Eric Marcarelli

Software Developer, Writer, Painter

The Twelfth Amendment

August 08, 2010 by in History, Writing

The presidential election system designed by the framers of the Constitution was ingenious. Each elector was supposed to cast votes for two people they wanted to be president. The votes would be tallied and the first place candidate would become the president and the second would be the vice president. Unfortunately, it didn’t work. In the election of 1800 the two Democrat-republican candidates, Thomas Jefferson and Aaron Burr, tied with seventy-three elector votes each and it fell to the House of Representatives to choose between them. The House voted thirty-six times before one candidate, Jefferson, finally received the required support to be named president. The constitutional electoral system clearly needed work. However, change did not come as easy or quickly as one might imagine. Although it may seem to be a trivial technical change to the operation of government, the Twelfth Amendment was controversial from its inception. The battle for passage was difficult and its goals were achieved at the price of a weakened vice presidency.

The first attempt at amendment came in May of 1802 from Representative Philip Van Cortlandt of New York (Currie 74). The original text of the amendment states in its entirety: “That in all future elections of President and Vice President, the persons voted for shall be particularly designated, by declaring which is voted for as President, and which as Vice President” (Annals 1288; vol. 11). The debate that follows centers mostly on procedure: whether enough of the House was present and if they had enough time left in session to consider the amendment (Annals 1291; vol. 11). To this argument Cortlandt replied that although it was late in the session, “the subject had been before the House for months, and before the people for years” (Annals 1292; vol. 11). After that the House decided against postponement and the amendment was brought to a vote (Annals 1292; vol. 11). Despite the apparent reservations it passed forty-seven to fourteen (Annals 1293; vol. 11). Things did not go as favorably in the Senate, however, where the amendment “passed in the negative” receiving only fifteen of the sixteen votes required for passage (Annals 304; vol. 11). Congress adjourned shortly thereafter and the amendment was left to rest for over a year (Annals 306; vol. 11).

The amendment was proposed for the second time at the first meeting of the Eighth Congress. In October of 1803 John Dawson of Virginia and DeWitt Clinton of New York brought proposals identical in text to the first attempt before the House and Senate, respectively (Currie 75). This early introduction allowed far more debate to arise than in the previous attempt. The argument essentially divided along party lines. Supporting the amendment were the Republicans who nearly lost their first choice for president in the election of 1800. Opposing the amendment were the Federalists who, believing themselves unable to win an election in the immediate future, wanted to “preserve the unholy possibility that they might be able to choose between their opponents in the House” (Currie 75). Debates between members on the opposing sides raged for the next two months.

One of the principle arguments of the Federalists centered on the vice president, the office which the amendment most directly impacted. Under Article II of the original constitution each presidential elector cast two votes for president and the second place contender was named the vice president. This system ensured that the vice president was always someone of presidential caliber, but voting directly for the office under the Twelfth Amendment offered no such safe guard (Currie 76). Senator White of Delaware argued that since people “attach very little importance to the office of Vice President,” electors would likely be “indifferent about the reputation and qualities of the candidate” (Annals 143; vol. 13). Senator Plumer agreed, claiming the amendment “has a tendency to render the Vice President less respectable” (Annals 155; vol. 13). He goes on to say that “in electing a subordinate officer the Electors will not require those qualifications requisite for supreme command” (Annals 155; vol. 13). Interestingly, there was a proposal that seems to alleviate this problem and at the same time prevent another election fiasco: allow each elector to cast one vote for president and choose the second place candidate as vice president as the founders intended (Currie 77). Federalists attacked this concept on the basis that allowing two votes “affords a degree of security to the small states against the views and ambition of the large states” (Annals 155; vol. 13). The rise of political parties also made this idea unpopular with both sides since it meant the opposition, not merely a capable rival, would end up second in the chain of command (Currie 77).

Another problem emerged from a seemingly simple point. When the presidential electors fail to grant a majority to a certain candidate it is up to the House to select the president. Under the original Constitution the House is to pick from top five candidates. The Federalists generally wanted to keep this the way it was while Republicans such as Samuel Smith wanted the choices limited to three (Currie 79). Smith argued that under the Twelfth Amendment “there can be little apprehension of having more than two or three principle candidates” because electors would be voting for only one candidate each (Annals 101; vol. 13). If five were allowed, Smith feared, a candidate “who had only one vote [would be placed] on the same footing with him who had seventy-three” (Annals 101; vol. 13). Proponents of small states, however, favored such an outcome, and worried that limiting the number to three would “exclude candidates from the smaller states” (Currie 80). Although the House originally opted to retain the original five, it eventually agreed to the Senate’s proposal of no more than three and the matter was settled (Currie 81).

