Because the past is always behind them, historians are fated never to quite catch up with it. But sometimes they get closer to doing so because the present catches up with them first. Recently, that became my good fortune: current events offered me a new slant on the past. The result is my recent JER article, “The Election of 1801 and James A. Bayard’s Disinterested Constitutionalism.” Here’s how it happened:

Already a student of anomalous political events and locales—the Hartford Convention of 1814, for instance, and the state of South Carolina[1]—I turned my attention some years ago to a unique moment in American political history: the weeks in early 1801 when, by provision of the Constitution of the United States, members of the House of Representatives were called upon to resolve an electoral tie vote between Thomas Jefferson and Aaron Burr, both candidates for the presidency of the United States and both members of the same, young Democratic-Republic Party. Hanging in the balance, a mere 12 years after the Constitution had been put in motion, was American constitutional government itself. If a new president wasn’t chosen by inauguration day, March 4, 1801, federal government paralysis, armed violence, extra-legal workarounds, even a second constitutional convention were possible results.

How had things gotten to this point—and so early in the Constitution’s history? Due to an oversight in the document’s drafting and the emergence of the very “factions” that the Constitution had been written in part to contain, electors in the states hadn’t been required to designate which one of their party’s two candidates was meant to be the White House occupant, which one the vice-president.[2] Because of the resulting inadvertent tie between Jefferson and Burr, members of the House, voting by states rather than individually, had to resolve the dead heat. There lay the problem: their Federalist opponents would be involved in deciding the outcome.

Historians have long considered that fateful choice a mere footnote to the so-called “Election of 1800,” in which voters in each state chose between the Jefferson–Burr ticket and Federalist Party candidates: incumbent president John Adams and his running mate, Thomas Pinckney of South Carolina. But around 2015, I had become convinced that the 1801 House tie-breaker was not merely a political event. Instead, it was a major constitutional event; in fact the first constitutional crisis in American history, a crisis that, if left unresolved, might have led to the failure of the Constitution of 1787. That meant re-considering the role played by James Ashton Bayard, a Federalist serving at the time as Delaware’s sole representative in the House of Representatives, in ending it.

James A. Bayard, head-and-shoulders portrait, right profile. Engraving by Charles Balthazar Julien Fevret de Saint-Mémin, 1801. Courtesy of Library of Congress, https://www.loc.gov/pictures/item/2007676941/.

It was Bayard whom historians had long acknowledged to have been the central figure in resolving the electoral tie and thus allowing constitutional government to continue without interruption. He managed to do so only after coming, so it is thought, to some late-in-the-process political understanding with Jefferson’s camp to withhold Delaware’s vote for both candidates in return for Jefferson’s going easy on Federalist policies and officeholders. Bayard honored his part of the purported bargain on the 36^th House ballot. That oblique act, joined by two other state delegations, allowed the House, each state casting one vote, to choose Jefferson over Burr. But for his abandonment of his party brethren, Bayard paid a price. He lost re-election the next year to a Democratic-Republican.

Bayard’s role in electing Jefferson was undeniable. But no less consequential was the fact that by withholding Delaware’s vote Bayard had—no small matter—staved off the possible collapse of constitutional government. What’s more, the price of his doing so was enormous: the triumph of the Democratic Party, controlled by southern slave-holding states, whose successive administrations would govern the nation with few interruptions for the next 60 years.

Yet it seemed to me that historians had missed the full significance of Bayard’s decisive act even though it was staring them in the face. Its significance lay in the way Bayard explained it undeviatingly ever afterwards—in constitutional terms. “Imperious necessity,” he wrote, had led him to act against his own party’s obstructionism “so to act as not to hazard the Constitution upon which the political existence of the State depends.”[3] But historians had tried neither to understand nor to credit his statements. My growing conviction was that the House election was more than a pendant to the so-called Election of 1800. It was in fact a major constitutional event and, to boot, the first in the nation’s history. I began to write.

Then along came Donald J. Trump with his heedlessness of constitutional and other civic norms and, again, what had portended in 1801: government paralysis, armed violence, extra-legal work-arounds, and, as many Republicans are now advocating, a second constitutional convention. By 2020, not only had conditions begun to mirror those of 1801, but Republicans, like Federalists, had begun uniformly to obstruct normal constitutional government.

Liz Cheney takes the oath of office, January 4, 2017. Courtesy of Wikimedia Commons, https://commons.wikimedia.org/wiki/File:Liz_Cheney_oath_of_office_15826579.jpg.

Yet it was not until Congresswoman Liz Cheney broke decisively with her fellow Republicans, accepted the vice chairmanship of the House committee empanelled to investigate the January 6, 2021 attack on the Capitol, and unlike most other Republicans decisively and publicly turned on the former president that I understood the full significance of Bayard’s long-ago act and the full implication of his justifications for it. Just like Representative Cheney, Bayard had fallen on his sword on principle—in defense of the Constitution as the Constitution. Like her, he had acted to preserve American constitutional government without regard to any particular interpretation of the Constitution, indeed in defiance of his party’s burn-the-house-down opposition to both Jefferson and Burr. Like Cheney, Bayard had stepped forward to save the Constitution simply because it was the Constitution—period. His, like hers, was one of the rare disinterested political acts in American history, one taken in the full light of day.

Thus did a historical moment in my own life lead me to see a past event in a new light. Without having witnessed the extraordinary political courage of Liz Cheney, I might have missed the meaning that lay unrecognized in Bayard’s words for almost 225 years. Congresswoman Cheney, acting in the present, had given new meaning to the past.

These kinds of contrapuntal transactions between past and present often guide historians in their search for understanding of the past. They never know when mirrorings of past and present will occur. Nor do they know when a person whose politics are not their own will open the door to the acts of a past figure whose politics would probably not have been theirs either. But now, if either Bayard or Cheney were to walk into the room where I write these words, I’d rise to my feet and, their politics and policies aside, salute them both for their fortitude in standing up for the Constitution for a single, simple reason—because it’s the Constitution of the United States. No other reason would be needed to get me to my feet.

Endnotes

[1] James M. Banner, To the Hartford Convention: The Federalists and the Origins of Party Politics in Massachusetts, 1789–1815 (New York, 1969); and Banner, “The Problem of South Carolina,” in The Hofstadter Aegis: A Memorial, ed. Stanley Elkins and Eric L. McKitrick (New York, 1974), 60–93.

[2] This problem was solved by the adoption of the 12th Amendment to the Constitution.

[3] Bayard to Alexander Hamilton, Jan. 11, 1801, and Mar. 8, 1801, in The Papers of Alexander Hamilton Digital Edition  ed. Harold C. Syrett (Charlottesville, VA, 2011).