June 3, 2011 – Amendment XII of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XII

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The election of 1800 was a critical moment in the evolution of American republicanism, even more momentous than the decision of George Washington four years earlier not to seek election to a third term, an election he surely would have had won. Washington’s decision set the stage for the informal term restriction on Presidents that lasted a century and a half. It had to be formalized in the 22nd Amendment after Franklin Roosevelt became, in the phrasing of political opponents, a “Third Termite” and more. Washington’s move, all personal reasons aside, made the point that republics are endangered by long-serving executives. Such longevity, combined with the inherent powers of the office, promotes concentration of power, with a likely cult of personality and attendant corruption.

No less a threat to republics is the failure of the dominant political coalition to yield power when it loses at the polls. That is particularly true when the republic is young and its political institutions not yet fully formed and tested. The history of the world is rife with rulers, swept into office on revolutionary waves that establish formally republican systems, entrenching themselves in ever-more authoritarian manner when popular opinion turns against them. That first election when the reins of government are to be turned over from those who led the system from its founding to those who have defeated them is crucial to establish the system’s republican bona fides. For Americans, that was the election of 1800, when the Democratic Republicans under Jefferson defeated the Federalists under Adams.

If such a change of power is to occur peacefully, optimally the verdict of the voters is clear and the process of change transparent. Anything less greatly reduces the chance for peaceful transition. Judged by those standards, the election of 1800 was a bad omen for Americans at the time. The selection of the President was thrown into the House of Representatives, where it took 36 ballots and considerable political intrigue to select the leader of the victorious group, Thomas Jefferson. In a bit of historical irony, the delay was not due to Federalist plotting, but the fact that Jefferson and Aaron Burr received the same number of electoral votes. Though the latter was the intended vice-presidential nominee, he declined to step aside, making future relations between the two rather frosty. That lengthy and murky process promoted talk of the use of force by both sides, ultra-Federalists for whom the political chaos justified disregarding the election results and rabid Jeffersonians who called on state militias to march on Congress to compel the selection of their champion and to “punish their enemies,” to borrow a phrase.

Fortunately, Adams and (perhaps more reluctantly) Jefferson, along with other cooler heads in both groups, subordinated their immediate political advantage to longer-term republican stability. Adams left town. With political manipulation from, among others, Alexander Hamilton of all people, Jefferson was elected, after all. In turn, Jefferson, prodded by the pragmatic among his advisors, limited political retaliation against his vanquished opponents.

Contributing to the murkiness and indecision of the process was the formal constitutional structure for election of the President. It was anticipated that the system in Article II of electors chosen as directed by the several state legislatures would nominate several candidates for President. After the election of George Washington, it was surmised, no nominee likely would receive a majority vote from those electors. Instead, nominations of up to five individuals (based on each elector voting for two persons) would be presented to the House of Representatives, which would choose as President the person who received the approval of a majority of state delegations in that chamber. Worse, it turned out, the runner-up would be Vice-President.

On first glance, as I explained in connection with Article II, Section 1, clause 3, the system made great ideological and historical sense. Hamilton, one of the principal architects, wrote proudly in Federalist 68 that “if the manner of it be not perfect, it is at least excellent.” The system would produce the most qualified nominees, as those would be selected by a small number of persons who were themselves chosen for their fitness to make wise selections and to avoid “cabal, intrigue, and corruption.” On a more practical level, the system contained checks and balances whereby unqualified local favorites might receive scattered votes, but a group of better-known and more qualified regional and national figures would receive enough votes to be nominated. The selection of the President from the nominees would then be made by the House, whose members’ decisions would, presumably, be reviewed for wisdom and lack of corruption by the voters at the next election.

In fact, the emergence after the Constitution’s adoption of nascent proto-parties spoiled the plan. Initially, a group of Congressmen coalesced around opposition to the ambitious Hamiltonian program of public finance and commercial development represented in the Treasury Secretary’s famous three reports to Congress in 1790 and 1791. Their enigmatic and at times reluctant figurehead was Thomas Jefferson, though most of the organizing was done by James Madison and others. This development had the classic characteristics of what has historically been called a political “faction,” a term that any righteous and self-respecting republican of the time found vile. Factions developed in support of (or, more likely, opposition to) some matter of political controversy or charismatic political figure. They tended to rise and fall with such single issues and figures.

Once a faction formed in opposition to Hamilton, the “spirit of party” (i.e. political self-interest or local parochial advantage, rather than the “common good”) was said to have been loosed in the land. Acting purely out of self-defense, as they assured the people (and themselves), Hamilton’s supporters, too, organized as a coherent group. And whatever charismatic ante the Jeffersonian faction might have from their leader in this political poker game, the Federalists could “see” with the personality and political skills of Hamilton and “raise” with the increasingly partisan stance of George Washington.

Both sides quickly organized into entities that more resembled modern political parties. Both were centered in Congress, but began to make mass appeals to the public. The Federalists were far superior in the number and reach of their newspapers (unlike today’s media, in those days newspapers were refreshingly candid about their political biases). But the Jeffersonians were more adept at public organizing, honing their skills in that arena because they were the minority in Congress during most of this time. Ultimately, it was that latter skill that proved crucial in 1800.

In practice the Congressional caucuses dominated the nomination process, and the discipline of the emerging party organizations—especially of the Jeffersonians–at the state level, effectively turned the electors into voluntary partisan non-entities.  As Justice Robert Jackson satirized them in a dissenting opinion in 1952, “They always voted at their Party’s call, And never thought of thinking for themselves at all.”

Prodded by the debacle of the election of 1800 and the emergence of a rudimentary two-party system, the Congress and the states adopted the Twelfth Amendment. Primarily, this changed only the process by which nominations for President and Vice-President were made and placed the election of the Vice-President in the Senate if there was no electoral vote majority. That has been enough, however, to avoid a repeat of the confusion of the election of 1800, at least once a stable two-party political structure emerged in the 1830s. The election of 1824, similarly chaotic, was the result of the breakdown of the existing structure into multiple competing political factions. Admittedly, there have been a few close calls, such as in 1876 and 2000. The system has worked, though critics might say it has done so in spite of itself. At the very least, it has worked in a manner unforeseen by the Framers.

Incidentally, as the Supreme Court opined in the 1952 case (Ray v. Blair) mentioned above, states can disqualify electors who refuse to pledge to vote for their party’s candidate. The Court reasoned that electors are acting for the states and can be regulated by them. Of course, “automatic” voting for the candidate to whom the elector is pledged can result in a surreal spectacle like that in 1872 when three Democratic electors cast their votes for their candidate, Horace Greeley—who had died.  Justice Jackson’s dissent emphasized the Framers’ design of the role of electors and argued that a state can no more control “the elector in performance of his federal duty…than it could a United States Senator who also is chosen by, and represents, the State.”  About half of the states have laws that purport to punish a “faithless” elector, but no such punishment has ever occurred.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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