The Purpose and Powers of the Senate, Part XXXXII: Every Man a Contender

    Notwithstanding the fact that, as a result of the Missouri Compromise (1820) a civil conflict between the Northern and Southern sections of the American republic had narrowly been avoided, its aftermath was not necessarily characterized by feelings of renewed conviviality. On the contrary, the events of the Missouri Crisis, the McCulloch v. Maryland (1819) ruling, and the Panic of 1819 had all conspired to permanently shatter the sense of national reconciliation that followed the successful conclusion of the War of 1812, leaving in their wake a nation increasingly and bitterly divided along sectional, socio-economic, and ideological lines. The Panic arguably prepared the ground for what followed by seeming to validate the suspicions of those Democratic-Republicans who had always doubted the wisdom of the Madison Administration in chartering a second national bank in 1816 while at the same time forcing that same institution’s backers into a kind of defensive crouch. Chief Justice Marshall’s opinion in McCulloch v. Maryland served to widen this initial cleavage further by drawing attention to the seeming divergence between the stated principles of Jeffersonian republicanism and the policies pursued by successive Democratic-Republican administrations. And then along came the Missouri Crisis, the events of which focused the concerns of those advocates of state sovereignty who felt that their party was drifting inexorably and disagreeably towards advocating the complete centralization of political power in the hands of the federal government on that most sensitive of topics for the Southern political classes, slavery. Having been primed to distrust certain of their Republican co-partisans by the latter’s avowed support for central banking their seeming abandonment of strict constructionism, that same group’s willingness to drag slavery into the spotlight of the national political sphere arguably destroyed what little trust remained among the various wings of the nation’s dominant political party. From 1820 onwards, therefore, while the Democratic-Republicans would remain an integral political organization and the only party on the national stage with any real power or influence, they steadily began to fragment into mutually antagonistic ideological sects.

    The Election of 1824, of course, finally exploded any remaining illusion of unity by pitting four members of the Democratic-Republican Party against one another in a bitter contest that was as much about personality and sectional identity as it was about public policy. The outset of the race was relatively calm, to be sure. President Monroe, though still quite popular, declined to run for a third term. This decision shocked no one, for it was entirely in keeping with the precedent set in 1796 by a retiring George Washington. But while Vice-President Daniel Tompkins (1774-1825) might otherwise have been the natural choice of successor, shaky personal finances and poor health exacerbated by alcoholism quickly ruled him out as a viable candidate. In accordance with contemporary custom, the choice then fell to the Republican caucus in Congress. This was, and had long been, a simple matter of expediency, the congressional caucus of a party being the only nationwide gathering of its members who could be depended on to meet regularly. Not every member of the Democratic-Republican Party particularly favored the caucus as an instrument of nomination, however. The 1808 meeting had been a particularly fractious one, with a contest between several party luminaries resulting in Madison’s formal nomination amid bitter whispers from runners-up George Clinton (1739-1812) and James Monroe that the system itself was illegitimate. 1816 witnessed another contested caucus, this time between Secretary of State James Monroe and Secretary of War William Crawford. Monroe emerged victorious, of course, and went on to win the Election of 1816. But rather than gripe, as his predecessors had done, about the illegitimacy of the method, runner-up Crawford opted to bide his time, shore up his connections within the party, and wait for another chance to make his play for the nomination.

    The caucus meeting in 1820 was clearly not the moment. Soon after meeting, its members opted to adjourn, none of them being in a position to challenge the exceptionally popular Monroe. But when the next meeting occurred in 1824, the patient, calculating Georgian finally sprang into action. Having served in the Senate, as an ambassador, and in two cabinet posts in two different administrations, Crawford undeniably had the qualifications and the public profile to run for president. Monroe had stepped down without endorsing a preferred successor; Tompkins had effectively disqualified himself; the game, to all appearances, was Crawford’s to lose. But while he did accordingly secure his party’s nomination for president – and while, under slightly different circumstances, this would have all but guaranteed his election – Crawford’s path to the heights of power very soon became littered with obstacles. The 1824 caucus meeting, as it happened, was more sparsely attended than had previously been the case, Evidently, the criticisms of men like George Clinton and James Monroe that the practice was inherently undemocratic had coalesced with the sectional and ideological suspicions raised by the repeated controversies of 1819 to produce a climate within the Democratic-Republican Party of intense mutual distrust. In consequence, while those relatively few Republicans who attended the 1824 nominating caucus did indeed select Crawford as their party’s official nominee, various state legislatures at the same time opted to nominate candidates of their own.

    John Quincy Adams, in many ways, had always been Crawford’s principal rival for the Democratic-Republican nomination. As a legislator and a diplomat of long standing and experience, he was similarly qualified as was the ambitious Georgian. And as Monroe’s Secretary of State – an office from which Madison and Monroe had both run for and won the presidency – he was in perhaps the best possible position to declare himself the outgoing executive’s natural successor. It was quite understandable, then, given both his credentials and the fact that he was easily the most popular and well-known Republican statesman from the North, that the New England state legislatures would opt to nominate him for President. Much the same could have been said of the Kentuckian Henry Clay, a man of lengthy service in Congress – including three stints as Speaker of the House – who was as popular in the West as Adams was in the North. Not only that, but as the longtime leader of the Democratic-Republican caucus in the House, Clay had a record of policy achievements to point to and an independent powerbase from which to draw, both of which augured well for his performance in the event of his nomination. Bearing all of this in mind, it accordingly came as no surprise that his native Kentucky put Clay’s name forward as its preferred nominee and that Clay happily embraced the prospect of running for president.

    The candidate that hardly anyone took seriously, of course, was the one who ultimately proved to be the most formidable. Though Andrew Jackson had previously served in both houses of Congress and was, in a very real way, one of the founders of the state of Tennessee, his public profile was mainly centered upon his long and illustrious military service. During the early stages of the War of 1812, he had led American militia forces and their indigenous allies in the Mississippi Territory against a confederation of Creeks known as the Red Sticks, the result of which, the Treaty of Fort Jackson (1814), ceded over twenty million acres of land in what is now Alabama and Georgia to the United States of America. Shortly thereafter, having been granted a commission in the U.S. Army and made aware of British plans to invade Louisiana at New Orleans, Jackson proceeded to the city and organized an ad hoc but formidable defense – consisting, among other things, of unseasoned troops, local militia volunteers, Native Americans, slaves, and a group of pardoned privateers led by French smuggler Jean Lafitte (1780-1823) – whereupon he successfully fought off a numerically superior British force. Though the battle in question was strategically meaningless – the War of 1812 having ended, via treaty, some two weeks prior – the unexpected victory in the wake of a humiliating British attack on the city of Washington greatly lifted the nation’s spirits and made Jackson a household name. Then, several years later in the midst of a simmering conflict between communities in far southern Georgia and a confederation of native tribes and formerly enslaved peoples known as the Seminole, Jackson proceeded on an invasion of his own into British-controlled Florida. Though not specifically authorized to pursue his enemies into Florida itself – and having accordingly given rise to something of an international incident – Jackson nevertheless received the backing of President Monroe, whose Secretary of State was thereafter able to use the incident as a pretext to demand the sale of Florida by the British to the United States.

    Bearing all of these events in mind, Jackson could reasonably have been described – circa 1824 – as the single most well-known and publicly revered military officer of his generation. Not only that, but he was also arguably among the most popular public figures in the whole of the United States, having proven himself on numerous occasions to be the equal – if not, indeed, the superior – of the two great spiritual nemeses of the 19^th century United States: the British Empire and the continent’s native inhabitants. And while he was not, in terms of character or inclination, a statesman by nature, his public profile easily rivalled those of the era’s most successful politicians. When he determined, therefore, after a lengthy convalescence following a physical collapse in 1822, to once more enter the realm of politics, it was really only a matter of time before his presence began to warp some of the nation’s otherwise stable political assumptions. Initially, Jackson’s motivations were more vindictive than anything. An ardent critic of the 2^nd Bank of the United States, he viewed its public supporters as beneficiaries of corruption and sought to stymie their political careers if he could. William H. Crawford was first among his targets, both because, as the Secretary of the Treasury, he was foremost among the defenders of the utility of the 2^nd BUS, and also because he had been among Jackson’s most vocal critics in the Monroe cabinet during the former’s aforementioned escapades in Florida. In consequence – and again, mainly out of a sense of vitriol – Jackson sought to deny Crawford the support of the former’s home state by allowing the Tennessee General Assembly to nominate him for president and then grant him their electoral votes. Jackson’s fellow Tennesseans were evidently as eager as he was to punish Crawford and were willing to sacrifice their electoral votes in the process. But then, as word of the candidacy of the Hero of New Orleans spread, something strange began to happen. Legislatures in other states began to come out for Jackson as well.                     

    Without necessarily meaning to, Jackson had managed to leverage his military reputation and his public criticisms of the 2^nd BUS into an eminently viable pathway to the office of president. Though having previously served in both the House and the Senate, his prior political career was brief and unspectacular, easily overshadowed by subsequent military achievements. This fact – that he could convincingly be branded as an outsider with few connections to the contemporary American political class – along with his aforementioned public stance against corruption and central banking, combined to make Andrew Jackson the “man of the people” candidate which the ongoing race for president was otherwise lacking. As a testament to his resultant popularity, the legislature of Pennsylvania – then the most populous state in the union – notably chose to respond to the naming of Crawford as the Republican caucus’s choice for the nomination by branding the gathering “undemocratic” and naming Jackson as its preferred contender. Thus possessed of the support of states in both the North and the South, Jackson immediately became the single candidate to beat. No one could come anywhere close to being as nationally beloved, and no one could claim the backing of several regions of the country at once. The race was not over, of course. With many states splitting their electoral votes among the primary vote-getters via pre-drawn districts, there was still a chance that virtually any of the primary contenders could scrape up enough support to claim a win. With four men in the game, however, and each of them particularly popular in different regions of the country, the margin of victory was bound to be slim no matter who came out on top.

