into the early spring. Just so, if the lower house of the national legislature is going to maintain the responsibility of deciding the outcome of a disputed presidential election – a decision, it would seem fair to say, of potentially monumental significance – the summoning of said house should be so timed as to occur after its members were most recently sworn in.

    At the moment in time in which the House of Representatives was summoned to hold a contingent election in February of 1825, Henry Clay was indisputably its most powerful single member. Having served in the office of Speaker for a cumulative period of ten years – his most recent tenure having commenced in 1823 – he had a great many allies among his fellow Congressmen, wielded tremendous influence over the various committees on which they sat, and could, without much trouble, preemptively determine how any given vote was going to come off. In spite of all of this, however, Clay, like any public official, was still fundamentally beholden to the whims of the electorate. Not just the voters in his home state of Kentucky, of course, but the majority of House members whose support he needed if he was to maintain his position as that chamber’s presiding officer. With every biennial election, the composition of the House was refreshed. And just so, with every refreshment, a new vote for Speaker was required to be held. As the House is intended to represent the priorities and desires of the American people as accurately as possible, so the Speaker is supposed to embody the kind of leadership the House desires for itself as accurately as possible. Allowing Henry Clay, as Speaker, to preside over the 1825 contingent election for president accordingly represented a break with this otherwise very durable rationale.

    As of February 9th, 1825, the most recent national election had been held only two months previously. There existed, therefore, effectively two parallel Congresses. The first, the sitting Congress, had been elected in November of 1822 and had chosen Henry Clay as its Speaker upon being sworn in on March 4th, 1823. The second, of course, was the incoming Congress, whose members had been elected in November of 1824 and who had yet to sworn in or to choose a presiding officer. Presumably, the incoming Congress more accurately represented the intentions and desires of the American people as of February, 1825 than the body of legislators chosen some two years previously. And while it was entirely possible – in not, indeed, quite likely – that the newly sworn-in Congressmen would have opted to select Henry Clay once again as their presiding officer, this was not necessarily a guaranteed outcome. If, in keeping with the dictates of electoral democracy, the American people had just recently been polled so as to determine, as accurately as possible, their desired occupant of the office of President, why shouldn’t the incoming House – also recently elected – have been granted the attendant responsibility of settling an electoral impasse? Why, in essence, did the power of selection in the event of an inconclusive vote devolve upon a body whose credentials had arguably just expired? Henry Clay was indeed the choice of the representatives of the American people as of 1823, but why should this have entitled him to continue wielding as much power as he did several months after the election of a body of men who might have declined to elect him once given the choice? The plain fact of the 20th Amendment would seem to answer all of these questions, albeit somewhat belatedly. Lame duck public officials should not be able to make such tremendously important decisions. And while crises cannot always be satisfactorily predicted, their worst effects can be mitigated with a little thoughtful planning.

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