The Laboratorium (3d ser.)

A blog by James Grimmelmann

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The Nation Learns to Move On

I have been thinking about presidential elections and presidential succession, and about the adage that the United States has had the longest uninterrupted history of peaceful transitions of power in the world. What does it take to lay down a track record like that? A lot of choices by a lot of people.

  • The election of 1788 was the first under the new Constitution, immediately after the Articles of Confederation had failed badly. The Constitution created a much stronger executive; George Washington had a lot of freedom to decide what the presidency would look like in practice. He chose to limit his own power. He didn’t have to.
  • The election of 1796 was the first orderly succession from one president to the next. Washington chose to retire. He didn’t have to. It was also the first seriously contested partisan presidential election. Thomas Jefferson and the Democratic-Republicans accepted the results. They didn’t have to.
  • The election of 1800 was the first orderly succession from one party to another. John Adams and the Federalists had tried to suppress the Democratic-Republican press while in office, and the lame-duck Adams administration tried to stuff the federal judiciary with the “midnight judges,” touching off the near constitutional crisis of Marbury v. Madison. But they accepted the results and Adams left office without a fight. He didn’t have to. The election of 1800 was also by far the most closely contested election to date: the Electoral College vote was a tie, and the House of Representatives required thirty-six ballots over seven days to settle on Jefferson instead of his nominal running mate, Aaron Burr. While serving as vice-president, Burr shot and killed Alexander Hamilton in a duel; he was charged with murder but never tried. I’m not sure whether letting Burr walk counts as a contribution to or against governmental stability.
  • The election of 1804 was not itself closely contested or controversial. But the Democratic-Republicans used the election to replace Burr with George Clinton as vice-president. After the election, Burr traveled and schemed extensively in the West, was tried for treason and acquitted, and lived in exile for several years. Both Burr and Jefferson accepted an outcome that must have satisfied neither.
  • The election of 1808 made a genuine precedent out of Washington’s choice to limit himself to two terms. Thomas Jefferson chose to retire. He didn’t have to.
  • The election of 1812 took place during the War of 1812. James Madison went ahead with the election during wartime. He didn’t have to.
  • The election of 1824 was the the first election in which the winner of a clear plurality of the popular vote and of the electoral vote was not elected president. The Twelfth Amendment (which had been enacted to prevent messes like the one of 1800 and only partially succeeded) sent the election to the House, which chose John Quincy Adams. Andrew Jackson’s supporters denounced the “corrupt bargain,” but Jackson accepted the outcome. He didn’t have to.
  • The election of 1840 itself was not a crisis, but it created one when William Henry Harrison died barely a month after taking office. The rest of the government accepted that John Tyler would be the president, rather “Vice President acting as President.” It didn’t have to. Then Tyler provoked his own crisis by vetoing legislation to create a national bank. His cabinet resigned in an unsuccessful attempt to force his own resignation, and the Whigs expelled him from the party. But they didn’t try to push the issue further. They could have.
  • The election of 1852 featured a candidate who was an active-duty general. Winfield Scott was Commanding General of the United States Army when he ran as a Whig. He didn’t order soldiers to put him in office after his defeat. He could have.
  • The election of 1860 is the exception that proves the rule. After Abraham Lincoln’s victory, the southern states refused to accept the legitimacy of his presidency and seceded from the union. It took the Civil War to settle that Lincoln really was the president of all of the United States.
  • The election of 1864 featured a candidate who was an active-duty general during a major war. George McClellan resigned his commission on Election Day and then accepted his loss to Lincoln. He didn’t have to. Andrew Johnson, who became president after Lincoln’s assassination, so thoroughly botched and obstructed Reconstruction that the House impeached him. He was acquitted in the Senate by one vote. Although he was Commander-in-Chief, he didn’t call in the Army to take his side and keep him in power. He could have.
  • The election of 1868 took place without Texas, Mississippi, and Virginia: the former Confederate states had not yet been readmitted to the union. They could perhaps have resisted the results, but military occupation would have made that difficult.
  • In the election of 1872, the runner-up, Horace Greeley, died after the popular vote but before the electoral vote. Greeley’s electors split among four living candidates, plus Greeley himself. He hadn’t received even close to a majority, so no one raised much of a stink. In theory, someone could have.
  • The election of 1876 was either stolen or sold. Democrat Samuel J. Tilden won a outright majority of the popular vote and perhaps a majority of the electoral vote. But in three states, claims of fraud and violent intimidation put the states’ electoral votes in doubt, and in a fourth, there was a dispute over an elector’s eligibility. Congress appointed an electoral commission, which voted 8-7 to give the disputed electoral votes to the Republican Rutherford B. Hayes. Despite referring to him as “Rutherfraud” and “His Fraudulency,” Democrats accepted the outcome thanks to a back-room deal in which the Republicans agreed to end Reconstruction. They didn’t have to.