    Jackson, in the end, did receive the most votes. Both in terms of the Electoral College – which determines the winner of the race – and the real number of ballots cast – which does not – the Hero of New Orleans enjoyed more support than any of his contemporaries. And in a contest defined primarily by popularity – questions of policy taking a distinct backseat in 1824 to campaign biographies, popular songs, slanderous political cartoons, and editorials in the partisan newspapers – this was not particularly shocking. Jackson, as noted previously, was both a military hero and a self-appointed crusader for the common man, both of which personas appealed to the era’s increasingly aggressive egalitarian impulses. What did come as a surprise, however – to all but the savviest political operators – was that in spite of his first-place finish, Jackson still hadn’t actually won. He did, as aforementioned, win more electoral votes than his three opponents, amassing ninety-nine in total. John Quincy Adams came in a relatively close second with eighty-four votes, Crawford a somewhat more distant third with forty-one votes, and Clay in a disappointing fourth with only thirty-seven votes. Jackson, plainly, was more popular than any of his opponents. Indeed, the whole number of ballots cast in his name was nearly the equivalent of the those won by Adams and Crawford combined. But as of 1824, one hundred and thirty-one electoral votes were required to claim victory in the race for president. The result, therefore, was an impasse. As in 1800, the final choice would fall to the House.

The Purpose and Powers of the Senate, Part XXXXI: “A Fire Which All the Waters of the Ocean Cannot Put Out”

    As 1819 gave way to 1820, the final straw which broke the camel’s back that was the Era of Good Feelings was finally laid in the form of a petition by the inhabitants of the Missouri Territory. Slavery had been legal in Missouri since shortly after the region’s purchase by the United States as the upriver portion of the Louisiana Purchase in 1803, and it was widely assumed, in 1819, that the any state(s) formed from the same would likewise seek to protect the institution of human bondage. It was also assumed, with good reason, that this would not present any cause for controversy. States had been admitted on the same terms on a number of occasions since 1789 – namely, Kentucky in 1792, Tennessee in 1796, Louisiana in 1812, and Mississippi in 1817 – and the opening phase of debate on the motion showed no indication that the present matter would proceed otherwise. That is, until New York Congressman James Tallmadge (1778-1853) decided to submit an amendment. The Missouri Territory, it read, could and would become a state, 

Provided, that the further introduction of slavery or involuntary servitude be prohibited, except for the punishment of crimes, whereof the party shall have been fully convicted; and that all children born within the said State after the admission thereof into the Union, shall be free at the age of twenty-five years.

Coming from Tallmadge, this was not the most surprising proposal imaginable. Prior to entering Congress in 1817, he had been a vocal advocate for the speedy emancipation of his home state’s remaining population of enslaved peoples. And while serving in Congress in 1818, he had attempted to hold up Illinois’s admission to the union over what he perceived to be its shallow guarantees that slavery would not at some point be introduced. That being said, Tallmadge’s cited amendment did still represent the first instance in which a United States Congressmen attempted to explicitly make the eventual abolition of slavery a condition for accession to statehood. Understandably – and also to no one’s shock – Tallmadge’s Southern colleagues took umbrage.

    In fairness, within the contemporary Southern planter class, there existed a reasonably wide spectrum of opinions on both the economic necessity and the moral defensibility of slavery as an institution. Whereas, at the time that the Constitution had been drafted at the end of the 1780s, the difficult financial realities of plantation agriculture had made it seem as though slavery was bound for a course of slow but inevitable extinction – hence the willingness of the Southern Framers, as per Article I, Section 9, to countenance federal restrictions on the slave trade – the creation of the cotton gin in the early 1790s and the resulting global uptick in demand for raw cotton wholly revitalized slavery’s economic prospects within less than a generation. The result was a somewhat schismatic outlook on the part of the Southern slave-owning class. Whereas many planters – especially those who had lived through the 1770s and 1780s – had grown accustomed to thinking about and speaking about slavery as though it was a substantially unfortunate practice that was rightly bound to disappear – and were accordingly forced by the institution’s changing fortunes to begin characterizing it as a regrettable but increasingly necessary evil – the younger generation who had been raised knowing nothing but slavery as ascendant were inclined to defend the practice as both an economic and moral good. Internally, the result was a great deal of handwringing, and navel-gazing, and progressively more virulent racial essentialism. Externally, however, in the face of Northern efforts – like those of Tallmadge – to turn federal power to the task of limiting slavery’s expansion, the Southern political class closed ranks. However much certain of its members might have sympathized with a moral critique of slavery, none of them were willing to tolerate what they perceived to be a Northern-led violation of the inviolable sovereignty of either their own states or any prospective state.

    Thus it was, in 1819, that the Republican Party rapidly split along factional lines over the issue of Missouri statehood. Northerners in the House, who had historically suffered at the hands of the so-called “Federal Ratio” – whereby, according to Article I, Section 2 of the Constitution, states where slavery was legal received a proportional boost to their representation in Congress to the tune of sixty percent – and who had come to regard the ownership of human beings as fundamentally incompatible with the Jeffersonian ideal of egalitarianism, aligned with what little remained of the Federalist Party to vehemently oppose to the creation of another slave state. Southern Congressmen, meanwhile, many of whom claimed to depend upon slavery in their lives as landowners and planters and all of whom regarded federal meddling with state institutions to be a violation of the Jeffersonian ideal of strict constructionism, came out strongly in favor of accepting the Missouri proposal without amendments and allowing the territory to become a state. The stakes of the resulting debate were both practically and philosophically significant. If Congress could prohibit slavery in prospective states seeking admission to the union, how much of a leap would it really have been for that selfsame body to attempt the same in an existing state? For the moment, of course, this seemed substantially unlikely, in large part thanks to the aforementioned Federal Ratio and the stable balance of power between slave and free states in the Senate. But if the anti-slavery forces in Congress ever gained sufficient advantage so as to ensure that every new state admitted thereafter was a free state, the slave-holding South would eventually lose the ability to defend its defining economic institution. Given enough time, the anti-slavery North might even cobble together enough legislative support to prohibit slavery nationwide via constitutional amendment. And what, on that day, would become of the agrarian South?  

    Bearing the existential nature of the relevant controversy in mind, a series of very highly charged arguments began to be lobbed back and forth over the course of the two congressional sessions that followed. Those in favor of Tallmadge’s amendment pointed out that there was already precedent for Congress setting conditions upon federal territories which the inhabitants thereof were required to adhere to even after achieving statehood. Slavery had famously been forbidden in the Northwest Territory – established by Congress in 1787 – which status had been carried forward when Indiana and Illinois were carved out of the same. And while Illinois had thereafter come close to codifying a form of slavery regardless, the territory-wide prohibition had thus far held fast. If Congress could thus decide – albeit indirectly – to set conditions upon prospective states, then it was also perfectly legitimate for Tallmadge to so limit Missouri’s admission. Speaking somewhat more philosophically, anti-slavery Republicans also asserted that Congress should rightly have been forbidden from allowing new slave states to be admitted to the union under the contemporary American definition of republicanism. According to the Constitution, they said – pointing specifically to Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government [.]” If, as Jefferson had first articulated in the Declaration of Independence (1776) and as he and his followers had reaffirmed during the rise of the Democratic-Republican Party in the 1790s, the essence of republicanism in the American sense was a recognition of the inherent equality of all men under the law, then any prospective state whose inhabitants intended it to enter the union with slavery in full force must, of necessity, have its petition rejected. Slavery, the Northerners avowed, because it recognized the civil and political rights of only some men rather than all men, was inherently un-republican. Thus, under the cited terms of Article IV, Section 4, no state could legitimately enter the union with laws protecting slavery on its books.

    The admirable sentiment notwithstanding – namely, that slavery was inherently incompatible with the American definition of republicanism – this was plainly a very specious claim. Not only had slavery been a part of the established law canons of every state at the time of the American republic’s formation – being gradually phased out in most Northern states only in the years and decades thereafter – but at least three slave state had already been admitted to the union between the 1790s and the 1810s. The most recent of which, Louisiana, had even been a part of the same territorial acquisition as the prospective state of Missouri, thus seeming to nullify any further claim that states formed from lands which were added to the American republic after its formation somehow ought to have been subject to different requirements than their predecessors. Pro-slavery Southerners naturally seized upon this inconsistency, arguing in counter to their Northern counterparts that the basic principles of federalism – upon which the Constitution itself rested – prohibited the federal government from interfering in what were plainly the internal political affairs of the various states. Just as the people of Virginia could choose to adopt, modify, abolish, and re-establish slavery as they saw fit to do so, so were the inhabitants of the Missouri Territory entitled to take any of these actions of their own volition and without external interference. They were not the inhabitants of a state, it was true, and so were not entitled to certain rights under the Constitution – the exercise of voting rights in Congress, for example – but they were still American citizens, and so were entitled to enter into statehood under the same conditions as those of every other state.

