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Happy Friday! Welcome to the Dog’s continuing series on the Constitution of the United States of America. This series springs from the fact that until recently the Dog had never read the entire Constitution before. Sure, he had read and argued about certain Amendments and knew in a pretty general way how the branches of government were set up, but that is in no way the same as reading through and thinking about the whole thing. Being a gregarious type of canine, he thought he would share this exercise with his fellow Netroots.
Please note the Dog is not a Constitutional scholar but just an interested citizen, so he may be incorrect in some of his thinking about the meaning of the various parts of the Constitution. If you think that is the case, comment correct the Dog, that way we all learn something! If you are coming in in the middle of this series, you can find the previous Friday Constitutionals here:
Friday Constitutional 1 – Preamble, Sections 1 And 2
Friday Constitutional 2 – Article One, Sections 3 And 4
Friday Constitutional 3 – Article One, Sections 5 and 6
Friday Constitutional 4- Article One, Sections 7 and 8
Friday Constitutional 5 – Article One, Sections 9 and 10
This week we leave the Article One and the Legislative Branch behind and move on Article Two, where the powers of President and the Executive Branch are detailed.
Article Two:
Clause One:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Clause one lays out the time table for the election of Presidents and Vice Presidents. This Clause was modified by the 22nd Amendment, which was ratified in 1951. That Amendment reads:
Section 1.
No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
Section 2.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
The 22nd Amendment makes clear that any person can serve no more than two terms as the President of the United States, ever. Once you have completed that you are no long part of the pool of people qualified to be President. It has an interesting affect in that you will never see a former president serving as Cabinet Secretary as they are in line (some further than others) of succession. It would be a Constitutional crisis if a former president were to succeed a current president, but only if the former president had served two terms. A one term president would not cause a problem.
It is also interesting that this particular Amendment had a time table for ratification. Not all Amendments do that. It may have been to keep it from suffering the fate of the 27th Amendment which took 203 years to ratify.
Clause Two:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
This clause sets up the Electoral College. As we all know the number of Electoral College Votes is equal to the number in the Congressional delegation from each state. It also allows the States to appoint in any way they like these Electors. This brings up an interesting question; do you know how the Electors from your state are appointed? The Dog is going to have to look up how it is done in Colorado.
It also prevents Representatives, Senators and anyone else that is in Federal Office or paid by the Federal Government from being an Elector. This is the Framers trying once again to avoid conflicts of interest when it comes to the governance of their new nation.
Clause Three:
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List 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 shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing 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. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
This is a whopper of a clause! Read it through and you will see that Electoral College voters received two votes, one of which had to be cast for someone living in another State! That seems like another attempt to keep local concerns form polluting the election of the president. The Dog is not going to comment on the way that candidates were chosen, as the Constitution does not give any guidance on that. There are surely laws at the State level that direct the Electors to cast their votes for particular candidates, but there could be an argument made that the Electors, once appointed, could vote for whomever they deemed best, regardless of other considerations like popular vote.
It is interesting that the clause provides for no candidate having a majority of the vote and allows for the House of Representatives to pick from the top five candidates in terms of Electoral Votes.
This clause was superseded by the 12th Amendment, to read as follows:
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.
This changed the number of possible candidates for the House to choose from down to three, instead of the original five.
It also provides that if the House can not deiced on a President before beginning of the term (at that time) then the Vice President would serve until he is chosen.
The part in italics was itself changed by the 20th Amendment, which was ratified in 1933. We will review that Amendment separately, but it changed the dates for the start of the new Congress and the start of the new presidential term. It was in part a response to the problems of a long transition from the Hoover administration and the FDR administration. Hmm, it seems they may not have shortened it enough, given today’s situation, eh?
The Dog is going to call this session to an end. It is his usual practice to complete each section, but Clause Three has been so involved that this essay is running long.
What do you think, my fellow citizens? Is your brain sloshing with the arcane of the Constitution yet? The floor is yours .
8 Comments
Thoughts? Corrections? Emotional Outbursts?
Remember that the Framers had a distinct distaste for direct democracy, and worked their hardest to eliminate it. Senators were initially elected by the State Lege, not by the people. The President and Vice President were elected by the Electoral College, not by the people.
As I recall from a PoliSci class I took a long time ago at college far away, there was no nomination mechanism in the early days. One ‘ran’ for President (if one chose to ‘run’) by lobbying for support amongst the political classes. Candidates were nominated by receiving votes in the Electoral College. Washington was an obvious unanimous choice in 1790, Adams and Jefferson less so. By then it was obvious that there had to be at least cooperation if not amity between the two Federal officers. So we got the 12th Amendment. The Electoral College might have been a good idea, but it suffered from poor implementation.
And you are absolutely correct that electors have a free vote once elected. By the way, when you voted for President on November 5, 2008, you were really voting for a slate of electors pledged to the candidate of your choice. Given where we are, I suppose that for most readers that was a slate pledged to Barack Obama.
Personally, I think we ought to change the election system again. If we keep the Electoral College, then we ought to vote for the electors directly. Then we gather the College in D.C., and let them handle the nomination and election procedure. We eliminate the office of Vice President, and begin succession with the Secretary of State.
Alternatively, we go to direct election of the President/Vice-President and forget the whole Electoral College nonsense.
Thanks for the thoughts! I am not sure about getting rid of the VP though, who would you use to break ties in the Senate?
As for the direct election of the Pres. and VP I am all in favor of that. I like the compact between the States that is making its way around. That way we don’t have to amend the Constitution, which should (IMHO) only be done when absolutely necessary.
Oh, I don’t know. Elect a (single) national senator-at-large by popular vote?
Change the name of the office from Vice-President of the United States to President of the Senate, elect it nationally for a (single?) 8 year term, and take the office out of the line of succession.
That would actually give the office some real political clout. For example in Texas the most powerful politician in the state is not the Governor, it’s the Lieutenant Governor. As President of the Texas Senate, the LtGov controls the legislative agenda. The Governor’s power is limited to appointment to the various boards and commissions and signing/vetoing legislation.
Hmmmm, I think that is going to take a lot of thinking through to make work. I am not completely opposed to it, but I do have a suspicion of big changes, until you think them through.
Oh, it’s not happening.
Unless we call a new Constitutional convention. This would never, ever get through the amendment process. It wouldn’t get through because it shackles the Senate.
Technically, Caribou Barbie was correct when she said that it might be fun to be Vice President and mess around with legislation. That’s Constitutionally permissible, because the VP is in fact President of the Senate. Historically, however, she’s dead wrong. Under the Rules of the Senate, the real power is vested in the Majority Leader. (Aside: it’s a pity Reid hasn’t figured that out yet.) In the view of the Senate, Vice Presidents are supposed to be proper Victorian children: seen when they are needed (to break a tie, swear in new senators, go to funerals and weddings when the President doesn’t want to go) and otherwise silent and invisible.
The fly in this particular ointment is that the PotS would then have a fair amount of ability to f*** with the President’s legislative agenda. It could conceivably land us in the same sort of Adams v Jefferson internecine wars that got us the 12th Amendment.
So it’s not happening. But having seen some of the idiots (well, one particular idiot) who managed to get appointed to the Presidency, I’m beginning to share the Framer’s distaste for direct democracy.
a fascinating series, STDS
Thanks, I am getting a lot out of it, so it is win/win!