The Constitution in the Balance

Steven Hayward

November 1, 2000

For weeks the favorite parlor game was to predict whether the 2000 election would be a rerun of 1960 or 1980. With the polls showing a close contest, Democrats hoped it would be a rerun of 1960, when Kennedy prevailed in a harrowing close contest. Republicans hoped for a rerun of 1980, when undecided voters broke heavily for Reagan in the last week and transformed a close contest into a landslide.

At first glance it seems obvious that it turned out to be 1960 redux. In the messy aftermath, however, we may be looking at the wrong century for our examples. The historical models for this election are 1860 (not 1960), and 1800. In 1860, of course, a faction of the nation refused to recognize the result of the election that elevated Lincoln to the White House with less than 50 percent of the popular vote, and the losers retreated to the principle that people who dissent from the result of an election can nullify it through the expedient of secession. As attractive as conservatives might find the secession of the northeast and the Left Coast today, it is not going to happen today.

But a mortal wound to the Constitution cannot be ruled out. For the first 48 hours after the election, Democrats sounded the refrain that because Gore had (apparently) won the popular vote, the Electoral College should fall out this way, too. The Democrats have long been the party of the “living” Constitution, which means in practice that the written Constitution is dead. If the commerce clause, the takings clause, and the Second Amendment are to be denied their plain meaning, as Democrats argue, then why should not the plain meaning and logic of the Electoral College be superseded as well?

Yet the endgame of the 2000 election could follow the model of the election of 1800. The election of 1800 pitted the declining Federalist party against the upstart Republican party, but it became a confused three-way contest between John Adams, Thomas Jefferson, and Aaron Burr (who, for our purposes, looks something like the Ralph Nader of his day). The Electoral College in that election deadlocked, and required 36 ballots over six days before Jefferson was finally chosen to be the nation’s third President. The election contest preceding this test of strength displayed a level of bitterness and invective that makes our own recent contest seem a model of polite decorum and restraint by comparison. Alexander Hamilton, who was the Pat Buchanan of his day, attacked Jefferson, saying Jefferson’s politics were “tinctured with fanaticism. . . he is not scrupulous about the means of success, not very mindful of the truth, and . . . he is a contemptible hypocrite.” The incumbent President Adams called Hamilton “a man destitute of every moral principle.” The Republicans called the Federalists “monocrats” or “monarchists,” while the Federalists called the Republicans “jacobins,” summoning forth the image of the guillotines of the French revolution. Calling Al Gore a “big government liberal” or a “serial exaggerator” is tame by comparison.

That is most significant about the election of 1800 is that it marked the first time in history that one party replaced another party through the means of a peaceful free election-ballots instead of bullets, as the saying goes. The Federalists acceded to the Republican triumph, even though it spelled their doom. Hence the stage was set for the statesmanship of Jefferson’s first inaugural address, in which he sought to explain to a young nation why a difference of opinion did not necessarily entail a difference of principle.

Jefferson referred directly to “the animation of discussions” that had taken place in “the contest of opinion through which we have passed.” Jefferson warned: “Let us reflect that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, as capable of as bitter and bloody persecutions.” Jefferson then moved to the most famous passage of his address: “We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists. . . Let us, then, with courage and confidence pursue our own federal and republican principles, our attachment to union and representative government.”

Jefferson’s address shrewdly held out the hand of friendship to his defeated foes, but in such a way as to isolate the die-hards who might wish to resist the election result by any means, which would have entailed the end of the nation’s constitutional union. This is exactly what would happen in 1860. Whether the current contest becomes a full-blown constitutional crisis depends on which historic election the Democrats take as their model, 1800 or 1860. The nation holds its breath.

Steven Hayward is senior fellow at the Pacific Research Institute in San Francisco, and an adjunct fellow of the Ashbrook Center.