    Bearing the nature of the relevant subject in mind – i.e. the existence or prohibition of slavery in a prospective state – it warrants noting the degree to which none of the arguments cited above touched upon the moral dimension of the same. Granting that advocates of slavery would not begin to speak openly about what they perceived to be its positive moral dimensions until sometime in the 1850s, it is nevertheless rather conspicuous how completely the Northern Congressmen involved in the Missouri debate avoided characterizing the subject in explicitly moral terms. Clearly, some of them did want to prevent slavery from spreading without limitation for more than economic or political reasons. Tallmadge, as aforementioned, had helped accelerate the process of emancipation in his native New York, an action which plainly had nothing to do with either curbing Southern economic advantage or reducing the political influence of the slave-holding states in Congress. And yet, in spite of the fact that the instigator of the controversy was almost certainly motivated to limit the practice of slavery in Missouri by a sense of moral revulsion, neither he nor his followers appeared inclined to argue in favor of the same in anything other than strictly legal or constitutional terms. To be sure – and as cited above – the did feel that slavery was in some way incompatible with the republican form of government, particularly as it violated the principle of equality under the law. But their assertions to this end were made specifically in reference to the aforementioned clause in Article IV, Section 4. It wasn’t just that they believed that slavery was incompatible with the republican form of government, but that it was incompatible with the form of republican government which the Constitution specifically guaranteed to the states.

    The reason for this very likely had something to do with the lingering vestiges of Era of Good Feelings. It was, as aforementioned, a time of widespread conciliation and comity during which political disagreement tended to take a backseat to accommodation. The Federalists having – arguably – been vanquished and the entire country having – arguably – embraced the fundamental tenets of the Democratic-Republican Party, there no longer seemed any need to discuss matters of public policy in aggressively moral terms. And few subjects benefitted more from this sense of détente than that of slavery, its legitimacy, and its future prospects within the American republic. Granted, even in the wild and wooly 1790s, when public insults were hurled freely and often and many a disagreement between statesmen was settled by a literal exchange of fire, the propriety of slavery and its place in American society tended not to be a topic of political discourse, owing in large part to the sectional compromise that had given rise to the Constitution. But the Era of Good Feelings in many ways served to deepen this sense of quiescence by disincentivizing rigorous moral critique in the public space in favor of cooperation and political stability. Northerners whose state governments had opted to abolish slavery in the 1780s still had reason to regard their Southern counterparts with a degree of disdain for the latter’s continued insistence on the necessity of institutional human bondage, of course. But with virtually everyone interested in pursuing a career in public service forced to become part of the same single party apparatus, what was to be gained from expressing negative opinions about slavery within the context of the public sphere? So long as the different wings of the triumphant Democratic-Republican Party agreed on certain fundamental principles, slavery could be reduced to a regional peculiarity which not everyone agreed was morally defensible but whose existence everyone was willing to accept for the sake of party unity.

    The fact that, during the Missouri Crisis, no one in Congress who opposed Missouri’s statues as a potential slave state seemed inclined to directly criticize slavery in unambiguously moral terms would seem to be among the last vestiges of this “live and let live” mentality. The propriety of slavery – or lack thereof – was definitely on many people’s minds as the relevant debate unfolded, but the likes of Tallmadge and his supporters declined to say as much almost certainly out of some lingering sense of political decorum. Such discretion, however, made little difference in the long run. Though not yet forced to defend slavery itself in positive terms, the Southern members of the contemporary Democratic-Republican Party nevertheless resented being forced into the position of advocating on behalf of the institution at all. Chattel slavery, as aforementioned, was a somewhat sensitive topic within the contemporary Southern political class, and not one which its members would have preferred to be discussed in a national forum like that of Congress. It was an exceptionally brutal practice, as many a planter would willingly admit, but it also formed the lynchpin of the entire Southern economy. By calling the desirability of its propagation into question, Northern Congressmen might accordingly have been accused of both seeking to cast aspersions upon the character of their Southern counterparts in the House and of seeking to undermine the essential foundation of personal wealth in the slaveholding South.

    Owing to the rancor which resulted from Tallmadge’s aforementioned amendment, the relevant session of Congress was adjourned after only three days of debate. On February 16^th, the final day, the matter was finally put to a vote. On the question of whether or not to link the Tallmadge Amendment to Missouri’s petition for statehood, the Committee of the Whole voted 79-67 in favor. Then, after discussing each of its two provisions in turn, the House proceeded to vote in favor of restricting the importation of more enslaved peoples into Missouri (87-76) and of ensuring that the offspring of enslaved people would be emancipated at the age of twenty-five (82-78). The sectional breakdown of the final tallies was entirely in keeping with expectations. As of 1819, there were one hundred and five Congressmen representing Northern states in the House and eighty-one Congressmen representing the slave states of the South. Excepting a handful of abstentions on both sides, everyone voted according to their regional origins and interests. The Senate, as it happened, voted no less predictably. By a vote of 22-16, the upper house of Congress chose to reject the cited restriction of further importation of enslaved peoples, and by a vote of 31-7, rejected the emancipation provision as well. At that time, it bears noting, there were twenty-one states represented by forty-two Senators. Of that total, slavery was legal in ten states and illegal in eleven, with Illinois – the newest state, having acceded to the union only in December of 1818 – splitting the difference by declining to recognize the institution while sending men to the Senate who nonetheless regarded it favorably. Both of Illinois’s Senators accordingly voted to reject the Tallmadge Amendment, sending the lot back to the House for reconsideration. Having only just voted to approve, however, and with the so-called “Restrictionists” very much in control, the House declined to even discuss a path forward and instead adjourned until December.

    The next several months gave rise to a number of complicating developments. The first was a sense of suspicion among certain conspiracy-minded Southerners that there was more to the Tallmadge Amendment than a simple a desire on the part of Northerners to arrest the expansion of slavery into the West. What if, these men began to speculate, rather than actually stop the spread of slavery, the likes of Tallmadge and his supporters were trying to foment sectional unrest? One of their most noteworthy supporters in the Senate, it was said, was Rufus King (1755-1827), one of the last self-identified Federalists still serving in Congress. What if King, along with anti-slavery Northerners like Tallmadge and fellow New York Congressmen John W. Taylor (1784-1854), were only seeking to use Missouri’s status as a potential slave state to split the Republicans along sectional lines and either resurrect the Federalist Party or form a “Free State” party in its place? In quiet retirement in Monticello, Thomas Jefferson grew to believe that this was exactly what the country was witnessing. Eager to regain their former prominence at any cost, he quickly became certain that the Federalists would not hesitate at engineering sectional discord, or even civil war. In fairness, during the previous session of Congress, representatives of the two sides had given voice to such possibilities. Addressing himself to the Restrictionists on behalf of his fellow Southerners, Georgia Congressman Thomas W. Cobb (1784-1830) had ominously declared that, “You have kindled a fire which all the waters of the ocean cannot put out, which seas of blood can only extinguish.” Seemingly not to be outdone in the realm of breathtakingly imprudent political rhetoric, James Tallmadge himself responded in kind by stating that, “If a dissolution of the Union must take place, let it be so! If civil war, which gentlemen so much threaten, must come, I can only say, let it come!”

    Meanwhile, during the summer of 1819, the inhabitants of the Alabama Territory – formerly the eastern half of the Mississippi Territory – successfully organized a statehood convention and drafted a constitution. Accordingly, when Congress convened again in December, a second petition for statehood – from a potential slave state, no less – was immediately added to its agenda. In consequence, the balance of power in the Senate was set to be changed quite significantly. While, as it then stood, there were twenty-two Senators representing free states and only twenty representing slave states, the admissions of Missouri and Alabama would tip the balance in favor of the latter. The sympathy which the Senators from Illinois tended to show towards slavery had previously nullified any theoretical Northern advantage, but there was virtually no chance that Senators from either of the two new states would vote otherwise than in favor the same. The House was not in a position to also place conditions on Alabama’s accession; an enabling act had already been approved allowing its inhabitants to draft a constitution. In consequence, its admission was approved pro forma on December 14^th. The Missouri petition, on the other hand, remained in a kind of limbo. What the territory’s inhabitants were requesting was the same kind of enabling act that had allowed the people of the Alabama Territory to organize a statewide convention and draft a constitution. Without such an act – which could only be approved by Congress – the people of Missouri could not lawfully pursue the creation of a state government. The Restrictionists in the House could not hold out indefinitely, of course. So long as they continued to block Missouri’s path to statehood, their counterparts from the slaveholding South would assuredly do the same to any free territory seeking admission. The result – a stalemate of indefinite duration during which no new states would be added to the union – was plainly unsustainable. True as that might have been, however, no solution immediately presented itself.

    It was at that point in time, at the end of a long series of events stretching back to the 1780s, that the campaign for Maine statehood finally reached its climax. Previously the northernmost portion of the proprietary colony of New York, the lands which now constitute the State of Maine were allocated to the colony of Massachusetts Bay after the collapse of the Dominion of New England – a kind of 17^th century colonial federation – at the end of the 1680s. From that point on, Maine had been an integral part of both colonial Massachusetts and the State of Massachusetts, though its remote location made it somewhat difficult to administer from far-distant Boston. Indeed, it often seemed as though authorities in Massachusetts proper were inclined to forget about Maine entirely or else were willing to sacrifice the interests of its inhabitants in order to protect their own. This tendency toward neglect was made particularly obvious during the War of 1812 when officials in Massachusetts – disinclined, as a class, to pursue hostilities with Britain with any vigor – responded ambivalently and belatedly to the prospect of an immanent British invasion. The resulting occupation of eastern Maine by British and Canadian forces severely depressed the local economy and resulted in costly raids on local communities nearest the frontlines. While the captured territory was ultimately returned to the United States per the terms of the Treaty of Ghent (1814) – notwithstanding Britain’s initial intention to transform the region into the colony of New Ireland – Mainers were left more convinced than ever that statehood was the only means by which they might ensure their own good governance. Though as many as five polls had previously been taken on the subject, all of which were returned in the negative, a sixth ballot was nevertheless authorized in June of 1819, the result of which, finally, was an affirmative vote for statehood. A constitutional convention was accordingly held during the proceeding October, and by January of 1820, Maine’s admission to the union was functionally a done deal.