  • In the election of 1888, Grover Cleveland won a plurality of the popular vote but lost to Benjamin Harrison in the electoral college. Cleveland, the incumbent, accepted his defeat and left office. He didn’t have to.
  • In the election of 1912, the Republican incumbent William Howard Taft and the former Republican ex-president Theodore Roosevelt together took over half of the popular vote, but thereby handed Woodrow Wilson the electoral college victory by splitting the vote. Taft and Roosevelt accepted their (loosely defined) party’s defeat. They didn’t have to.
  • In the election of 1940, Franklin Delano Roosevelt broke Washington’s precedent by being elected to a third term. His popularity kept anyone from making too big a deal of it.
  • In the election of 1944, Roosevelt broke the precedent even further by being elected to a fourth term. His popularity, during a major world war, kept anyone from making too big a deal of it.
  • In the election of 1960 there were allegations of significant voting fraud in Illinois and Texas. John F. Kennedy won both, and with them the election, but if Richard Nixon had won them both, he would just barely have eked out an electoral college victory. Although Republicans unsuccessfully tried to challenge some of the counts, Nixon made and kept a promise to accept Kennedy’s election. He didn’t have to.
  • In the election of 1972, Nixon won handily. But less than two years later, he resigned in the face of an impending impeachment when his administration’s attempt to manipulate the election – and then cover up its tracks – came to light in the Watergate scandal. (This is not the place to discuss all of the constitutional crises Nixon created while in office and being driven from it; my focus here is only on presidential succession.) Gerald Ford, who Nixon had appointed to replace Spiro Agnew (after Agnew’s own resignation in the face of tax evasion and bribery charges), pardoned Nixon a month after taking office – leading to claims of a new corrupt bargain. Prosecutors treated the pardon as conclusive. They didn’t have to.
  • The election of 1984 was a landslide victory for Ronald Reagan. But during his second term, senior members of the administration sold arms to Iran and used the proceeds to fund the Nicaraguan Contras; both halves of the scheme were illegal. Reagan’s own involvement was a major question in the ensuing investigations, which continued into the presidency of Reagan’s vice-president, George H.W. Bush – and Bush’s own diaries were sought as evidence. Bush brought the investigations to a close in 1992 by issuing presidential pardons. As with Ford’s pardon of Nixon, this was the end of things. It didn’t have to be – and Reagan and Bush didn’t have to let it run that long.
  • The election of 1992 was a walk-off victory for Bill Clinton. But in 1994, Robert Fiske was appointed as a special prosecutor to investigate the death of Deputy White House Counsel Vince Foster and whether Clinton’s administration had interfered with an investigation into the failure of a bank connected to Clinton’s earlier Whitewater real estate investments. Fiske’s interim report found no wrongdoing, but the D.C. Circuit replaced him with Kenneth Starr as independent counsel. The Starr investigation expanded to cover other matters, and concluded that Clinton lied under oath about his affair with Monica Lewinsky. Clinton was impeached by the House on charges of perjury and obstruction of justice, but acquitted by the Senate. As with the Burr treason trial and the Johnson impeachment, both sides allowed the process to play out and lived with the outcome. They didn’t have to.
  • The election of 2000 was decided by the Supreme Court. Al Gore won a plurality of the popular vote, but George W. Bush at first appeared to have won a majority of electoral votes. Gore called Bush to congratulate him on election night – and then called back to retract his concession when it appeared that Florida, which held the decisive electoral votes, was becoming too close to call again. Bush’s narrow margin of victory in Florida triggered a recount of the tabulation, followed by litigation over whether and how to conduct a full manual recount. The Florida Supreme Court ordered a recount by a vote of 4-3; the Supreme Court then halted the recount by a vote of 5-4, leaving Bush with a margin of 537 votes in Florida and with it the election. Gore left it there. He didn’t have to.

It is mostly true that the United States has had peaceful transitions of national power throughout its history. But there was nothing inevitable about it. We don’t have peaceful transitions just because the Constitution provides rules for elections: there have been plenty of times those rules failed or ran out. Instead, we have peaceful transitions because the losers – or those who didn’t even run but think they have something at stake – have chosen to accept the outcome and move on. I have emphasized the elections in which something genuinely new happened, but the same is true even in the seemingly uncontroversial elections, like 1816 and 1936.

Every American experiment sets a precedent, but to quote E. Donald Elliott:

No decision, not even a unanimous decision of the Supreme Court, is a precedent on the day it is decided. It becomes a precedent if it is recognized and accepted as authoritative to resolve other controversies.

The perceived legitimacy of elections matters in preserving the republic. It creates the conditions under which the losers in elections stand down because they know that if they fight on they fight alone. The last time that principle failed was the Civil War, which lasted four and a half years and killed at least 750,000 people. But neither the Confederacy nor the Union had automatic rifles, tanks, jet fighters, and nuclear weapons.