Because the past is always behind them, historians are fated never to quite catch up with it. But sometimes they get closer to doing so because the present catches up with them first. Recently, that became my good fortune: current events offered me a new slant on the past. The result is my recent JER article, “The Election of 1801 and James A. Bayard’s Disinterested Constitutionalism.” Here’s how it happened:
Already a student of anomalous political events and locales—the Hartford Convention of 1814, for instance, and the state of South Carolina[1]—I turned my attention some years ago to a unique moment in American political history: the weeks in early 1801 when, by provision of the Constitution of the United States, members of the House of Representatives were called upon to resolve an electoral tie vote between Thomas Jefferson and Aaron Burr, both candidates for the presidency of the United States and both members of the same, young Democratic-Republic Party. Hanging in the balance, a mere 12 years after the Constitution had been put in motion, was American constitutional government itself. If a new president wasn’t chosen by inauguration day, March 4, 1801, federal government paralysis, armed violence, extra-legal workarounds, even a second constitutional convention were possible results.
How had things gotten to this point—and so early in the Constitution’s history? Due to an oversight in the document’s drafting and the emergence of the very “factions” that the Constitution had been written in part to contain, electors in the states hadn’t been required to designate which one of their party’s two candidates was meant to be the White House occupant, which one the vice-president.[2] Because of the resulting inadvertent tie between Jefferson and Burr, members of the House, voting by states rather than individually, had to resolve the dead heat. There lay the problem: their Federalist opponents would be involved in deciding the outcome.
Historians have long considered that fateful choice a mere footnote to the so-called “Election of 1800,” in which voters in each state chose between the Jefferson–Burr ticket and Federalist Party candidates: incumbent president John Adams and his running mate, Thomas Pinckney of South Carolina. But around 2015, I had become convinced that the 1801 House tie-breaker was not merely a political event. Instead, it was a major constitutional event; in fact the first constitutional crisis in American history, a crisis that, if left unresolved, might have led to the failure of the Constitution of 1787. That meant re-considering the role played by James Ashton Bayard, a Federalist serving at the time as Delaware’s sole representative in the House of Representatives, in ending it.