The constitutional crisis behind 2021’s presidential transition

The fraught transition of power from Donald Trump to Joe Biden has its roots in a decision, taken 230 years ago, to make the president an “elected king”, argues Adam IP Smith. In a piece written prior to the riot at the Capitol Building in Washington, DC, earlier this month, he explores the root of the turmoil surrounding Biden's inauguration

Supporters of Donald Trump protest in Pennsylvania as the state’s electoral college casts its votes, December 2020

This article was written prior to the riot at the Capitol Building in Washington, DC, in January 2021

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On 4 March 1801, in the city of Washington – then just a half-built, muddy encampment on the banks of the Potomac – a living head of state gave up power peacefully and a new one took over. The outgoing president, John Adams, had lost a bitter election – the first presidential contest in the short history of the United States in which a sitting president had been defeated – and he was not a happy man. Once, Adams had regarded the incoming head of state, Thomas Jefferson, as a friend. But the election had pushed the bond between the two founding fathers to breaking point.

Jefferson’s supporters, with the complicity of the candidate himself, charged that Adams was a quasi-monarchist. If he won a second term, with his centralising, authoritarian instincts, it would be tantamount to a repudiation of the Revolution, which had seen the 13 colonies of the United States win their independence from Britain following an eight-year war (1775–83). Adams’ supporters, in turn, claimed that if the deist Jefferson won, God himself would be dethroned and (according to one Connecticut newspaper) “murder, robbery, rape, adultery and incest will openly be taught and practised”.

The stakes, in other words, could barely have been higher. Both sides believed that the fate of the nascent American republic was on the line. Jefferson called his election “the Revolution of 1800”.

And yet, when it became clear by the end of December 1800 that Adams would not have the Electoral College votes to be re-elected, and even though his defeat seemed to him to be a terrifying sign of the degeneration of the republic, he did not contemplate resisting the result. Before dawn on the morning of the inauguration of his nemesis, Adams left town. He couldn’t bear to be present at the moment when his power was transferred, but at least he didn’t fight it.

The presidential transition of 1801 was the height of civilisation compared to the English throne-toppling that took place from 1327 to 1485

The Washington-based political commentator Margaret Bayard Smith wrote that she had “this morning witnessed one of the most interesting scenes a free people can ever witness. The changes of administration, which in every government and in every age have most generally been epochs of confusion, villainy and bloodshed, in this our happy country take place without any species of distraction, or disorder.” This was an exaggerated but understandable boast.

In a monarchy, the transfer of power from one head of state to the next frequently happens without disorder because it takes place, quite literally, in a heartbeat. The declamation “The king is dead, long live the king!” provides the reassurance of seamless continuity. But it is of course true that the history of the classical world, of the Italian republics, and of England – the principal reference points for elite white Americans at the dawn of the 19th century – were hardly short of instances of bloody chaos attending the transfer of authority from one head of state to the next. The presidential transition of 1801 was the height of civilisation compared to the twisted and oft-told tale of English throne-toppling that took place over the century and a half from Edward II’s ignominious removal in 1327 to Richard III’s death at the battle of Bosworth in 1485.

The creators of the Federal Constitution under which, in its essential form, the United States has so far been governed for 232 years, made a conscious decision to create a strong executive presidency with a quasi-monarchical form. They did not have to do this – most radicals preferred the idea of a unicameral legislature (with just one chamber) and a weak executive, the better to represent the unfiltered interests of the people. But for the likes of John Adams, a “balanced” constitution in which the democratic element was constrained by a strong judicial and executive branch was more likely to provide stability.

In Adams’ view, history showed that an excess of democracy led to dictatorship. As he wrote (in a book published before he became president), “where the people have a voice, and there is no balance, there will be everlasting fluctuations, revolutions and horrors, until a standing army, with a general at its head, commands the peace, or the necessity of an equilibrium is made appear to all, and is adopted by all.”

Deliberately undemocratic

But the idea that a strong president would provide ballast to the ship of state against the inconstant gusts of public opinion was only true so long as the presidency did not itself become the object of contention.

Insulating the presidency from the hoi polloi was the job of the Electoral College – the indirect and deliberately undemocratic system of deciding upon the republic’s head of state, in which the president is elected not by the voters themselves but by a group of electors selected by the American public.

The 1800 election was indeed hardly democratic (the franchise was restricted, and many states did not choose presidential electors through popular votes anyway). But the true source of the crisis that year was that the election was intensely, vitriolically, partisan. Precisely because
the presidency was so powerful an office, controlling it seemed more important than controlling Congress (the bicameral legislature that consists of the House of Representatives and the Senate). Adams’ faith in a strong executive had come back to bite him.

So, although Margaret Bayard Smith was right to see the peaceful transfer of power in 1801 as a sign of the republic’s strength, the issue had only arisen because the constitution made the president into a sort of elected king, complete with pardon power and the capacity as commander-in-chief to raise an army. For the following 220 years, the period of transition from one head of state to the next has been fraught with the self-created potential for drama.

Some of that drama comes not from the fact of transferring power from one man to another (for it has always, of course, been a man, no doubt partly due to the machismo built into the powerful executive stereotype) but in the long transition period when the loser knows he’s lost but remains in power. This is not an interregnum – that most dread of circumstances in a monarchy – but something potentially even more dangerous, since the outgoing head of state retains all the power but without the restraint of having to face an electorate ever again.

The delay between the election and the inauguration of the new president was sensible in the 18th century, given how long it took to ride a horse along muddy roads from New York or Boston down to Washington. The delay also reflected what the founders imagined to be the drawn-out process of selecting electors. But whatever its justification, the long political transition relies on implausible self-restraint on the part of the outgoing president.

In 1801, John Adams used the transition period to rush through a series of judicial appointments intended to constrain the incoming administration. In 1861, James Buchanan prevaricated while seven slaveholding states decided that the election of Abraham Lincoln in November 1860 was so provoking that they would unilaterally declare their independence from the United States.

For the first time in the republic’s history, an outgoing head of state has refused to acknowledge the legitimacy of his electoral defeat

In 1933, in the midst of the Great Depression, the inability of the outgoing president, Herbert Hoover, to deal effectively with the economic crisis for four long months prompted Congress to initiate a constitutional amendment moving the inauguration date forward by six weeks. But they didn’t consider shortening it any further, no doubt in part because the sheer size of the federal government by the 20th century meant that incoming presidents had thousands of appointments to make, many of which required FBI checks and Congressional approval.

Indeed, the 9/11 Commission concluded that the shortened period of transition between Bill Clinton and George W Bush (truncated because of the length of time it took to resolve the disputed election of 2000) contributed to the new administration’s lack of preparedness for a terrorist attack by Al-Qaeda.

In 2020–21, for the very first time in the history of the republic, an outgoing head of state (Donald Trump) has refused to acknowledge the legitimacy of his electoral defeat (to Joe Biden). Even in 1860, the slaveholding states who left the Union did not dispute the legitimacy of Abraham Lincoln’s election – they just thought that it was a hostile act by the northerners who had voted for him.

Now, for the first time, the United States has had a monarch, albeit an elected one, telling his supporters that his immense power has been taken from him by a usurper. Neither John Adams nor Margaret Bayard Smith would have been shocked that it had come to this, but they would certainly both have regarded it as the sign that the republican experiment had failed.

Adam IP Smith is the Edward Orsborn professor of United States politics and political history and the director of the Rothermere American Institute at the University of Oxford

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This content first appeared in the February 2021 issue of BBC History Magazine