Guest Essayist: Professor Joerg Knipprath


Today, having the House of Representatives elect the president seems strange, almost freakish. But to the Framers, the participation of the House in this process was expected to be common-place. The problem arises out of the practical need for at least a two-step procedure. There first must be a mechanism to nominate a number of candidates for the office and, second, a process to select the winner from those nominees.

In modern elections, the first step occurs through the political parties and their primaries, caucuses, and conventions. The second happens when the people vote or, more accurately, when the electors selected by the people under state law cast their votes for president. In 1787, however, the advent of the modern programmatic political party was still in the future. Political organizations had more the structure of classic “factions,” that is, as James Madison wrote in Federalist 10, “a number of citizens, whether amounting to a majority or minority of the whole, who are united or actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

The first half of Madison’s definition is descriptive. A faction has no permanence. It is born from a hot political issue of the moment or, in classic republican forms, coalesces around a charismatic leader. Hence, it dissolves when that issue is resolved or, unless a successor appears, the charismatic leader dies. The second half of the definition, characterizing the faction as contrary to the general interest of the community, reflects a pejorative view common among serious republicans, then and now. As Madison described the constitutional structure, it was set up, in significant part, to control the destructive effect of factions, an effect most pronounced in governments resting on participation by the public.

Hamilton, writing in Federalist 68, saw the mechanism to elect the president in similar vein. Having a body of citizens (themselves selected by qualified voters or by the state legislatures) choose candidates for the office of president balanced the desire for popular participation with the realistic concern that direct popular election would promote individuals with, as Hamilton sneered, “talents for low intrigue, and the little arts of popularity.” Direct popular election would inevitably be driven by popular passion, magnified by the influence of organized factions, and produce candidates whose main attraction would be “those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.” Corruption and the influence of faction would be avoided by the temporary tenure and limited duty of the electors, the disqualification of federal office-holders from the position, the relatively large number of electors, and the fact that they meet in their respective states at the same time.

Nominating the candidates would be the role of the Electoral College; electing the president from those nominees would fall to the House of Representatives. The nominating process was likely to result in a collection of “favorite-son” selections of state politicians by electors voting in their respective states. A smaller number of well-respected regional candidates likely also would be nominated, since each elector cast two votes, at least one of which had to be for someone from another state. Thus, it was thought natural that no one (at least after George Washington) would receive a majority vote of electors, and that the House would choose the president.

A problem was that the influence of faction could not be so readily dismissed once the House of Representatives became involved. Indeed, Hamilton and Madison had repeatedly acknowledged in The Federalist that factions, arising out of human nature itself, sooner or later appear in all deliberative bodies. Hamilton tried to assure his readers that there was little concrete danger regarding the election of the president by the House, because congressmen have to worry about re-election and will avoid corrupt bargains that are odious to the voters.

In Federalist 6, Hamilton urged readers to “[L]et experience, the least fallible guide of human opinions, be appealed to for an answer” to the questions raised in the debates over the Constitution. At least as regards the election of the president, experience soon exposed the weaknesses of the constitutional design, including the role of the House. By 1800, the First American Party System, as it has been called, was fully operational. Each party’s members in Congress, (Jeffersonian) Democratic-Republican and Federalist, chose the presidential and vice-presidential nominees in coordination with state party structures who designated the electors and directed their votes.

The Federalists opted to re-nominate President Adams and chose South Carolina’s Charles Cotesworth Pinckney—the cousin of the 1796 Federalist vice-presidential nominee, Thomas Pinckney—as his running mate. The Republicans, maintaining the Virginia-NewYork political axis that they had formed prior to the 1796 election, re-nominated Jefferson and Aaron Burr. Since each elector cast two votes, Jefferson and Burr each received 73 votes to 65 for Adams and 64 for Pinckney. One Federalist elector cast his second vote for John Jay, to insure that Adams would be president if the Federalist candidates prevailed. The Jeffersonians had blundered by failing to account for this possibility, with the resulting tie between Jefferson and Burr throwing the election into the House. In a bit of humorously clumsy political trickery, one New York elector voted twice for Burr, but his infraction was discovered and one of his two votes reassigned to Jefferson.