    Or, rather, it would have been a done deal were it not for the impasse that unfolded over the course of the winter session of Congress as 1819 gave way to 1820. With Alabama having gained admission in December, the tally now stood at eleven slave states and eleven free states. Admitting Missouri would have tipped the balance in favor of the slave states. Admitting Maine would have done the same for the free states. Having witnessed, over the previous year, the degree of hostility which existed on both sides surrounding the issue – the disdain which certain Northerners seemed to hold towards slavery, the suspicion which certain Southerners seemed to hold towards their Northern brethren – neither cohort in Congress was willing to grant any such advantage to their opponents. And so, initially, as aforementioned, the result was a functional impasse. While two states, at that moment in time, were prepared to join the union, the two major factions within Congress were disinclined to allow either. That is, until Senator Jesse Thomas (1777-1853) – one of the legislators from free Illinois who was nevertheless sympathetic to slavery – came forward with an ingeniously simple proposal. Rather than allow the impasse to extend indefinitely, he opined, why not simply admit Missouri and Maine at the same time? Not precisely at the same time – the two initiatives were at different stages, with Maine prepared to enter the union immanently and the people of Missouri having yet to write a state constitution. But as long as the two were admitted within a reasonable amount of time of one another – close enough together, that is, so that their representatives in Congress would make their first appearance at the same session – then the sectional balance might accordingly be preserved.

    Fortunately for all involved, the two sides ultimately agreed to back Thomas’s proposal. This was doubtless helped to a large extent – particularly on the Northern side – by the inclusion of an additional provision blocking the creation of further slave states within the bulk of the former Louisiana Purchase. One of the objections that had been levelled by the supporters of the original Tallmadge Amendment in 1819 was that territory acquired following the ratification of the Constitution should necessarily have been prohibited from having slavery introduced therein. This was, as aforementioned, a demonstrably specious argument, but it was evidently one which the Restrictionists were nevertheless loath to abandon. The compromise which Thomas proposed intended to effectively split the difference. South of a line running parallel to the southern border of Missouri, slavery would be permissible in all American territories and states. North of that same line, meanwhile, with the exception of Missouri itself, slavery would be forbidden in all state or federal jurisdiction. This was not a policy, to be sure, which favored both sides equally. There was far more land north of the land than there was to the south. But since the Northern states held the advantage in the House at that point in time – and since there still remained a significant portion of territory from which new slave states might be formed – the Southerners in Congress found themselves cautiously agreeing. The Senate voted thus voted in favor of the “Missouri Compromise” by a (terrifyingly narrow) margin of 24-20, after which the House followed suit by a tally of 90-87. The House then voted to approve the whole bill under consideration – that being the original Missouri petition and the amendment proposed by Thomas – by a count of 134-42. After a little more wrangling to sort out the proper procedure for admitting one state to the union while passing an enabling act for another, the final tranche of bills was approved on March 5^th, 1820 and then signed by President Monroe the next day. But while a full-scale crisis was thus averted, a good deal of damage had already been done.

The Purpose and Powers of the Senate, Part XXXX: Good Feelings, Bad Times

    What the Democratic-Republicans quite failed to consider when they set about seeking to prevent a repeat of the near-crisis that was the Election of 1800 – principally by drafting the 12^th Amendment and thus reducing the likelihood of a tie between victorious candidates for President – was that their seeming monopoly on power as of the early 19^th century was nowhere near the guarantee of political stability that they were inclined to imagine it was. The essence of the controversy of 1800/1801 had arguably as much to do with the relationship between Congress and the American people as it did with the mechanism by which votes in the Electoral College were cast and then counted. To be sure, by modifying the text of the Constitution so as to allow for the designation of distinct candidates for President and Vice-President, the Republicans who controlled Congress in 1803 absolutely did reduce the likelihood of future electoral stalemates of the type they had just witnessed. But the emergence, in 1800, of both Thomas Jefferson and Aaron Burr as potential claimants to the office of President was really only half the cause of the catastrophe that very nearly unfolded in 1801.

    If the newly elected House had been responsible for settling the relevant stalemate, one finds it hard to believe that anything like what happened would, in fact, have actually happened. The Republicans knew, to a man, who their candidate for President was supposed to be, and those of them who were elected to Congress in 1800 would surely have cast their votes for him in short order if actually given the chance to do so. The problem, of course, was that these incoming Republicans were not responsible for settling the stalemate. The outgoing Federalists, in fact, were tasked with selecting the victor, a charge which they seemed to seize upon with a kind of bitter, malicious enthusiasm. Eventually, after weeks of balloting, a small handful of them were convinced to allow Jefferson to take his rightful place. But while a much more damaging crisis was thus averted, and while the Republicans were thereafter spurred to make some much-needed alterations to the Constitution, that party’s membership remained too complacent to address the entirety of the problem at hand. The issue wasn’t just that, during a presidential election, a stalemate was more likely than was either practical or desirable. It was that any stalemate, however rare an occurrence, would immediately become the responsibility of the group of people least suited to settling it honestly and efficiently.

    The Republicans failed to consider this almost certainly as the result of hubris. Having “vanquished” their rivals the Federalists, they doubtless came to the conclusion that any future stalemate between candidates for the office of President that were accordingly sent to the House to be settled would result, forever after, in a Republican majority setting things to rights. In fairness, as things played out, this was a far from unlikely outcome. The Federalists did continue to field presidential candidates through 1816, thus making it possible – if not probable – that an Electoral College tie might have occurred. And in every instance between 1800 and 1824, the Republicans held the majority of seats in both houses of Congress. If any presidential vote that took place during this era resulted in some manner of stalemate, therefore, a House dominated by Republicans would indeed have been called upon to settle it. This, the Republicans doubtless would have crowed, was only right and fitting, their party having settled the partisan disputes of the recent past several times over. First after 1800 and again after 1816, they had conclusively proven that theirs was the only vision of the country and its future with which the American people truly identified. The Federalists may have continued to linger in spots, but this did not change the most essential of facts. By defeating the Federalists time and time again, the Republicans had validated the Framer’s vision of a non-partisan political culture. Because truly, what significance could partisan labels possibly hold when every statesman of note was a self-identified Democratic-Republican?

    There is, to be sure, at least one problem with this kind of thinking. Within the context of a political culture in which free speech is protected, public disagreement is encouraged, and democratic expression is the law of the land, single-party governance simply cannot last. Just as it was arguably inevitable that the self-consciously non-partisan members of the Founding Generation – who loudly professed to abhor the very concept of political factionalism – eventually became the progenitors of the so-called “First Party System” which pitted the centralizing Federalists against the more radical Democratic-Republicans, the victorious Democratic-Republicans were likewise doomed to split along ideological lines and in relatively short order give rise to the Second Party System. Political actors, for better or worse, will always group together according to shared values and objectives for the purpose of pooling their strength and making more efficient collective use of their individual resources. Just so, in a political climate in which a single party or faction holds a monopoly on power, said party will eventually attract people of so many different perspectives and belief systems – united only by their desire to achieve success in the public sphere – that it must, at some point, tear itself apart. In the event that the single dominant faction within the single dominant party is willing to use the state security apparatuses which it controls to effectively suppress all dissent, this outcome might either be prevented or staved off. But so long as genuine freedom of expression is the rule of the day, no political party or faction can govern indefinitely without meeting this fate.

    So it was, in 1824, that the Democratic-Republican Party effectively met its end. While the so-called “Era of Good Feelings” – described by most historians as taking place between 1817 and 1825 – had witnessed a widespread softening of the partisan rancor that had characterized the preceding decades, it also gave rise to a general slackening of party discipline. Policies which were originated and promoted by the Federalists – national banking, federal tariffs, and the like – were openly embraced by the governing Republicans, and President James Monroe made a particular point – though tactics like national goodwill tours in 1817 and 1819 – of allowing former Federalist to feel as though the party of Jefferson was willing to embrace them as members provided that they repudiated their former partisan allegiance. Monroe was unwilling, it bears mentioning, to go so far as to appoint many former Federalists to positions within the national government, but he nevertheless made a point of balancing the emerging factionalism within his own party by appointing the leaders of major regional and ideological divisions as members of his cabinet. John Quincy Adams (1767-1848), for example, who briefly had been a Federalist while representing Massachusetts in the Senate, was granted the position of Secretary of State. Georgia’s William H. Crawford (1772-1834), meanwhile, who had first been appointed by Monroe’s predecessor Madison, was held over as the Secretary of the Treasury, while South Carolina firebrand John C. Calhoun (1782-1850) was granted the post of Secretary of War. Each man represented different facets of the increasingly disparate Republican platform, and by including all of them in this circle of advisors Monroe sought to signal to his fellow partisans that there was room for a multitude of viewpoints within both his administration and the larger party.

