The transformative Twelfth Amendment.

• Author: Hawley, Joshua D.
• Position: III. A Revolution in Form through Conclusion, with footnotes, p. 1541-1586

3. A REVOLUTION IN FORM

   Most observers have missed the significance of the Twelfth Amendment because of what it did not do. It did not abolish the electoral college; it did not institute a direct national plebiscite; it did not direct the states to choose their electors by popular vote. (296) At first glance, the Amendment seems to have done relatively little, even to be, as Bruce Ackerman has recently said, "the very opposite of a serious attempt to think the problem [of presidential selection] through." (297)

   First glances can be deceiving. The Amendment in fact fundamentally altered the operation of the electoral college, and with it, the relationship between the executive and legislative branches. The Amendment accomplished this by directing electors to designate their ballots for President and Vice-President and by reducing Congress's role in presidential elections in favor of greater and more direct control by the people. The effect was to facilitate political competition for the Executive, further unify the branch under the political control of the President, and make the President the choice of popular majorities. These innovations converted the Philadelphia presidency into a political one for good, shifting the structure of the constitutional order along the way. In the end, the Republicans' Twelfth Amendment gave the President's executive powers new scope and potentially new meaning, even as it produced a different sort of politics from the one the Framers had anticipated--one no longer congressional, but centered on the President.

   1. Enter the Twelfth Amendment

      The Amendment began life on October 17, 1803, when Representative John Dawson, Republican from Virginia, introduced the following resolution on the floor of the House:

      That, in all future elections of President and Vice President, the persons shall be particularly designated, by declaring which is voted for as President, and which as Vice President. (298) De Witt Clinton, Republican from New York, introduced substantially similar language in the Senate four days later. (299) Debate began first in the House, on October 19, (300) and lasted for nine days, with the House voting to approve an amendment proposal on October 28. (301) Meanwhile, Senators began debate on October 24, but kept at it only briefly before various exigencies, including the need to debate the Treaty of Paris with which President Jefferson proposed to purchase the Louisiana territory, (302) forced delay. The Senate eventually returned to the Amendment on November 23. (303) After a week of robust and sometimes heated debate, the Senate approved on December 2, 1803 a version different from the House's text in a modest yet, as we shall see, critical way regarding the number of candidates referred to the House in the case of a disputed election. (304) The House ultimately accepted the Senate's version on December 8. (305)

      As the Amendment cycled through Congress, debate narrowed to three major issues. First was the Amendment's leading feature, the designation of ballots for President and Vice-President. (306) Amendment supporters in fact called the text the "designating" Amendment. (307) Designation was not a new idea; it had previously enjoyed bipartisan support. (308) But in the Eighth Congress, the designating principle proved controversial. Once raised, it invited two additional and difficult questions--the proper number of candidates to be referred to the House in the event of a disputed election (309) and the status of the vice-presidency. (310) These three issues together formed

      the core of congressional debate. Raised in sequence, each was logically, even inseparably, connected to the other, and by the conclusion of debate in early December, Republicans offered essentially one argument on all three subjects: it was the right of popular majorities to choose the President. (311) Listening to their case, the Federalist John Quincy Adams realized that Amendment sponsors wanted to "reform [the Constitution's] federative institutions upon popular principles." (312) He was exactly correct.

      1. Debate in the House

         The debate began in the House with designation. (313) Dawson's terse initial draft called for ballot designation and nothing more, (314) and Republicans made their case for it first on rather technical grounds. (315) Representative John Clopton, a Republican from Virginia and one of the Amendment's primary supporters, reminded his listeners just how easy it was, in the absence of separate ballots for President and Vice-President, for the electoral college to wind up selecting as President a candidate who was the first choice of practically no one. (316) Clopton posed the hypothetical of an election between four presidential candidates in which the electors split their "first choice" votes between two candidates, while more or less uniformly giving their "second choice" votes to a third and scattering only a handful of votes to the fourth. (317) The result was that the third candidate, whom no elector wanted to be President, became President, and one of the first two candidates became Vice-President instead. (318) A mechanism so liable to malfunction, where malfunction meant failure to reflect voters' specific preferences for President and Vice-President, "cannot be expected," Clopton concluded, to "receive the public confidence." (319)

         The scenarios only became more complex and troubling when one factored in organized partisan competition for the presidency. The election of 1796 demonstrated that because the second-highest vote recipient automatically became Vice-President, the President and Vice-President might often be aligned with different parties. (320) A hostile and scheming Vice-President, however, might use his constitutional presence in the Senate to build an independent power base, allying with opposition Senators to thwart the President's agenda and create a sort of shadow government. (321) Any attempt to prevent this outcome posed additional problems. Electors who wanted to ensure that both of their party's candidates came to office, and to the specific offices for which the party had chosen them, had limited options. They could give exactly the same number of votes to their presidential and vice-presidential candidates, but that would produce the very deadlock between the top two candidates that sent the election of 1800 to the House of Representatives. (322) Alternatively, electors might toss away a handful of their second-choice votes on a candidate not from their party who had no chance of attaining any office. But this route would only be safe if electors were sure their majority was sufficiently large to prevent the other party from placing their top-finishing candidate into the vice-presidency. (323) For that matter, the majority party had to be careful who they nominated for Vice-President on their own ticket because the minority might cast a number of their second-choice votes for the majority's vice-presidential candidate and thereby make that candidate the President. (324) This last scenario is just what Republicans feared Federalists intended to do in 1804, elevating Aaron Burr over Jefferson. (325)

         John Quincy Adams inadvertently summarized the mechanical case for designation when he concluded that "the present mode is too much like choice by lot." (326) One small mistake by one anonymous elector could prevent the public's clear preference for President from claiming victory. (327) The only way to make the college accommodate specific voter preferences was to designate the ballots. (328)

         Republicans were not content to rest on this argument, however. They pressed forward to link ballot designation with election by popular majority. "For, sir," John Clopton claimed, "in a Government constituted as our Government is ... all the constituted authorities are the agents of the people"--or should be--and that emphatically included the President. (329) It was inexcusable in a government founded on popular rule that the electoral college could not accurately register the people's preferences for President and Vice-President. "[T]he suffrages given for the election of those agents ought ever to be a complete expression of the public will," Clopton said, "and should ... be directed immediately to those persons in whom the Electors intend to place confidence, as their agents, in the particular offices for which the elections are made." (330) This logic led naturally to the second major issue in debate--the number of candidates to be referred to the House in the event of a disputed election. On October 19, just two days after Dawson introduced his minimalist text, Republicans proposed to reduce the number of candidates referred from five to some smaller contingent. (331) Representative Clay proposed two; (332) the House committee appointed to consider Dawson's resolution suggested three. (333) Here too, the case could be made on mechanical grounds. The original Article II provided for five candidates to be referred, but those five were candidates for both President and Vice-President; the original text did not recognize any distinction. (334) If the ballots were to be separated, the logic of Article II suggested only approximately half that number--two or three--should be referred to the House for election specifically as President, and similarly with the candidates for Vice-President. (335)

         But once again the Republicans quickly carried the argument onto populist terrain. They contended that reducing the number of candidates referred to the House was the only way to keep faith with the great original purpose of the Constitution, popular sovereignty. (336) "[T]he object of the proposed amendment" was the vindication of "a fundamental principle," John Clopton argued. (337) "It is the primary, essential, and distinguishing attribute of the Government, that the will of the people should be done; and that elections should be according to the will...