These Truths

by Jill Lepore

  During Adams’s stormy administration, the distance between the two parties widened. Weakened by the weight of his own pride and not content with issuing warnings about the danger of parties, Adams attempted to outlaw the opposition. In 1798, while the United States was engaged in an undeclared war with France, Congress passed the Alien and Sedition Acts, granting to the president the power to imprison noncitizens he deemed dangerous and to punish printers who opposed his administration: twenty-five people were arrested for sedition, fifteen indicted, and ten convicted; that ten included seven Republican printers who supported Jefferson.13 Jefferson and Madison believed that the Alien and Sedition laws violated the Constitution. If a president overreaches his authority, if Congress passes unconstitutional laws, what can states do? The Constitution does not grant the Supreme Court the authority to decide on the constitutionality of laws passed by Congress; that’s a power that the court decided to exercise on its own, but, in 1798, it hadn’t tried yet. Meanwhile, Jefferson and Madison and other Republicans came up with another form of judicial review: they argued that the states could decide on the constitutionality of federal laws. They wrote resolutions objecting to the Alien and Sedition Acts. Madison wrote a resolution for Virginia; Jefferson wrote one for Kentucky. “Unless arrested on the threshold,” Jefferson warned, the Alien and Sedition laws would drive the states “into revolution and blood, and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron.”14

  The widening divide between the parties also marked a hardening of views on slavery. During the Haitian revolution, Jefferson, favoring France, wanted, at most, a remote relationship with an island of freed slaves. But the Adams administration, favoring England, wanted to renew trade with the Caribbean island and even to recognize its independence. “Nothing is more clear than, if left to themselves, that the Blacks of St Domingo will be incomparably less dangerous than if they remain the subjects of France,” Timothy Pickering, Adams’s secretary of state, wrote in 1799. Meanwhile, Africans in America found inspiration in news of events in Haiti. In the summer of 1800, a blacksmith named Gabriel, who became known as “the American Toussaint,” led a slave rebellion in Virginia, marching under the slogan “Death or Liberty.” The rebellion failed. Gabriel and twenty-six of his followers were tried and executed. Opponents of slavery predicted that Gabriel’s rebellion would not be the last. “Tho Gabriel dies, a host remains,” warned Timothy Dwight, the president of Yale. “Oppresse’d with slavery’s galling chain.”15

  Jefferson believed that the election of 1800 would “fix our national character” and “determine whether republicanism or aristocracy would prevail.” It did, in any event, establish a number of conventions of American politics, including the party caucus and a no-holds-barred style of political campaigning. Early in the year, Federalists and Republicans in Congress, keen to avoid a repetition of the confusion of 1796, held a meeting to decide on their party’s presidential nominee. They called this meeting a “caucus.” (The word is an Americanism; it comes from an Algonquian word for “adviser.”) The Republicans settled on Jefferson, the Federalists on Adams, although Alexander Hamilton tried to convince Federalists to abandon Adams and instead throw their support behind his running mate, Charles Cotesworth Pinckney of South Carolina. “Great and intrinsic defects in his character unfit him for the office of chief magistrate,” Hamilton wrote of Adams, citing “the unfortunate foibles of a vanity without bounds, and a jealousy capable of discoloring every object.”16 Adams held on to the nomination only by the grip of his talons.

  An election of 1800 campaign banner for Thomas Jefferson promised “John Adams No More.” The candidates themselves did not campaign; Americans deemed a candidate’s addressing the people directly a form of demagoguery. When Adams made a detour while traveling from Massachusetts to Washington, a Republican newspaper editor demanded, “Why must the President go fifty miles out of his way to make a trip to Washington?” But the lack of participation of the candidates themselves by no means quieted the campaigning, which chiefly took place in the nation’s newspapers. Voters argued in taverns and fields, and even by the side of the road, having the kind of conversations that the Carolina Gazette attempted to capture by printing “A DIALOGUE Between a FEDERALIST and a REPUBLICAN”:

  REPUBLICAN. Good morrow, Mr. Federalist; ’tis pleasant weather; what is the news of the day? How are elections going, and who is likely to be our president?

