It was 190 years ago this week that a constitutional crisis was averted when the relatively new 12th Amendment to the Constitution settled the last presidential election decided in the House of Representatives.
On February 9, 1825, the House met to elect a new President after one candidate failed to win a majority of the electoral college vote. The House also met 24 years before to also settle a presidential election, but this time, the process was much smoother thanks to the 12th Amendment.
After the Constitution was ratified in 1791 it had only been changed, or amended, twice. The 11th Amendment, ratified in 1795, cleared up a matter about lawsuits against states and sovereign immunity. The 12th Amendment, ratified in 1804, cleared up a mess created by the Founders in the matter of how presidential elections were held in the Electoral College.
The Constitution’s original provision for electing a president and vice president didn’t survive the bitter 1800 election between Thomas Jefferson and John Adams.
The original Article II, Section 1, of the Constitution required electors in states to cast two ballots. There wasn’t a separate vote for vice president, and it was up to the political parties to coordinate among their electors to make sure their vice presidential candidates had at least one fewer electoral vote than presidential candidates.
Sure enough, there was a “communication breakdown” within Jefferson’s party, when someone forgot to not vote for Jefferson’s running mate, Aaron Burr. After the electoral votes were counted, Jefferson and Burr each had 73 votes, and tied as the winner. Worse yet, Article II sent the tie election to the House, which was controlled by Adams’ Federalist Party.
The House members could only vote for Jefferson or Burr, and not Adams, and then Burr made the controversial move to try to take the election from his own running mate, Jefferson.
The contingent runoff election between Jefferson and Burr was a true constitutional crisis. Jefferson ultimately won the House election on the 36th ballot after a week of voting. Alexander Hamilton, Jefferson’s long-time enemy, supported Jefferson instead of his old rival from New York, Burr.
Another factor that concerned Congress after the 1800 election was the outcome of the 1796 election, when members of opposing parties (Adams and Jefferson) were elected president and vice president.
So the 12th Amendment quickly followed. It was written, approved in Congress and ratified within three years, so that it was in effect for the 1804 election. (The next amendment to the Constitution wouldn’t be ratified until December 1865.)
The 12th Amendment made sure separate ballots were cast in the Electoral College for president and vice president; the House would settle an election without a majority winner with a contingent election featuring the top three vote getters; and the House would determine rules for conducting the election.
Twenty years later, Congress found itself in position to settle another presidential election that involved an Adams.
In this case, it was John Quincy Adams, who was one of four candidates who received electoral votes in a bitterly contested 1824 election much like the 1800 race involving his father.
During the eight years prior to the 1824 race, political partisanship was at an all-time low. In the “Era Of Good Feelings,” President James Monroe ran basically unopposed for re-election in 1820.
But the unity inside the Democratic-Republicans, the one remaining political party in the United States, crumbled as the issues of slavery, states’ rights, regionalism, and the economy drove wedges between former comrades.
Two of the candidates had been in Monroe’s nonpartisan cabinet: Secretary of State Adams and Treasury Secretary William Crawford. Andrew Jackson was the hero of the War of 1812, while Henry Clay of Kentucky was the powerful speaker of the House of Representatives.
In the general election, Jackson led on December 2, 1824 with 99 electoral votes, but he needed 131 to win the presidency. Clay came in fourth with 37 electoral votes, which was enough to cost Jackson the election.
Under the provisions of the 12th Amendment, the election in the House involved the top three votegetters: Jackson, Adams, and Crawford (who also had suffered a stroke during the election campaign).
A lame-duck Congress was left with the task of selecting a new president over the next two months. (A vice presidential candidate, John C. Calhoun, has easily won a majority of ballots.)
It was Clay, like Hamilton in 1800, who interceded to decide the House election, in favor of the New Englander, Adams. Clay secured enough votes for Adams to win on the first House ballot on February 9, 1825, despite Jackson’s wide lead in the popular vote.
The 12th Amendment worked. It allowed the House to adopt rules about conducting the vote that became a precedent, and a winner was selected on the first ballot. Each state had one vote in the process.
But what happened next had a longer-term effect on the American political system.
Adams appointed Clay as Secretary of State, which was the second-highest position in 1824 politics, and the usual job held by the favorite to become the next president.
The anger of Jackson and his supporters about the “corrupt bargain” led to the official formation of the Democratic Party, with Jackson as its leader. Jackson won the 1828 presidential election and the two-party system that dominates current American politics was born.
After Jackson’s re-election in 1832, the remaining political factions united to form the Whig Party, to oppose the Democrats.
In an interesting footnote to history, the 1824 election wasn’t the only contest settled by the 12th Amendment. In 1837, Martin Van Buren won the election to replace Jackson as president, but there was dissent within the Democratic Party about the vice presidential candidate, Richard Mentor Johnson. During the Electoral College voting, 23 faithless electors refused to vote for Johnson.
According to the 12th Amendment, a contested vice presidential election is decided by the Senate. In February 1837, the Senate chose Johnson over a Whig rival, in a runoff election.
Scott Bomboy is the editor in chief of the National Constitution Center.
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As part of the National Constitution Center’s 27 Amendments (In 27 Days) project, each day we will look at a constitutional amendment. Through partnerships with leading scholars and universities, government agencies, media outlets, and more, the National Constitution Center will profile one amendment each day throughout the month of February.