After losing the battle between three and five choices for president in the House, Federalist Thomas Pickering brought up the potential problem that there was no provision in the constitution for a case in which the House failed to select a president (Annals 128; vol. 13). It had, after all, taken the House thirty-six tries to elect Jefferson, and it could very well have remained deadlocked past the inauguration day. Pickering suggested that “if after 24 hours no election had taken place, then the President shall be chosen by law” (Annals 128; vol. 13). When Samuel Smith asked for elaboration on the phrase “by law,” Pickering indicated the President may be chosen by “lot, or by ballots in a box” (Annals 129; vol. 13). This idea clearly did not go over well, as Smith replied they might as well “throw the dice for the Executive Chair” (Annals 129; vol. 13). Pickering’s idea was brought to a vote and failed to pass (Annals 132; vol. 13). Senator Adams then proposed the vice president should take the office of president if the House failed to produce a winner on time, and this proposal made it into the final amendment.

Despite these debates and struggles the amendment did ultimately pass in both the House and Senate. In the House the vote came to eighty-four to forty-two-just exactly meeting the required two-thirds margin (Currie 94). Two weeks later the first states started ratifying the amendment and within six months all except Delaware, Massachusetts, and Connecticut had ratified (Currie 94). The amendment went into effect in time for the 1804 election where Jefferson would win a landslide victory (Currie 94). Since its ratification there have been no serious attempts to repeal the Twelfth Amendment, except insomuch as there have been attempts at dismantling the entire Electoral College. The Twentieth Amendment did update parts of the Twelfth for mostly trivial matters in 1933. The date the president takes office was changed from the fourth to the twentieth of January (Corwin 942). Additionally, the cases in which the vice president assumes the presidency are expanded to include the death of the president-elect before he takes office (Corwin 942).

The most significant consequences of the Twelfth Amendment fell on the office of the vice president. As is evident from the debates surrounding the amendment, it was by no means unforeseen, but was certainly unintended. Since the vice president has so few responsibilities, the framers of the Constitution worried that a man qualified for the office would not seek it (Wilmerding 26). Indeed, John Adams remarked while serving as vice president that it was the “most insignificant office ever the mind of man contrived or his imagination conceived” (Wilmerding 26). To account for this problem, the founders intended a system in which the vice president was “discovered, not elected” as the second place candidate to the presidency (Wilmerding 30). By requiring electors to directly select a vice president, the Twelfth Amendment eradicated that system and has contributed to a trend of weak vice presidents (Wilmerding 24). It seems the Twelfth Amendment is indeed “stacked against selection of a vice president qualified to take over the presidency” (Currie 76). Since the Twelfth Amendment has degraded the office of vice president to such a degree, I advocate abolishing the office entirely. In its place I would suggest a productive office in the chain of command be designated as temporary successor to the president and require a new election to be held the next year irregardless of the previous schedule. Of course, our current system is so long established that it is unlikely any such change will occur and we will have to continue working within the improved, but far from perfect, system laid out in the Twelfth Amendment.

Despite its seemingly trivial nature, the Twelfth Amendment was highly controversial. The battle for passage required two attempts and the amendment had to withstand a number of attacks by Federalist opponents. Not only its basis was challenged, but almost every detail of its construction was scrutinized. Ultimately its goals were achieved at the price of a weakened vice presidency. It is interesting to note, as Paul Finkelman points out, that the Twelfth Amendment was the last major technical change to the Constitution-all the others are elaborations on the rights of citizens or responses to some change in the national character (Finkelman 186). It is a testament to the genius of the framers that the basic system they worked out in 1787 continues to work without any significant constitutional tinkering in over two hundred year.

Works Cited

Annals of Congress (Vol. 11 & 13). 1835. Library of Congress. .

Corwin, Edward, ed. 1953. The Constitution of the United States of America: Analysis and Interpretation. Washington: U.S. Printing Office.

Currie, David P. 2000. “The Twelfth Amendment.” In Unintended Consequences of Constitutional Amendment, ed. David Kyvig. Athens: University of Georgia Press, 73-110.

Finkelman, Paul and Melvin I. Urofsky. 2002. A March of Liberty: A Constitutional History of the United States (Vol. 1). Oxford: Oxford University Press.

Wilmerding, Lucius Jr. 1958. The Electoral College. Boston: Beacon Press by arrangement with Rutgers University Press.

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