Max Fisher in the N.Y. Times discusses scholarship on how political elites handle constitutional crises over election outcomes in democracies. This research shows that presidential systems are more vulnerable to elite subversion of the electorate’s will than parliamentary systems, a conclusion consistent with what I found when writing Ballot Battles.
This point relates to one detail about Judge Luttig’s testimony to the January 6 Committee that needs correction. While I agree with much of what Judge Luttig said, including his warning about the “clear and present danger” for 2024, it is not accurate to say that if Pence had done what Trump had wanted, it would have been “the first constitutional crisis since the founding of the republic.” The Civil War obviously qualifies as a constitutional crisis, and it was triggered at least in part by the South’s refusal to abide by the result of the 1860 presidential election. The circumstances of course were different. It wasn’t election denialism in the same McCarthyism-like fabrication of lies about the reality of the situation; instead, it was a refusal to accept the legitimacy of Lincoln’s undisputed Electoral College victory. But it was still a constitutional crisis provoked by rejecting the outcome of a presidential election.
Arguably even more relevant, the presidential elections of both 1800 and 1876 provoked undeniable constitutional crises, involving serious threats of civil war that thankfully did not materialize but came uncomfortably close. Chief Justice Rehnquist titled his own book about the 1876 election Centennial Crisis, and in Chapter 5 of Ballot Battles I’ve written about President Grant’s preparation for martial law given the real threat of two simultaneous inauguration ceremonies–for both Hayes and Tilden–with generals in the U.S. Army starting to signal which purported Commander-in-Chief they would obey. As I also wrote there, some historians assess that another civil war was averted over the outcome of the 1876 election only because so much bloodshed had been spilled a decade earlier, and the country simply could not put itself through second conflict of the same nature so soon after the first.
Perhaps less well known is the real risk of military conflict that existed during the dispute over the outcome of the 1800 presidential election. But as Vox recounted a few years ago, invoking the prominent historian Gordon Wood on this point:
A violent crisis seemed quite possible. “Republican newspapers talked of military intervention,” Gordon Wood writes in Empire of Liberty. “The governors of Virginia and Pennsylvania began preparing their state militias for action. Mobs gathered in the capital and threatened to prevent any president from being appointed by statute.”
Historian Susan Dunn’s book on the 1800 election also includes the term “crisis” in its title, and other books on the episode label it a “catastrophe” or “tumultuous” or even “revolutionary.” In my judgment, the single best book on the 1800 election is James Roger Sharp’s The Deadlocked Election of 1800: Jefferson, Burr, and the Union in the Balance (2010). Here’s how its introduction characterizes the crisis that the Jefferson-Burr Electoral College tie precipitated:
From December 1800 to late February 1801, the Union teetered at the verge of collapse as a result of political tensions fueled by sectional jealousies as well as almost paranoid fears of foreign influence and domestic sedition. Federalists and Republicans were willing to believe that their opponents were capable of virtually any action, no matter how treacherous or violent, in order to gain or retain power. Talk was also rife about state militias arming and a possible breakup of the Union and civil war. …”
Recognizing how much of a crisis both 1800 and 1876 actually were ought to redouble the concern about Judge Luttig’s warning for 2024. The fight over the outcome of the next presidential election could be far uglier than even what we saw in 2020, and instead could resemble 1800 or 1876–or potentially even worse. Indeed, I worry that 2020 may be a prelude for 1876 in the same way that 1872 was a prelude for 1876. For that, it’s worth re-reading Chapter 4 of Ballot Battles in relationship to Chapter 5.