    Not all of the major figures within the contemporary Democratic-Republican party were included in this scheme, however, and not every member of the same were in a position to be mollified by gestures at “national unity.” Henry Clay (1777-1852), for one, who was then serving and would serve again as the Speaker of the House, pointedly declined Monroe’s invitation to join his cabinet and remained one of the most powerful Republicans entirely outside the influence of the White House. Similarly standoffish – albeit for very different reasons – was Congressman John Randolph of Roanoke (1773-1833), a hot-tempered ideological purist who abhorred the Monroe Administration’s seeming abandonment of the Jeffersonian ideals of strict constructionism and state sovereignty and fashioned himself as the nation’s foremost defender of agrarianism and Southern supremacy. In the immediate, of course, these men could only be so threatening. So long as the economy remained strong and Monroe’s cabinet remained supportive, the Era of Good Feelings showed no signs of suddenly abating. As the 1810s began to transition into the 1820s, however, issues which had been previously laid aside amidst the wave of conviviality and conciliation that characterized the post-war era once more emerged as major flashpoints of ideological and sectional discord.

    The year 1819 alone witnessed at least two major events which strongly augured the impending collapse of the era’s non-partisan atmosphere. The first was the Panic of 1819, a nationwide financial crisis brought about by a combination of post-war European economic instability, a resulting speculatory boom in American land sales, and persistent conflict and competition between the 2^nd Bank of the United States and a myriad of regional state-chartered banks. In a nutshell, the creation of the 2^nd BUS in early 1816 almost immediately resulted in friction between its directors and president and the advocates and backers of the various state banks that had been created during the “free banking” era of the early 1810s. Eager to capitalize on soaring global agriculture prices – the result of several European growing seasons having been disrupted by the Napoleonic Wars (1803-1815) – American speculators wanted access to cheap credit to continue as the Western frontier was in the process of being settled and the national government took to selling public land on extremely favorable terms. As the 2^nd BUS and these local interests accordingly began to negotiate the nature of their prospective relationship, the result was a series of excessively generous lending policies that vastly over-extended the former’s credit and set the stage for a major recession. Between 1817 and 1818, the 2^nd BUS racked up enormous debts without also accumulating the specie – i.e. gold and/or silver – to back them, a state of affairs which nearly collapsed the national economy – and in certain regions arguably did collapse the local economy – when, in 1817, European agriculture began to recover. Prices fell, the 2^nd BUS initiated a credit crunch in an effort to avoid declaring bankruptcy, and thousands of Americans lost either their investments or their property. The Bank, thanks to the “stern procedures” enacted by presidents William Jones (1760-1831) and Langdon Cheves (1776-1857), was able to return to a sound footing by 1821, but the local economies of the West and Southwest were left substantially in shambles.

    Unsurprisingly, this rapid progression of boom and bust elicited widely varying responses from different regions of the American republic and from different factions of the dominant party. While New Englanders in particular – and Northeasterners in general – spared little sympathy for what they regarded as the reckless borrowing and speculating of land developers in the West, Southerners and Southwesterners broadly came to view the restrictive credit policies of the 2^nd BUS as the central cause of their woes rather than any of their own activities. Private baking interests across the country, despite having helped set the stage for the crisis by overprinting paper currency which they knew they would be incapable of honoring, also remained similarly hostile to the Bank and its directors, accusing them of being anti-republican in their desire to centrally manage the economy. And while the official policy of the Treasury Department – under the auspices of Secretary Crawford – was that a general tightening of bank credit so as to prevent future crises was almost certainly good policy, other voices within the Republican Party avidly disagreed. Andrew Jackson (1767-1845), for example, a former Congressman, former Senator, and the great victor of New Orleans, grew to detest the Bank for what he considered to be its primary role in causing the panic and destroying the livelihoods of countless Americans. Indeed, Jackson would soon enough rise to a position of prominence and power in large part based on his avowed hatred for central banking, “business interests,” and the political corruption which he believed must inevitably accompany them both.

    In that same year which saw the outbreak of a widespread financial recession – the result of which, among other things, was a splintering of the Republican Party along ideological lines – the Supreme Court of the United States handed down one of its most notable decisions, the substance of which also pivoted upon the significance of the 2^nd BUS. In 1818, it seemed, the Maryland General Assembly had passed a law which applied an annual tax upon any bank operating in the Old-Line State whose circulating banknotes had not been stamped by the Maryland state treasury. While this would have applied, in theory, to any bank that was not chartered in and by the State of Maryland, the only such institution – and accordingly the intended target – was the 2^nd Bank of the US. Consequently, when cashier James McCulloh (1789-1861) issued 2^nd BUS notes to a Baltimore resident named George Williams, witness John James filed suit – per the enforcement clause of the relevant legislation – and the resulting case promptly found its way to the Maryland Court of Appeals. Though defended by former Congressman and prominent attorney Daniel Webster (1782-1852), the Bank was ultimately unsuccessful and the aforementioned tax upheld. Because, “The Constitution is silent on the subject of banks [,]” wrote the court, the 2^nd BUS was unconstitutional and any taxation thereof perfectly valid.

    Naturally, the case was appealed to the Supreme Court of the United States, with former Adams Administration cabinet secretary John Marshall (1755-1835) presiding as Chief Justice. Marshall ultimately found the Maryland law to be null and void, the principal reason being that the power to create the 2^nd BUS was indeed constitutional. Not only, he asserted, had the creation of the 1^st Bank in 1791 – the result of vigorous debate and backed by the signature of a chief executive, “With as much persevering talent as any measure has ever experienced” – set the precedent for further acts within the scope of the powers of Congress, but claims to state sovereignty as being superior to that of the national government were inevitably trumped by the overriding sovereignty of the collective American people. The people had not only ratified the Constitution by their own hand, but they had also elected the legislators who in turn chartered the 2^nd BUS. So long, Marshall continued, as the means were “necessary and proper” to the ends – in keeping with Article I, Section 8 of the Constitution – it was thus entirely within the power of Congress to lay and collect taxes, borrow money, regulate currency, and establish commercial relations in whatever manner that its members felt was most expedient. If a national bank was the result, it was not for the states to disagree. Indeed, according to the Supremacy Clause – which states that, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof […] shall be the supreme Law of the Land” – the states had no choice but to acquiesce. The Maryland ruling was thus voided and the offending tax declared invalid.

    At a moment in time in which the 2^nd Bank of the United States had already succeeded in making itself the subject of passionate disagreements within the governing Republican Party, the decision in McCulloch v. Maryland could not help but fan the flames. While the likes of Clay, Adams, and Crawford were all of the opinion that the late recession had shown the Bank to be a necessary instrument of national economic regulation, Jackson, Randolph, and Virginia Senator John Taylor of Caroline (1753-1824) – something of a radical among his contemporaries who maintained an ardent suspicion of banking, manufacturing, and advanced capitalism in general – all concluded that efforts to entrench centralized administration of the economy were bound to lead to tyranny and corruption. By not only affirming the constitutionality of the 2^nd BUS but declaring its precedence over any state policy to the contrary, the Supreme Court served to exacerbate this divide while also reviving the old Jeffersonian maxim that the national court remained the last refuge of the Federalists. If the national government could create a species of institution that was nowhere described in the Constitution but which the states could not impede or effect in the slightest, then what, truly, were its limits? “If Congress could incorporate a bank,” Taylor accordingly observed, “It might emancipate a slave.” And in this case, what was it that the Federalist-dominated judiciary was explicitly protecting? A body of investors whose only purpose seemed to be enriching themselves and their backers, and who had just lately managed to salvage their various holdings at the expense of countless landholders whose only crime had been to take advantage of the generous credit policies offered by the same? Is this whom the Constitution was intended to serve? The membership of the contemporary Republican Party found themselves increasingly at odds as to how to answer these kinds of questions.

The Purpose and Powers of the Senate, Part XXXIX: “A Majority of all the States Shall be Necessary to a Choice”

    The Election of 1800, ostensibly between Federalist incumbent John Adams (1735-1826) and Democratic-Republican challenger Thomas Jefferson (1743-1826), famously resulted in an Electoral College tie between the aforementioned Jefferson and his running-mate, former-Senator Aaron Burr (1756-1836). The plan – such as it was – was for all but one of the Electors chosen to represent the Democratic-Republicans to cast one of their ballots for Jefferson and one of their ballots for Burr. The single exception to this rule would then cast one of their ballots for Jefferson and leave the other blank, thus ensuring that Jefferson would receive exactly one more vote than Burr. Under the unamended terms of Article II, Section 1, this would have allowed the former to claim the office of President and the latter the office of Vice-President. In actual fact, however, some manner of miscommunication occurred which prevented that key Elector from performing their assigned duty. All seventy-three of the Democratic-Republican Electors cast one vote each for Jefferson and Burr, resulting in a 73-73 tie. Seventy votes constituted a majority; both men had cleared the bar. But as long as neither of them was inclined to give way to the other, the only way forward was through the intervention of the House. Thus, in February of 1801, the lower house of Congress was convened for the first time in its brief history for the express purpose of electing the next President of the United States.

    This was the outgoing House, of course. A House controlled by the Federalists, whose leading members had just been severely rebuked at the polls. These men had no reason to offer their swift cooperation. Not only had many of them just been voted out of office, but their standard-bearer – President John Adams (1735-1826) – had just come in third place to a pair of Democratic-Republican upstarts. And so, with the fate of the presidency – and of the nation, one might argue – very much in their hands, they began to act as good party men tend to do, with the interests of their particular faction very much at front of mind. Their preferred candidate, to be sure, would have been the aforementioned Adams, but he had fallen five votes short of eligibility with only sixty-five ballots in his favor. Instead, it fell to them to decide between two men whom most of them actively disliked. What to do, then? How to vote? Some of the Federalists, perhaps thinking that the New Yorker might be amendable to cooperation down the line, opted to elevate Burr over Jefferson, doubtless believing that their actions would entitle them to a warm relationship with the incoming president. It did not hurt, of course, that Jefferson was the great enemy of their faction, that he had pledged to undo all that they had accomplished, and that an opportunity to so powerfully spite the man was not likely to come along again. Petty as this plan of action may now seem, however, it was quite tame compared to what could have happened. That is, compared to what certain members of the House intended to happen.

