In the Honored Career of a Founder, a Lesson for Today's GOP Governors

Rick Snyder, Scott Walker, John Kasich -- would you rather be remembered like John Jay or like Reince Priebus?

johnjay615.jpgPortrait of John Jay by Gilbert Stuart, 1794 (The National Gallery of Art)

Everyone in American politics wants to follow the example of the Founding Generation. Virginia Governor Bob McDonnell seems to have done so over the weekend. The lesson came from John Jay, one of the co-authors of The Federalist. Here's hoping McDonnell introduces Jay to fellow Republican Governors Tom Corbett of Pennsylvania, Scott Walker of Wisconsin, Rick Snyder of Michigan, and John Kasich of Ohio. 

Jay, then serving as Governor of New York, protected his own reputation by blocking a Federalist Party plan to rig the Electoral College in 1800. In so doing, he left a lesson for today's Republicans, which might be called "How Not to Panic as Your Party Seems to Be Collapsing."

In 1800, the Federalist Party -- which had governed the new nation since the Constitution took effect in 1789 -- found itself facing many of the same forces that seem to be undoing Republicans today: demographic changes, regional migration, immigration, and the memory of a failed administration. The Jeffersonian Republicans had the wind at their back, led by the terrifying Thomas Jefferson (whom Alexander Hamilton called "an atheist in religion and a fanatic in politics").

Jay enters the story when Hamilton had a nifty idea to hold onto power. On May 7, 1800, Hamilton wrote Governor Jay to warn that Federalists had lost control of the state legislature in the recent election. This disaster, he said, "will bring Jefferson into the Chief Magistracy, unless it be prevented by . . . the immediate calling together of the existing legislature." The old legislators, before they left office, could change New York's electoral-vote system. Instead of selection of a single statewide slate by the legislature, they could award electoral votes by the popular vote by Congressional district. "I am aware that there are weighty objections to the measure," Hamilton admitted; but "in times like these in which we live, it will not do to be overscrupulous." 

Jay, a better politician than Hamilton ever was, never committed an answer to paper. But on the back of the letter, he wrote, "Proposing a measure for party purposes which it would not become me to adopt." 

On Friday, Bob McDonnell seemed to doom a plan by Virginia legislators to use the old Hamilton scam -- awarding electoral votes by district -- in future elections in Virginia. The Governor, a spokesman declared, "believes Virginia's existing system works just fine as it is. He does not believe there is any need for a change."

Jay and McDonnell's words should warn other GOP governors of blue states, who are being urged to try to swing the next presidential election by congressional-district electoral-vote plans. Republican Chairman Reince Priebus, looking at the electoral map, is in a distinctly Hamiltonian mood. The congressional-district switcheroo, he said recently, is "something that a lot of states that have been consistently blue that are fully controlled red ought to be looking at." 

As Nate Silver points out in Sunday's New York Times, the congressional-district plan, if implemented in 2012 by Florida, Michigan, Ohio, Pennsylvania, Virginia, and Wisconsin -- all of which meet Priebus's "blue-but-red-controlled" criterion -- would have made Mitt Romney President, even if Obama still obtained, as he did, an absolute majority of the popular vote. 

McDonnell's decision may put the brakes on a congressional-district-vote stampede. But there is still enthusiasm in some GOP circles for this sort of trick. One can see why: It's a lot easier than confronting the long-term political trends that seem to be hustling the Republican Party into the Great Caucus Room above where the Federalists and the Whigs still hold their spectral meetings.  

But it has a number of problems. It is dishonorable. It would weaken our nation's commitment to principled application of the Constitution. It would produce a political backlash. And worst of all, considering this is politics, it probably wouldn't work. 

Hamilton's scheme -- "the most high-handed and undemocratic act of his career," according to biographer Ron Chernow -- is a permanent blot on the record of a distinguished Founder. Republican governors like McDonnell may be asking themselves whether history will judge them as more like Jay or more like Reince Priebus.  

The Republican Party may very well right itself without tricks or thuggery. Or it may disappear. That happened to the Federalists, who never won another national election. Hamilton, ever the hothead, followed his party into darkness; he provoked a fatal duel with Aaron Burr in 1804.   

Jay, on the other hand, retired to Westchester County, lived another three decades, and died, honored by all, at the age of 83. He is remembered as the man who signed the treaties that guaranteed American independence. He refused to pervert his constitutional power for "party purposes." 

Today's Republicans might profit by his example. 

Presented by

Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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