Although it was well known that the Democratic-Republicans wanted Jefferson as president, Burr refused to budge. The winner required an absolute majority in the House, but a majority determined by number of states, not members. With 16 states in the Union, 9 states were needed to settle the election. Matters were complicated further by the fact that the outgoing, lame-duck House membership, controlled by the Federalists 60-46, would decide the election, rather than the new House, controlled 68-38 by the Jeffersonians.

Through 35 ballots, including an all-night session, the House remained deadlocked. The seven delegations fully controlled by the Jeffersonians all voted for Jefferson over Burr, as did one Federalist state. But two states were tied, and six voted for Burr. Many Federalists in the House supported Burr, a savvy (or, from a different perspective, “cynical”) politician over the dangerous “Jacobin,” Jefferson. Talk became more strident, including exhortations to prevent the election altogether. Virginia militia were rumored to be preparing to march on the capital. On the other side, some die-hard Federalists saw this as an opportunity to refuse to turn over the government. Fortunately for the young republic, President Adams would have none of that.

Eventually, the Federalists’ hopes about Burr were dashed. The New Yorker refused to promise them anything. Relief for Jefferson came in the unlikely person of his long-time political and ideological nemesis, Alexander Hamilton. Not long before the election, Hamilton had persuaded New York’s governor, John Jay, to change the state’s election law in an ultimately unsuccessful maneuver to prevent “an atheist [emphasis in the original] in religion and a fanatic in politics”—Jefferson—from winning the state’s electoral votes and becoming president. Yet by early, 1801, Hamilton saw Jefferson as, by far, the lesser evil. Jefferson let it be known discreetly that he would not scuttle the new Navy or dismiss Federalists from lower offices that they already held. Hamilton, in turn, persuaded three Federalist congressmen to cast blank ballots in the 36th round of voting. Jefferson received the backing of ten states and was elected president. Hamilton’s effort on behalf of Jefferson was seen by Burr as another, but not yet the last, in a series of affronts. Eventually, Burr’s abiding resentment of his rival in New York politics led to their ill-fated duel in 1804.

To prevent such electoral stalemate in the future, the 12th Amendment, adopted in 1804, provided for separate, distinct votes for president and vice-president. The political storm that had broken in the “Revolution of 1800” soon washed away the Federalist Party. However, unsurprisingly, factionalism survived and led within a generation to another critical presidential election decided in the House of Representatives.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at:

2 replies
  1. Ron
    Ron says:

    Knowing the history of how and why electors, rather than popular votes, determined the outcome of presidential elections is important. Sadly, few modern Americans know this history or even care about it. The 17th Amendment 100 years ago and the populist drive today for the winner of the popular vote being named president is leading us far from the Republic our Founding Fathers envisioned.

  2. Publius Senex Dassault
    Publius Senex Dassault says:

    “Direct popular election would inevitably be driven by popular passion, magnified by the influence of organized factions, and produce candidates whose main attraction would be “those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.” Juliette’s essay to Millennials documents this problem in the general election. However, I believe this has become and even greater danger and problem in selecting Presidential candidates than in the actual election. I believe Hamilton was correct and direct popular elections are problematic, out down right dangerous.

    There is another issue with the current primary process. The Public is under writing the costs of Republican and Democratic primaries. The separation of church and state doctrine, which originates from single private letter from Jefferson, is constantly challenging the use of public funds for religious purposes. How is it that public funds are used routinely and without question to help two of numerous political parties select their candidates. If a party wants to run a direct popular election process to select their candidates, let them pay for it.

    Perhaps a modification of paragraph 5 in the essay would be a better starting point. Each State along with the DC submits a nominee from that State to the Electoral College on March 31st. The Electoral College selects 5 to 9 primary candidates on May 15th. The candidates select their VP running mate from the State nominee prior to primary election to occur on the 1st Tuesday in August. The top three candidates enter a run off election to occur on the 1st Tuesday in November. The President is elected based on winning the most congressional districts. Both the dangers of a direct popular election AND the current disenfranchisement of entire States and Regions of the current process are avoided.

    The primary could be based on either direct popular votes or congressional districts.



Join the discussion! Post your comments below.

Your feedback and insights are welcome.
Feel free to contribute!

Leave a Reply

Your email address will not be published. Required fields are marked *