    Choosing Burr over Jefferson, in point of fact, would not have subverted the will of the voters. Yes, it had always been the Democratic-Republicans’ intention to see Jefferson become President and Burr become Vice-President, but the ballots submitted by the Electoral College placed the two men on equal standing. Each was entitled to claim the office of President, and the House was just as entitled to choose whichever of them it wished. But what if, as certain Federalists Representatives were actively contemplating, the House opted to choose neither? What if, instead of attending to their duty, they worked to engineer a non-result? In terms of deciding upon a victor, the rules governing the contingent election process were relatively clear. “In chusing the President,” the Framers wrote in Article II, Section 1, “The Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice.” If no candidate received the support of an absolute majority of the state delegations at the end of a round of balloting, therefore, further rounds would commence until such a majority eventually emerged. And because there was no time limit imposed on this process by the relevant text of the Constitution, the number of ballots which could be held was theoretically infinite. What was not infinite, however, was the term of the outgoing president. Regardless of the decision that the House ultimately arrived at, President Adams would leave office on March 4^th, 1801. The House was also supposed to end its term on that day, of course, but it wasn’t necessarily clear if this would affect an ongoing session.

    According to Article II, Section 2, the President may, “On extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper [.]” If there is no disagreement between the two houses of Congress, therefore, and the House is disinclined to adjourn itself, then it would seem as though a given session may also continue on indefinitely. There is nothing in the Constitution, recall, regulating the beginnings and endings of congressional terms. March 4^th was indeed the date upon which the two-year terms of the sitting members was then due to expire, but it would have been a matter for the courts to determine if a session sitting on that day would lose its claim to authority if its leadership refused to end the proceedings in question. If the contingent election continued, therefore, beyond March 4^th, who would then become President? Not Adams, surely; his term would just have expired. And neither Jefferson nor Burr would seem to qualify unless the House chose one or the other. The answer, it turned out, was a matter of statute law rather than fundamental law. It was governed, that is, by an act of Congress rather than by the terms of the Constitution.

    According to the Presidential Succession Act of 1792 – the product of a Federalist-controlled Congress –  

In case of removal, death, resignation or inability both of the President and Vice President of the United States, the President of the Senate pro tempore, and in case there shall be no President of the Senate, then the Speaker of the House of Representatives, for the time being shall act as President of the United States until the disability be removed or a President shall be elected.

Granting that this would seem to get into a rather tricky area of law, the effect of this act, circa 1801, would appear to have been to grant the Federalists a significant potential advantage. Within the context of the scenario described above, the arrival of March 4^th absent a majority ballot in the House would theoretically trigger the following series of events. Their terms in office having come to an end, the President (John Adams), Vice-President (Thomas Jefferson), and the membership of the Senate would immediately vacate their positions within the existing federal power structure. The House would normally follow suit, of course, but the ongoing contingent election would presumably prevent this from occurring. At the moment, then, that their ceased to be a sitting President, Vice-President, or President pro tem of the Senate, the Speaker of the House – whose term, it could be argued, had yet to expire as long as the session over which he was presiding had yet to adjourn – would then assume the powers of the President of the United States. As the Speaker of the House, as of February, 1801, was still Federalist Theodore Sedgwick (1746-1813), the Federalists would accordingly maintain control of the White House until such time – as mandated by the aforementioned act of Congress – a special election could be held to fill the vacant office of President.

    Granted, this would have made for a tremendously complicated path to power, the only guaranteed result of which would have been a second presidential election in as many years. Not only that, but it almost certainly would have resulted in a degree of civil unrest the likes of which the American people had not witnessed since the end of the Revolutionary War. As it stood, even before the aforementioned Federalists were able to put this plan into motion, tension and uncertainty reigned across the country as suspicions began to circulate of the potential for foul play in the House. As the assembled Congressmen cycled through ballot after ballot for several days in the middle of February without either arriving at a viable result or prompting Jefferson or Burr to offer some form of concession, Republican-controlled newspapers began to call for military intervention to settle the matter. Thus spurred to action, the Republican governors of Virginia and Pennsylvania – James Monroe (1758-1831) and Thomas McKean (1734-1817), respectively – began readying their state militias. Mobs also began gathering in the new capital of Washington, D.C. as murmurs of discontent abounded. And yet Jefferson, surveying what should have been an eminently distressing state of affairs, appeared remarkably sanguine.

    Writing to the aforementioned Governor Monroe, the leader of the Democratic-Republicans expressed his opinion on February 15^th that any attempt by the Federalists to throw out the results of the late election by way of laws that they themselves had written was bound to bring about a campaign of armed resistance on the part of powerful “middle states” like Pennsylvania and Virginia. In order to prevent such an outcome, Jefferson continued, the Republicans may find themselves compelled to call another constitutional convention, the purpose of which – with its implicit threat of crafting an even more radical governing charter – was to shock the Federalists into ceasing their machinations. Truly, in more ways than one, it was a chaotic moment for the American republic. Less than a decade had passed since the ratification of the Constitution, and already the nation it had created was threatening to fly apart at the seams. Some portion of the people’s chosen representatives seemed to be actively plotting to circumvent the results of an extremely consequential election, the response to which, on the part of their opponents, were preparations for mob action, the creation of a parallel constitution, and the beginnings of a civil war. Under the circumstances, however, for at least some of the Federalists in the House, it was all worth the risk to keep the Democratic-Republicans out of the White House. The 1790s had been a bruising time for both factions, and neither seemed inclined to either forgive or forget now that the highest office in the land was effectively up for grabs.

    Fortunately for all involved – and doubly so for the America people – cooler heads eventually prevailed. After thirty-five ballots – during which, without fail, eight states voted for Jefferson, one short of the necessary nine – the thirty-sixth ballot brought about a viable result. Congressman James Bayard (1767-1815), a Federalist from Delaware, had evidently received a clandestine assurance from Maryland Republican Samuel Smith (1752-1839) that if Jefferson was elected President, he would refrain from tampering either with the Federalist-erected financial system or the nascent American Navy – both of which most Federalist feared would be dismantled – and decline from dismissing Federalists officeholders except in such cases as their removal was warranted for cause. This promise, along with the unexpectedly fervent lobbying efforts of former Treasury Secretary Alexander Hamilton (1757-1804) – who, though he was arguably Jefferson’s most notable political rival, claimed to fear Burr’s supposed lack of guiding principles even more – brought about exactly the shift which Jefferson needed to claim victory. Bayard left his thirty-sixth ballot blank instead of marking it for Burr at the same time that two of his Federalists colleagues from Maryland and Vermont did the same. Delaware’s vote for Burr therefore became an abstention while Maryland’s and Vermont’s became votes in favor of Jefferson. Thus, with ten states in his favor, the Sage of Monticello finally claimed the office of President.

    No one involved in this nearly-disastrous series of events should have had any reason to look back upon what had just occurred – and what had only narrowly been avoided – with anything like a sense of satisfaction. Yes, the contingent election procedure described by Article II, Section 1 of the Constitution had indeed produced a viable result in the face of a stalemate in the Electoral College, but only just. The defeated Federalists, bent on some combination of revenge and an utter refusal to relinquish power, had very nearly plunged the nation into civil war by threatening to use their constitutional authority to engineer a kind of statutory coup d’état. In theory, as aforementioned, everything from prolonging the stalemate to bringing about the elevation of Speaker Sedgwick to the office of Acting President would have been within the power of the members of the House of Representatives to accomplish under the law. But this fact – which was, and is, arguable at best – could not possibly have made such a course of action either right in itself or desirable in a practical sense. The Republicans would not have allowed it, they seemed quite prepared to force the issue, and bloodshed would doubtless have resulted. And while this outcome thankfully did not transpire, the events of – and those surrounding – the contingent election of 1801 nevertheless made it painfully clear to the contemporary American political class that some manner of institutional reform was necessary. Clearly, certain of the mechanisms laid out in the Constitution were inadequate to the realities of political life in the American republic.

    As ideal a time as this most certainly would have been to address the wisdom of placing the outcome of a contingent election for president in the hands of the outgoing House of Representatives – a circumstance which lay at the very heart of the recent controversy – the reformist efforts that followed the successful elevation of Thomas Jefferson instead focused their energies on an earlier step in the process. Rather than address the potentially disastrous implications of an inconclusive result in the Electoral College, the Democratic-Republicans who finally took control of Congress in March of 1801 – and who maintained that control through the mid-terms of 1802 – sought to reduce the likelihood that such inconclusive results would occur in the first place. The result of their efforts was the 12^th Amendment – spoken about a number of times already in this discussion series – the effect of which was to make a clearer differentiation, during the election process, between candidates for the offices of President and Vice-President. In many ways, this modification of the existing election procedure represented an eminently practical concession to the emerging realities of contemporary domestic politics. The Constitution was not designed with the existence of permanent political factions in mind. On the contrary, the Framers located the central threat to republican government in ambitious individual actors and sought to structure the relevant government in such a way as to alternately channel or frustrate the energies of the same. To their thinking, factionalism was inherently undesirable, liable as it was to promote competition for its own sake, and any institutional admissions to the existence of the same would only serve to give such competition room to take root and thrive. Within such an intellectual framework as this, there should not have been anything to fear from either allowing the offices of President and Vice-President to be filled in an intentionally non-partisan manner – with the top two vote getter simply getting the top two jobs – or from granting the membership of the outgoing House the power to break stalemates in the course of presidential elections. If the relevant individuals, it was imagined, ever arrived at a disagreement, they would be compelled to sort it out in keeping only with their personal convictions and the best interests of the nation at large.