  FEDERALIST. For my part I would rather vote for any other man in the country, than Mr. Jefferson.

  REPUBLICAN. And why this prejudice against Mr. Jefferson, I pray you?

  FEDERALIST. I do not like the man, nor his principles, from what I have heard of him. First, because he holds not implicit faith in the Christian Religion; 2dly, because I fear he is too great an advocate for French principles and politics; and lastly, because I understand he is violently prejudiced against every thing that is of British connection.

  They argue on. “What have you or anyone to do with Mr. J.’s religious principles?” the Republican asks, after which their debate nearly ends in fisticuffs.17

  Republicans attacked Adams for abuses of office. Federalists attacked Jefferson for his slaveholding—Americans will not “learn the principles of liberty from the slave-holders of Virginia,” cried one—and especially for his views on religion. In Notes on the State of Virginia, Jefferson had stated his commitment to religious toleration. “It does me no injury for my neighbor to say there are twenty gods or no god,” he’d written. “It neither picks my pocket nor breaks my leg.” From their pulpits, Federalist clergymen preached that such an opinion could lead to nothing but unchecked vice, crime, and depravity. One New York minister answered Jefferson: “Let my neighbor once perceive himself that there is no God, and he will soon pick my pocket and break not only my leg but my neck.” And a Federalist newspaper, Gazette of the United States, insisted that the election offered Americans a choice between “GOD—AND A RELIGIOUS PRESIDENT” and “JEFFERSON—AND NO GOD!!!!”18

  Republicans answered Federalist hyperbole with still more hyperbole. In 1799, Federalists had unsuccessfully pursued the Philadelphia printer William Duane for sedition. In 1800, Duane printed in his newspaper, the Aurora, a pair of lists, contrasting the two candidates. With a second term under Adams, the nation would endure more of “Things As They Are”:

  The principles and patriots of the Revolution condemned.

  The Nation in arms without a foe, and divided without a cause.

  The reign of terror created by false alarms, to promote domestic feud and foreign war.

  A Sedition Law.

  An established church, a religious test, and an order of Priesthood.

  But if Jefferson were elected, the nation could look forward to “Things As They Will Be”:

  The Principles of the Revolution restored.

  The Nation at peace with the world and united in itself.

  Republicanism allaying the fever of domestic feuds, and subduing the opposition by the force of reason and rectitude.

  The Liberty of the Press.

  Religious liberty, the rights of conscience, no priesthood, truth, and Jefferson.19

  “Take your choice,” James Callender, a Scottish satirist, wrote in a pamphlet called The Prospect before Us, “between Adams, war and beggary, and Jefferson, peace and competency.” Aristocracy or republicanism, order or disorder, virtue or vice, terror or reason, Adams or Jefferson. “Such papers cannot fail to have the best effect,” Jefferson wrote privately of Callender’s pamphlet. For The Prospect before Us, Callender was convicted of sedition. Sentenced to six months’ confinement, he wrote a second volume from jail. Thumbing his nose at his prosecutors, he titled one chapter “More Sedition.”20

  The campaigning went on for rather a long time, partly because there was no single national election day in 1800. Instead, voting stretched from March to November. Voting wa
s done in public, not in secret. It also hardly ever involved paper and pen, and counting the votes—another affair of calculation—usually meant counting heads or, rather, counting polls. A “poll” meant the top of a person’s head. (In Hamlet, Ophelia says, of Polonius, “His beard as white as snow: All flaxen was his poll.” Not until well into the nineteenth century did a “poll” come to mean the counting of votes.) Counting polls required assembling—all in favor of the Federalist stand here, all in favor of the Republican over there—and in places where voting was done by ballot, casting a ballot generally meant tossing a ball into a box. The word “ballot” comes from the Italian ballota, meaning a little ball—and early Americans who used ballots cast pea or pebbles, or, not uncommonly, bullets. In 1799, Maryland passed a law requiring voting on paper, but most states were quite slow to adopt this reform, which, in any event, was not meant to make voting secret, voting publicly being understood as an act of republican citizenship.21

