Guest Essayist: James Legee


The election of 1804 is markedly less significant than the “Revolution of 1800.”  While the triumph of Jefferson’s Democratic-Republicans over Adams and Hamilton’s Federalist Party is noted by Jefferson as an event that “will ameliorate the condition of man over a great portion of the globe,” 1804 failed to merit such hope for the future of humanity.  It would, however, measure the ability of the new Constitution to remedy itself through the amendment process and lead us to questions on the nature of the executive branch and what representation in a republic means.

The election of 1800 proved that a peaceful transition of power from one political party to another was possible, but it brought to the fore a flaw in the new Constitution.  Chiefly, it was unprepared to handle a political system in which parties existed.  Prior to 1803 the Electoral College cast ballots for candidates individually, that is to say, whoever got the most ballots became president, whoever received the next greatest amount was to be vice president.  In the case of a tie, the House of Representatives was to decide.  This had, in practice and theory, served the nation over the first two administrations.

In the midst of the ratification debate, Hamilton as Publius in Federalist 68 lauded the mode of electing the President, “[if] it be not perfect, it is at least excellent.”  Hamilton goes on to discuss the way in which the republican nature of the Electoral College safeguards the Executive from intrigue domestic and insulates it from foreign influence.  The presidency, dependent upon the people, would attract “characters preeminent for ability and virtue.” The rise of parties was so unexpected by the framers that the executive branch would be the first major reform.

In regards to electoral politics, the election of 1800 proved more sordid, with Jefferson and Aaron Burr tying for President.  The Democratic-Republicans had intended Jefferson to be President and Burr as Vice President, but Federalists saw an opportunity to confound their rivals and perhaps install a president more easily swayed than Jefferson.  As a consequence, the vote moved to the House of Representatives. There were 35 unsuccessful votes, when finally on February 17 of 1801 the 36th Ballot led to Jefferson’s election over Burr – with help from Federalist leader Alexander Hamilton, given his valid doubts over Burr’s character.  This bitter fight led to the same tensions that plagued the Adams/Jefferson administration, and would contribute to Hamilton and Burr’s fateful duel.  Most significantly, it led directly to the passage of the 12th Amendment.

In response to this gridlock in appointing the chief executive, as well as the resentment that grew out of the Adams/Jefferson and Jefferson/Burr tickets, the 12th Amendment was proposed in the House in December of 1803 and ratified by the summer of 1804.  Effectively, rather than vote for two candidates, with the highest recipient becoming president and second highest becoming vice president, the tickets were separated.  Electors voted for a presidential candidate, then cast a second vote specifically for a vice presidential candidate.  Additionally, it narrowed the pool of candidates electors could vote for in the event no candidate received a majority from 5 to 3.  The same qualifications already in Article II for executive and for electors still applied.  Today, this is all fairly straightforward and unchanged from 1804, when the new system successfully brought President Jefferson and Vice President George Clinton to a second term of office.

The 12th Amendment does not seem to bring very much to bear on the course of American governance; it appears at first blush a procedural change to accommodate the rise of parties.  However, at closer examination, two fundamental questions arise.  The first is the role of the vice president and republicanism in presidential elections.  Federalist 68, one of the only to mention the vice president, Hamilton contends that the office should attract an “extraordinary person,” given the role as President of the Senate and potential successor to the President.  Outside of these two tasks though, what role does the vice president play?  This is not clearly defined by the Constitution, but let’s consider Hamilton’s exhortation that the mode of election be republican and dependent upon the people.  Before the 12th Amendment, the vice president could have served as a representative of the minority view in the executive.  In fact, Jefferson wrote of the Vice Presidency in a 1797 letter to Eldridge Gerry, “those who may endeavor to separate us, are probably excited by the fear that I might have influence on the executive councils; but when they shall know that I consider my office as constitutionally confined to legislative functions…” Jefferson opposes the idea of the Vice President as a partisan foil to the President, but it is illustrative that the idea existed prior to 1800.

We see, in part here, the defect of the Convention in not better anticipating partisanship both among the political class and among the citizenry.  The vice president, as the office was originally appointed, could have served as a voice for the minority in the executive branch.  As a consequence of the 12th Amendment, to some extent, this is lost.  Given the life appointments of the Supreme Court, and the reflective nature of the legislature being appointed by state governments and directly chosen by the people, all principles of the people are manifest.  The executive branch, while tempered in government by checks and balances, is in effect, a reflection of only majority will of the people.  Every other branch of government is more reflective of the people themselves.  Is the presidency republican if the minority is not represented?  Certainly the hope for an impartial executive that represents the whole of the people has only remained a hope, and to some, would in fact be a dereliction to the majority.  Conversely, should something happen to the President, is it republican that the representative of the minority take control of the executive branch?

A second major consequence of the 12th Amendment is the rise of parties and unintentional support of a two-party system.  The vice president became an electoral tool for parties to build coalition support for a ticket, rather than find Hamilton’s “extraordinary person.”  The second name on the ticket is useful in building regional coalitions, and as America’s demographics shift, could be useful in mobilizing demographic blocks.  However, the need to build a broader base of support can act as a moderating influence, much in the way a split administration suggested above could.  Indeed, it is likely a better solution, as an executive that fails to function could harm public faith in government, as much as an overzealous executive.

In limiting the option of electors from 5 to 3 in the event of no candidates receiving a majority of votes, the 12th Amendment helps to constrain America’s political system to two parties.  The two-party system is confounding to Americans who possess beliefs somewhat outside of the mainstream; Greens, Libertarians, etc.  It lends itself to an executive branch reflective of the majority, but in republican government, is this necessarily a flaw?  In order to protect the rights of both the majority and minority from passions inflamed by circumstance, does there not need to be a distillation of extremes – Libertarians siding with Conservatives, Progressives with Democrats – to keep the system running, sensitive to the desires of the minority of Americans, but reflective of the majority?

The election of 1804, and the success of the 12th Amendment, has aided in the survival of the American Republic for nearly 240 years.  Questions of how active, and how reflective, we want the executive may remain, but we are perhaps well served by the efforts of the Founders to alleviate the impact passion has on the execution of the law.

James Legee; Program Director at the Freedoms Foundation at Valley Forge (

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    A very interesting and appreciated essay mostly dedicated to the election process.

    Excellent points/questions regarding the balance of republicanism, majority/minority interests, and workable process, etc.

    I have often wondered if other Republican governments based on building coalitions of several parties is not an improvement on our system. They typically include a provision for “no vote of confidence.” in which the peoples branch [House of Representatives] can force the Majority/Coalition branch [Executive] to be reviewed and reappointed by the people. We have seen it can bring about chaos in less stable societies. But has worked well in Israel and Great Britain, which is more closely aligned with US society/norms than other societies where chaos seems prevalent regardless of system of government.

    Anyway, thank you for the educational and thought provoking essay.



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