    The members of the contemporary American political class were substantially less optimistic in the aftermath of the contingent election of 1801 than they had been when the Constitution was being drafted in 1787. Granted, the stalemate which went on to produce the relevant crisis was as much the result of personal ambition as partisan disagreement. It certainly hadn’t been a source of harmony and mutual accord for the arch-Federalist John Adams to have as his Vice-President the arch-Republican Thomas Jefferson. And there was no denying that the near crisis that unfolded over the course of the first two months of 1801 was the direct result of existing factional enmities between the incoming Jefferson and the outgoing Federalists in the House. But the strained relationship between Jefferson and Burr – a Southerner and a New Yorker, respectively, with very different approaches to politics – was arguably at the heart of the controversy. If one or the other of them had simply agreed to give way, the issue would likely have been settled within a single ballot in the House. Jefferson, of course, would never have dreamed of sacrificing his chance at truly “republicanizing” the American republic simply in the name of conciliation, and Burr was too personally ambitious to let slip the opportunity to occupy the highest office to which any American statesman could aspire. In the immediate aftermath of the predicament caused by these two men’s egos, however, the victorious Republicans saw only the immediate political significance. If, they theorized, Jefferson and Burr had been on a single “ticket,” Jefferson would still have won handily and a stalemate would have been avoided. Thus altering the federal electoral system, it was true, would have represented a break with the Framer’s vision of a constitutionally non-partisan republic. Indeed, it would have created an institutional space in which permanent factions could begin to establish themselves. Under the circumstances, however, as long as it solved the problem at hand, the Republicans framers of the 12^th Amendment seemed to be willing to make the change.

    The Constitution had yet to take on the air of an immutable sacred text, of course. And it wasn’t as though the alterations contained in the 12^th Amendment aimed to completely restructure the whole of the federal government around the needs and whims of the era’s emerging political factions. It was a slight change, on the contrary; a bit of procedural tidying-up so as to head-off future uncertainty. The fact that the beginnings and endings of federal terms were otherwise left untouched would seem to speak to the intentionally limited scope of the exercise. If the framers of the 12^th Amendment truly believed, in 1803, that the existing political factions were a permanent feature rather than a passing phase, it would seem the height of folly to have left the outgoing House in a position to potentially determine the outcome of presidential elections. Even once the modifications they had drafted as part of the 12^th Amendment took effect – thus reducing the likelihood of an Electoral College tie – it would still have been possible for a presidential election to produce a non-viable result. It also would have possible – albeit increasingly unlikely – for the Federalists to retake the House in time for them to be in the driver’s seat during a contingent election. In the elections of 1812 and 1814, the party came close to capturing forty percent of the relevant seats, and after the latter election they controlled six delegations outright. Had the events of the War of 1812 (1812-1815) played out less satisfactorily for the Republican Madison Administration, the numbers could have easily shifted enough to give the Federalists a House majority. Under such an altered set of circumstances, a competition between several candidates during the Election of 1816 – a species of event far from unheard of in the annals of American history – might have resulted in a stalemate at the polls, a contingent election in the House, and the elevation of a Federalist to the office of President for the first time in twenty years.

    The Republicans doubtless failed to account for the emergence of this most unpleasant of scenarios because they were convinced, after 1800, that the Federalists were all but done for. The years of the Adams Administration had been particularly punishing for the latter, with the events of the ongoing French Revolution prompting a series of diplomatic crises between the United States and the French Republic. And while President Adams ultimately succeeded in preventing a series of naval skirmishes known collectively as the Quasi-War (1798-1800) from boiling over into a full-scale conflict, the actions which he felt compelled to take during the many months when it seemed as though an armed confrontation with France was on the horizon did little to endear either him or his party to the American people at large. The Federalists opted to enlarge the much-reduced US Army so as to stave off potential French invasion, raised taxes in order to pay for the same, and drafted and approved the notorious Alien and Seditions Acts (1798), the net result of which was a domestic political atmosphere characterized by suspicion, fear, and distrust. The Republicans took particular advantage of this, drawing attention to the degree to which the Adams Administration seemed to be leading the American republic inexorably closer to a British-style fiscal/military state wherein taxes would fund military adventurism, which would give rise to empire, which would lead to military expansion, which would prompt higher taxes. The Federalist defeat in 1800, as far as the Republicans were concerned, was a resounding rebuke of this kind of program and signaled the end of the former faction as a viable threat on the national political stage.

    This assessment, by and large, would turn out to be an accurate one. While the Federalists did not disappear entirely until sometime in the late 1820s, they ceased to field presidential candidates after 1816 and the last of their representation in Congress vanished after 1825. They remained a regional political force throughout the period in question, of course, mainly in New England, Delaware, and Southern mercantile states like Maryland. And they did begin what might have turned into a significant comeback between 1812 and 1814. The war with Britain was never particularly popular in the commercial Northeast, and early losses at Detroit (1812) and Fort Niagara (1813), the Burning of Washington (1814), and the wretched state of American finances as the conflict entered its third year spurred something like a revolt in previously Republican-dominated states like New Jersey, Virginia, and New York. By the Election of 1816, however, with the war over, the Battle of New Orleans (1815) having reinvigorated the nation’s spirits, and news of the so-called Hartford Convention – during which delegates from various New England states definitely discussed reforming the United States Constitution and might possibly have discussed secession – having spread far and wide, the Federalist Party found its prospects definitively dashed in the face of Republican triumphalism. Even the adoption by the victorious Republicans of an essential component of the Federalist financial program in the form of the 2^nd Bank of the United States – chartered in February of 1816 – could not save the beleaguered party from finally fading away entirely. In that year’s election for President, Federalist nominee Rufus King (1755-1827) made the worst showing of any candidate since Charles C. Pinckney (1746-1825) a dozen years prior. Four years later, Republican incumbent James Monroe (1758-1831) ran completely unopposed.                           

The Purpose and Powers of the Senate, Part XXXVIII: Weakened Waterfowl; or, The Duck Stays in the Picture

    The 20^th Amendment, much like the 16^th, is at the same time esoteric and of tremendous practical significance. The text, for one thing, is rather on the lengthy side. Divided into six sections, it establishes both the specific timetable by which the membership of the United States Congress and the President are to assume their respective offices as well as the procedures to be followed in the event that the office of President cannot be filled in the normal manner immediately following a national election. The first section accordingly affirms that, 

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

The second section declares that, “The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January unless they shall by law appoint a different day.” Section three establishes that,

If, at the time fixed for the beginning of the term of the President, the President-elect shall have died, the Vice President-elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The fourth section, meanwhile, asserts that,

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

The final two sections are more logistical than substantial, neither of which having much significance outside the moment of their drafting. One states that, “Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article [,]” while the other simply declares that the amendment proposal as a whole would expire in seven years if not ratified in the meantime.

    As aforementioned, this would seem to amount to little more than a quantity of bureaucratic minutiae. What does it matter, after all, when Congress meets after an election or when the president’s term of office specifically expires? So long as the events which need to take place do take place within a fairly reasonable timeframe, why should the Constitution need to regulate them as precisely as all that? The answer, it should come as no surprise, is that the alternative to such strict regulation proved itself in the past to be a source of conflict and consternation. Not so much conflict as to become the source of a national emergency, of course. The 20^th Amendment wasn’t ratified until 1933, almost one hundred and fifty years after the procedures which it sought to modify were originally adopted. But in that century and a half period, at infrequent but persistent intervals, situations arose which made it clearer and clearer to the American people that certain aspects of the administrative framework described by the text of the Constitution were frustratingly – perhaps even dangerously – flawed. 1933 was not witness to any especially distressing incident. The amendment was not ratified at that moment for any reason in particular, that is. The 20^th Amendment might therefore reasonably be thought of as a kind of administrative modification. It was not a particularly urgent thing – inasmuch as no one was likely to ride into office by campaigning on its passage – but it was very much a necessary thing, and one which has since ensured greater consistency and transparency on the part of the federal government and its various institutions and officers.

    What, then, was the problem that the 20^th Amendment was designed to solve? Well, first, it should be fairly evident in terms of both its structure and its content that the 20^th Amendment was intended to solve several problems at once. One was the sizeable gap that existed prior to its ratification between the date of a federal election and the swearing-in of the victorious officeholders. In accordance with the unamended text of Article I, Section 4 of the Constitution, Congress is only required to meet once in every calendar year, specifically on the first Monday in December. This same section empowers Congress to set a different date if its members are so inclined, and the President also has the power to summon a special session at their leisure, but the Constitution is otherwise silent as the specific schedule which the federal government is entitled to keep. Notably, prior to 1933, there were also no regulations within the text of the Constitution mandating when the terms of either the President or the various members of Congress were supposed to either begin or end. When the Congress of the Confederation – that is, the version of Congress that existed under the auspices of the Articles of Confederation – met in September of 1788 to certify that the requisite number of states had voted to ratify the Constitution, its members decided to set March 4^th, 1789 as the date on which the new government would first meet and begin administering the country. Three years later, in 1792, Congress also set the date for all ensuing biennial federal elections – bearing in mind that the state of contemporary transportation and communication infrastructure made greater specificity practically untenable – at some point between the beginning of November and the first Wednesday in December.