  The revolution of 1800, as Jefferson saw it, was accomplished “by the rational and peaceable instrument of reform, the suffrage of the people”—a revolution in voting.22 Nevertheless, out of a total U.S. population of 5.23 million, only about 600,000 people were eligible to vote. Only in Maryland could black men born free vote (until 1802, when the state’s constitution was amended to exclude them); only in New Jersey could white women vote (until 1807, when the state legislature closed this loophole). Of the sixteen states in the Union, all but three—Kentucky, Vermont, and Delaware—limited suffrage to property holders or taxpayers, who made up 60–70 percent of the adult white male population. Only in Kentucky, Maryland, North Carolina, Rhode Island, and Virginia did voters choose their state’s delegates to the Electoral College. In no state did voters cast ballots for presidential candidates: instead, they voted for legislators, or they voted for delegates. Which of these methods each state followed was part of what the election was about in the first place, since one method was more aristocratic, and the other more republican—that’s what Jefferson meant by calling the election a revolution.23

  Before the election was over, seven out of the sixteen states in the Union changed or modified their procedures for electing delegates to the Electoral College. This began in the spring of 1800, after Republicans made a strong showing in local elections in New England, and the Federalist-dominated legislatures of Massachusetts and New Hampshire repealed the popular vote and put the selection of Electoral College delegates into their own hands. Some efforts to manipulate the voting were thwarted. When, in an election engineered by Jefferson’s running mate, Aaron Burr, New Yorkers elected a Republican legislature, Hamilton tried to convince the state’s governor, John Jay, to convene the lame-duck Federalist legislature to change the rules, throwing the election of delegates to the people so that the new legislature would not be able to choose Jeffersonian electoral delegates. Hamilton couldn’t stand Adams, but he considered Jefferson a “contemptible hypocrite.”24 What he proposed was patently unethical. But if the result would be “to prevent an atheist in Religion, and a fanatic in politics from getting possession of the helm of State,” Hamilton told Jay, “it will not do to be overscrupulous.” Jay refused.25

  When the Electoral College met in December 1800, one error of its design became immediately clear: Adams lost, but the winner remained uncertain. Republican electors were supposed to vote for Jefferson and Burr. For Jefferson to become president, at least one Republican elector had to remember to not vote for Burr, so that Jefferson would win and Burr place second. That someone forgot. Instead, Jefferson and Burr both received seventy-three votes in the Electoral College to Adams’s sixty-five and Pinckney’s sixty-four, the Federalists having remembered to give their presidential candidate one more vote than his running mate. (This problem was fixed in 1804, with the Twelfth Amendment, which separated the election of the president and the vice president.) The Jefferson-Burr tie was thrown to the House, dominated by lame-duck Federalists. Jefferson’s party had just won sixty-seven House seats, compared to the Federalists’ thirty-nine, but these new congressmen had not yet taken office.26 Between Jefferson and Burr, Congress eventually decided in favor of the Virginian. Meanwhile, from New England, Federalist Timothy Pickering dubbed Jefferson a “Negro President” because twelve of his electoral votes were a product of the three-fifths clause. Without these “Negro electors,” as northerners called them, he would have lost to Adams, sixty-five to sixty-one. “The election of Mr. Jefferson to the presidency,” John Quincy Adams remarked, represented “the triumph of the South over the North—of the slave representation over the purely free.”27

  ON FEBRUARY 17, 1801, Jefferson was at last elected president. “I shall leave in the stables of the United States seven Horses and two Carriages with Harness,” Adams wrote him. “These may not be suitable for you: but they will certainly save you a considerable Expense.”28 Jefferson was inaugurated on March 4, 1801, one day after the Sedition Act expired. He was the first president to be inaugurated in the new capital city of Washington. Spurning pomp, and refusing to ride on any of John Adams’s seven horses or in either of his two carriages, he walked through the city’s muddy streets, a man of the people. Bostonians insisted that he did not, in fact, walk but instead rode “into the temple of Liberty on the shoulders of slaves.”29

  Jefferson’s inauguration marked the first peaceful transfer of power between political opponents in the new nation, a remarkable turning point. The two-party system turned out to be essential to the strength of the Republic. A stable party system organizes dissent. It turns discontent into a public good. And it insures the peaceful transfer of power, in which the losing party willingly, and without hesitation, surrenders its power to the winning party.

