Ackerman tells this story differently than most because he pays constant attention to context, to how what went before this period differed from everything that came after. Here we see Thomas Jefferson, who opposed both parties and strong presidents, play a key role in developing the two-party system and the plebicitarian presidency, effectively placing the executive in charge of a large section of the legislature. At the same time we see John Marshall's well-known role in developing the Supreme Court's anti-democratic power to overrule the Congress. But we see all of this through an understanding that the people involved were trying to govern with a Constitution that had not been designed for parties and that did not anticipate numerous possibilities, putting the nation right on the brink of collapse or civil war.
Ackerman opens with these lines:
"For a week in February 1801, America teetered on the brink of disaster. The electoral college had deadlocked, and the job of picking the next president fell to the House of Representatives. Vote after vote was leading nowhere -- after thirty-five ballots, still no president of the United States."
Why not? Well, for one thing, the Constitution had been designed to elect individuals rather than party tickets, and nobody had thought to fix this yet with the Twelfth Amendment, since Washington and Adams had been elected as individuals with the candidates who came in second serving as vice president. Delegations in the House were voting as states and giving neither Jefferson nor Burr the required majority. (The electoral college had left it a tie, at least as Jefferson -- who was at the time vice president of the country and president of the Senate -- had chosen to count the votes). The House was not the newly elected House which would have swept Jefferson in with a large majority, but the lame-duck House consisting of representatives elected before the "revolution of 1800".
Meanwhile the Federalists were scheming to install an interim president and hold a new election. John Marshall was writing under a pseudonym, pushing legal interpretations that would have made him the president. President Adams was packing the courts with Federalist judges, including with now-Justice and still simultaneously Secretary of State Marshall. And Jefferson was threatening to bring the militias of Virginia and Pennsylvania to town to shed a little of that blood of tyrants he was always talking about.
And this was all over the question of who would serve as president, but not as the president created in the Constitution, rather as the presidential leader of a party swept into office with a mandate for change. Congress was abandoning its Constitutional role as the leading branch of government responsible to its local districts, in order to fight over which national party would hold the White House. And in the process, the Constitutional amendment procedures for adjusting our highest law to meet the changing times was replaced with the procedure whereby presidents ram unconstitutional changes through Congress, and the Supreme Court codifies them as newly constitutional. Marshall's court would likely not have developed this power (which really came alive much later) had Jefferson's push to impeach and remove one of Marshall's colleagues on the Supreme Court not been narrowly defeated in the Senate, with Marshall on deck for the next impeachment and Burr presiding over the impeachment while under indictment for the murder of Alexander Hamilton. Out of this came a higher standard for impeachment that has allowed abuses to go unchecked for centuries.
But nobody seemed to know much of what was happening when it was happening, and just about everybody who did it didn't want it done. The Federalists denounced the Republicans not for being the lesser party but for being a party, period. And the Republicans returned the favor. Each group thought of itself as above partisanship, which had become real but had not yet become acceptable.
Now we're stuck with a president-heavy pseudo-republic with five goons in black robes as the highest authorities and two parties as the major branches of government.
Or are we?
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).