    By the turn of the 19^th century, in consequence, the basic rhythm of the federal election cycle had more or less been set. As Congress had first met on March 4^th, 1789, and as every president since Washington – whose swearing-in was delayed by the inability of Congress to muster a quorum until April – had been inaugurated on that same day of the year, March 4^th accordingly became the single date upon which all federal terms both expired and began. Federal elections, meanwhile, were held every two years between November 1^st and December 1^st-7^th. The consequences of this timetable were many, the most persistent of which were twofold. First, it meant that every two years, following the scheduled national elections, a period of four months would elapse before the newly elected officials were sworn in. The result was an especially lengthy period during which either the membership of Congress, or the incumbent President, or both might conceivably be in the position of having just been defeated at the polls while still holding the reins of power. To put it mildly, the opportunities for mischief were many and profound. And as if this wasn’t troubling enough, the second quirk of this timetable, having to do with the manner in which it interacted with the aforementioned clause of Article I, Section 4, had the potential, in many ways, to create an even stranger set of outcomes.

    Recall that, according to the cited text of the Constitution, Congress is required to meet at least once in every calendar year on the first Monday in December. If Congress chose, prior to 1933, not to alter this date and decided – for whatever reason – not to meet more often than strictly required, the result was likely to be exceptionally problematic. If federal elections must happen at some point between November 1^st and December 7^th during the scheduled years, Congress must meet on the first Monday in December of every year, and new Congresses are only sworn in on the March 4^th following an election, then the incoming class of Representatives and Senators, having been voted in by the end of the first week of December but not required to take office until the middle of the following spring, might not actually meet officially until the following winter. Congress, as aforementioned, is empowered by the Constitution to set the date of its single mandated meeting, but in practice – until relatively recently – its members chose not to do so. Rather, they simply held to the schedule set by Article I, Section 4. That is, during off years they met in a long session in December while during elections years, in the same month, they held a comparatively brief “lame-duck” session. Any newly elected class of legislators, meanwhile – though due to take office on March 4^th – would not be required to convene – and so, in most cases, simply would not convene – until the proceeding December, over a year after they were elected.

    Each of these outcomes brings with them their own set of complications. If Congress, during an election year, chose to meet only on the one occasion mandated by the text of the Constitution, the result would necessarily have been a tremendous amount of wasted time during which, for all practical purposes, the United States would be without a functioning legislature. The lame-duck session would have met in December, transacted its business – which may well have included approving legislation to which its members knew full well their successors would object – and then adjourned for the year. The members of the incoming Congress would technically have taken their seats the following March, but they would not have been required to actually begin their work until December of that same year. This would seem to amount to a full twelve months during which essentially nothing was accomplished. Worse yet for the incoming legislators, it was a full year during which whatever laws their potentially bitter and vindictive predecessors approved would be permitted to stand. If the new Congress was required to meet in March, say, on the same day that its term began, little enough time might have passed for certain undesirable initiatives to be unwound before taking effect. But one would have difficulty imagining any manner of policy or law which, a full year after its implementation, would be particularly easy to repeal or replace. And yet, for whatever reason, this is exactly the dilemma which most every incoming Congress faced before the ratification of the 20^th Amendment in 1933.

    The fact that, also during an election year, the outgoing Congress and the incumbent President were permitted to remain in office for four months before their terms expired likewise had the potential to greatly complicate the transition from one partisan administration to the next. Consider, by way of example, the final months of the presidency of the unfortunate James Buchanan (1791-1868). While, pursuant to the results of the Election of 1860, more voters signaled their support for the policies of the Republican Party and its chosen standard-bearer, Abraham Lincoln (1809-1865), than the candidate put forward and duly supported by the Southern wing of the Democratic Party, John Cabell Breckinridge (1821-1875) – to the tune of over one million votes – lame-duck president Buchanan nevertheless persisted in undermining the position of the victorious Lincoln by refusing to declare that the United States was prepared to prevent the secession of any slave state by way of military force. Lincoln and his fellow Republicans had come to the conclusion that the disintegration of the union could not be permitted relatively soon after the first several Southern states began declaring their independence in December of 1860, but because Buchanan remained in office, they were unable to act on this conviction.

    Both men were of the opinion, it bears noting, that secession was illegal. But whereas Lincoln was inclined to mobilize federal military assets in order to put a stop to such illegality, Buchanan famously declared that he believed he had no moral or legal right to do so. Secession may well have been illegal, he stated accordingly in his last address to Congress on December 10^th, 1860, but it would also have been illegal for the federal government to functionally declare war on any of the states. And in any case, it was worth remembering that the cause of the conflict itself was the, “Intemperate interference of the Northern people with the question of slavery in the Southern States [.]” Unless Congress was thus prepared to, “Repeal their unconstitutional and obnoxious enactments [...] the injured States, after having first used all peaceful and constitutional means to obtain redress, would be justified in revolutionary resistance to the Government of the Union.” Suffice it to say, these pronouncements on the part of an outgoing president did not help to alleviate the mounting crisis in the least. Not only were the various Northern states disinclined to countenance rebellion in the face of what they considered to be their perfectly reasonable opposition to the continued expansion of slavery, but the various Southern states did not take kindly to being told that their assertion of sovereignty represented an illegal act. In the ensuing months, as Buchanan continued to gesture vaguely towards peace while Lincoln and the Republicans sat powerless in the wings, the seceding Southern states were able to consolidate their position, seize federal assets, procure weapons, and make ready for war.

    A lame-duck Congress could make itself the source of just as much mischief as a lame-duck president, of course. Consider, by way of example, the implication of such a lengthy period in office following an election in the context of a deadlocked presidential ballot. According to the terms of Article II, Section 1, the absence of a majority in the Electoral College on the part of one of the presidential candidates following an election would automatically trigger a contingent vote in the House of Representatives. The members of the same would then proceed to cast their votes, “The Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice.” At the present moment – that is to say, as of the middle of spring in 2022 – the Representatives who are entitled to take part in this contingent ballot are those who would have been chosen in the most recent election. Having been elected in November, they would have been sworn in already by the time it fell to them to help count the ballots of the Electoral College in early January and then participate, if necessary, in a tie-breaking election. Prior to 1933, however, it was the outgoing Congress that held this responsibility. Having been elected two years prior and with their terms set to lapse on March 4^th, these lame-duck Representatives were accordingly “on deck” to settle an Electoral College tie in the event that one emerged.

    Consider, for a moment, what this would mean in practice. Rather than allow the Representatives just chosen by the people to decide which of the presidential candidates, also just chosen by the people, should emerge victorious, the Constitution used to allow – prior to 1933 – the Representatives chosen two years prior to determine which of the selfsame nominees should take possession of the highest office in the land. If the purpose of democracy in the context of the American republic is to allow for a frequent resort to the people so that their lawmakers and their administrative officers reflect their desires and their biases as accurately as possible, this procedure would seem to be nothing short of a democratic mockery. The President, more than any other office in the whole of the federal government, is supposed to represent the American people in a very direct and immediate fashion. Not only do they possess a truly national mandate, but their election is highly contingent – if not absolutely contingent – on the direct and specific support of a majority of the American people. Allowing the House of Representatives to insert themselves into this relationship in the event of a tie in the Electoral College is a far from ideal solution to what history had since shown to be a substantially uncommon occurrence. But it is one which, if handled properly, would seem at the very least to be tolerable. The Electoral College already represents a layer of abstraction – arbitrary though it may be – between the American people and their chosen candidate for president, to the point that substituting another institution – in this case the House of Representatives – to perform essentially the same task would not seem to signify a wholesale abandonment of essential principles.

    Allowing the outgoing House to perform this essential task, by contrast, would seem to signify just such a species of perversion. Purposeless though the Electoral College might be – and indeed it is – its deficiencies are more mathematical than moral. As law and practice have made abundantly clear, delegates chosen to sit in this body are not in the least bit entitled to act contrary to the stated desires of those who elected them. What this means, in practice, is that Electors almost always vote according to the will of the people that they were chosen to represent. If they were elected as a Democrat, they cast their ballot for the Democratic candidate. And if they were elected as a Republican, they cast their ballot for the Republican candidate. It is, broadly speaking, a 1:1 relationship, and one which does reflect – if not always accurately – the will of the American people at the present moment in time. Allowing the outgoing House of Representatives to take on this same responsibility naturally dispenses with any such relationship between popular will and success in public office in favor of allowing resentment and petty animus be the order of the day.

    This is because the outgoing House of Representatives cannot ever claim to represent the American people at the present moment in time. What they represent has since ceased to exist. In two years, people have died, and moved, and come of age, and undergone any number of life-changing experiences, and the nature of each Representatives’ constituencies have accordingly been altered from what they were. Indeed, depending on the timing – in the event of a federal census and a round of redistricting – the districts they were chosen to represent might have entirely ceased to exist. What can they claim to speak for, then, these lame-duck lawmakers, other than the past? Other than a people who no longer exist? This is why House elections are held every two years, is it not? So that the House can speak for their constituents with some degree of accuracy? So that the House as a whole can accurately reflect the will of the American people as near to the present moment as possible? But of course, how often can the House really be expected to take over the task of electing a president? How likely is it, in point of fact, that the Electoral College will produce a deadlock? Is it really a problem, in short, if the Representatives of yesterday maintain the theoretical ability to choose the president of tomorrow? Well, yes, in fact, it is. History has shown us nothing less.