  Jefferson delivered his inaugural address to Congress, assembled in the unfinished Capitol, but he addressed it to the American people: “Friends and Fellow Citizens.” It is one of the best inaugurals ever written. He spoke about “the contest of opinion,” a contest waged in the pages of the nation’s unruly newspapers. He tried to wave aside the bitter partisanship of the election and to defeat the spirit of intolerance manifest in the Sedition Act. “Every difference of opinion is not a difference of principle,” he said. “We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” Three weeks later, Jefferson wrote to Sam Adams: “The storm is over, and we are in port.”30

  The storm was not over. One of the last and most important decisions John Adams made before leaving the presidency was to appoint to the office of chief justice the Virginian John Marshall, who was Jefferson’s cousin and also one of his fiercest political rivals. Federalists had lost power in the other two branches of government, but they seized it in the judicial branch and held it, a check against the suffrage of the people, a form of power more easily subject to abuse than any other.

  A corrupt or too powerful judiciary had been one of the abuses that led to the Revolution. In 1768, Benjamin Franklin had listed judicial appointment as one of the “causes of American discontents,” and, in the Declaration of Independence, Jefferson included the king’s having “made Judges dependent on his Will alone” on his list of grievances.31 “The judicial power ought to be distinct from both the legislative and executive, and independent,” John Adams had argued in 1776, “so that it may be a check upon both.”32 But a tension exists between judicial independence and the separation of powers. Appointing judges to serve for life would seem to establish judicial independence, but what power would then check the judiciary? Another solution was to have judges elected by the people—the people would then check the judiciary—but the popular election of judges would seem to make the courts subject to all manner of political caprice. At the constitutional convention, no one had argued t
hat the Supreme Court justices ought to be popularly elected, not because the delegates were unconcerned about judicial independence but because there wasn’t a great deal of support for the popular election of anyone, including the president. And, although there was, for a time, some disagreement over whether the president or the Senate ought actually to do the appointing, the proposal that the president ought to appoint justices, and the Senate confirm them, and that these justices ought to hold their appointments “during good behavior,” was established swiftly, and without much dissent.33

  Nevertheless, this arrangement had proved controversial during the debate over ratification. In an essay called “The Supreme Court: They Will Mould the Government into Almost Any Shape They Please,” one Anti-Federalist had pointed out that the power granted to the court was “unprecedented in a free country,” because its justices are, finally, answerable to no one: “No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.”34

  This is among the reasons Hamilton had found it expedient, in Federalist 78, to emphasize the weakness of the judicial branch.35 When it began, the Supreme Court, without even a building to call its own, really was nearly as weak as Hamilton pretended it would be. It served, at first, as an appellate court and a trial court and, under the terms of the 1789 Judiciary Act, a circuit court. People thought it was a good idea for the justices to ride circuit, so that they’d know the citizenry better. The justices quite disliked riding circuit and, in 1792, petitioned the president to relieve them of the duty, writing, “we cannot reconcile ourselves to the idea of existing in exile from our families.” Washington, who had no children of his own, was unmoved.36 At one point, the chief justice, John Jay, wrote to Washington to let him know that he was going to skip the next session because his wife was having a baby (“I cannot prevail upon myself to be then at a Distance from her,” Jay wrote), and because there wasn’t much on the docket, anyway. In 1795, Jay resigned his appointment as chief justice to become governor of New York, closer to home. Washington then asked Hamilton to take his place; Hamilton said no, as did Patrick Henry. When the Senate rejected Washington’s next nominee for Jay’s replacement, the South Carolinian John Rutledge, Rutledge tried to drown himself near Charleston, crying out to his rescuers, “He had long been a Judge & he knew no Law that forbid a man to take away his own life.”37 The court, in short, was troubled.