The Failure of the Founding Fathers
In The Failure of the Founding Fathers, Bruce Ackerman rejects the notion of an unchanged “original understanding” of the American Constitution, arguing that the political crisis in 1801 led to profound changes in the constitutional role of the president that were unforeseen, indeed considered undesirable, by the Framers of the 1787 Constitution. Unlike many legal scholars, Ackerman does not hold the Founding Fathers in high esteem. “In designing the presidency,” he asserts, “the Framers made blunder after blundersome excusable, others not.” Ackerman blames those blunders for bringing the nation to the brink of civil war in 1801.
Ackerman’s criticism of members of the 1787 Constitutional Convention for not foreseeing the rise of political parties is unjustified. Delegates who remembered clashes with colonial governors thought of the executive as a threat to liberty, legislatures as the defenders of freedom. They equated parties with undesirable factionalism that advanced private interests over the public good. They could not have foreseen the emergence of a popularly elected president claiming a mandate for change.
The convention adopted a procedure designed to keep the people as far away as possible from choosing a president. Everyone knew George Washington would be unanimously elected. The problem they struggled with was, in a country as geographically and culturally diverse as the United States, how to discover who had the support of the greatest number of men of substance. To solve the problem, they set up an electoral college in which each member would have two votes. Assuming that one vote would normally be for a local worthy, they forced each elector to cast a second vote for a nonresident of his state. Because few, if any, were expected to achieve a majority, the electoral college served, in effect, as a nominating body, sending the House of Representatives the names of five Americans winning votes outside their own states. To reassure the small states, the convention agreed that the House would vote by states, a majority of states being necessary for election. If two candidates tied with the votes of more than half the number of electors, the decision again went to the House.
In the late 1790’s however, organized groupings appeared, passionately divided over foreign affairs. Those favoring revolutionary France called themselves Republicans; those favoring England supported the administration, calling themselves Federalists. In the 1800 election everyone knew that John Adams and Charles Cotesworth Pinckney were Federalist presidential and vice presidential candidates, respectively, while Thomas Jefferson and Aaron Burr were Republican contenders. When word of the electors’ votes trickled back to Washington in December, Republicans discovered they had blundered. Unlike the Federalists, one of whose electors had scuttled Pinckney, putting Adams one vote ahead, all Republican electors had faithfully voted for both Jefferson and Burr, sending the election to the House of Representatives.
Republicans had a clear majority of states in the House elected in 1800, but the Founding Fathers assigned the decision to the lame-duck House chosen in 1798, where Republicans were one state short of victory. Federalists would decide who became president and, Ackerman remarks, ardent Federalists who abominated Jefferson were not disposed to award him the office just because he had won the election. The rules gave them the chance to find a more malleable candidate. When the House met on February 11, 1801, to decide the election, Federalists unanimously voted for Burr, even though he remained silent in Albany, earning the dislike of each party for not openly siding with them.
Extreme Federalists wanted to continue the deadlock through the rest of the session. In what Ackerman considers another original blunderalong with the double vote for electors and allowing a lame-duck House to decide the electionthe Convention had failed to consider what happened if no one were chosen by inauguration day, March 4. The first Congress provided that the president pro tem of the Senate would be acting president when the president and vice president were incapacitated. Federalists were a majority in the Senate; perhaps, if the deadlock were maintained, they might make one of their own acting president.
A pamphlet by “Horatius” suggested that government officers, with the secretary of state first, would be better choices for acting president than senators. Ackerman argues on stylistic grounds that John Marshall, still secretary of state as well as chief justice, wrote the...
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