The 12th Amendment would seem to have been the product of a similar balance of priorities to that of the previously discussed 11th Amendment. To be sure, there was some manner of popular support for an alteration to the manner in which votes in the Electoral College translated into the final selection of the President and Vice-President. As these two offices were really the only positions in the whole of the federal government with a truly national constituency – and as the Elections of 1796 and 1800 had both given rise to no small amount of public controversy – it stands to reason that Americans living in every state and at various different levels of influence and income might have felt some degree of investment in how and whether some modification to the same was ultimately made. All that being said, it likewise cannot be denied the extent to which, at this point in American history, the state governments played a far more direct role – and had a much more direct interest – in who was elected President and how the relevant votes were ultimately tallied.
For the first quarter of the 19th
century, recall, few states granted the responsibility for choosing
presidential electors to the voting public residing therein. Pursuant to
Article II, Section 1 of the Constitution, “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 [.]” And to that end, most of the states chose to vest the
relevant selection authority in their respective general assemblies. Granted, this
state of affairs fluctuated substantially over the course of the first forty
years that followed the ratification of the Constitution. In 1792, for example,
ten out of fifteen states went with this method; by 1812 this ratio had dropped
to nine out of eighteen. But by 1820, legislative selection still remained the norm
in nearly half of the states. And at the time of the Election of 1800 – the
outcome of which most directly contributed to the ratification of the 12th
Amendment in the summer of 1804 – ten out of sixteen states left the selection
of presidential electors to their respective general assemblies. Based on these
facts, it would seem fair to characterize American presidential elections prior
to the beginning of the 1830s as primarily state-focused affairs in which the
will of the general population was for the most part not represented. The state
assemblies appointed the membership of the Senate and – for the most part – also
chose the electors who would ultimately cast their state’s votes for President.
The passage of the 12th Amendment by Congress in 1803 would
accordingly seem to represent an attempt by the states to use one of their
constitutional powers to achieve a more desirable outcome by way of another of
those powers.
There is a good deal more to the story of
the 12th Amendment, of course. The reason that the Elections of 1796
and 1800 became such sources of consternation and controversy among a large
swath of the American public – thus prompting the drafting and passage of the
relevant amendment – was that the nation was then in the midst of a period of
extreme partisan acrimony. Spinning out of the debates which accompanied the
ratification of the Constitution, the formation of the Federalist and
Democratic-Republican political factions in turn gave rise to intense
disagreement over all manner of foreign and domestic policy initiatives, one
outcome of which was the politicization of certain processes and mechanisms
which were consciously designed to be apolitical. The election of the United
States President was perhaps the most prominent among these, the basic
framework thereof having been devised without any accommodation for formal
political affiliations. The states were supposed to submit their votes by way
of the Electoral College, Congress was supposed to tally them, and the top two
finishers were to be declared President and Vice-President, respectively.
Absent any particularly intense partisan conflict, this system functioned
adequately. So long as only one faction was dominant, the top two finishers
were bound to be politically aligned. But as soon as more than one faction
could claim a significant portion of the votes of the Electoral College,
problems began to arise.
In 1796, the first-place finisher was John
Adams (1735-1826), sitting Vice-President and national leader of the
Federalists, while the runner-up was Thomas Jefferson (1743-1826), former
Secretary of State and national leaders of the Republicans. Understandably,
given the intensity of their disagreement, neither faction was particularly
pleased with this outcome. This led, in turn, to attempts to game the system. The
Republicans in particular put a great deal of effort into attempting to ensure
that in the forthcoming Election of 1800, both of their desired candidates –
namely Jefferson, representing the faction’s Southern wing, and former New York
Senator Aaron Burr (1756-1836) standing in for its Northern contingent – would
attain both the first and second place finishes. But while the resulting
strategy – which was based primarily on the electioneering tactics of the
aforementioned Burr – did result in the Republicans locking the Federalists out
of the top two spots completely, the result was not the clean win which the
former faction had sought. As the system itself remained unchanged, the
Republicans had determined to have all of their chosen electors but one cast
each of their two votes for Jefferson and Burr, respectively, while the last
would cast only one of their votes and reserve this one for Jefferson.
Jefferson would thus emerge with the most votes in total while Burr would come
in second with exactly one less. Owing to some manner of miscommunication,
however, every Republican Elector cast both of their votes for the two candidates,
resulting in a tie, a contingent vote in the House, and a drawn-out period of
uncertainty and tension. Not only, it seemed, had the mechanism by which the
President was elected shown itself to be increasingly inadequate to the actual
needs of the American people, but even an understanding of this inadequacy was
not sufficient to counter the same. Wholesale reform was most definitely called
for.
Such reform remained the province primarily
of the state assemblies, however. Not formally, of course. William Plumer was
not wrong about that. But the state assemblies were entitled by the
terms of the Constitution to both select and instruct the membership of the
Senate. As long as the Senate was required to consent to any proposed
amendments before they could be formally approved by Congress, therefore, the
state assemblies could decide between them what any given effort in that vein would
look like. And in 1803 – in light of the aforementioned electoral crises – they
had every reason to seek after satisfaction. Notwithstanding the fact that many
of the relevant legislators had made a point of ensuring that they themselves
were responsible for disposing of their state’s Electoral College votes, two
successive presidential elections had not gone as they intended. Though they
had ensured that all of their state’s votes went to their preferred candidate
for office – and though said candidate did ultimately succeed to the office of
President – the Federalists who controlled the legislatures of states like New
York and Connecticut in the leadup to the Election of 1796 had nevertheless
been forced to make their peace with the fact that the office of Vice-President
was ultimately won by a staunch Republican. And in 1800, while they managed to
preclude this same outcome from happening again, the Republican legislators who
controlled the assemblies of states like South Carolina and Georgia – and who
were also solely responsible for allocated their state’s Electoral College
votes – were still forced to endure a period of tension and uncertainty as the final
tally resulted in a tie and the outcome of the vote was thrown to the House of
Representatives. In spite of the measures which their members had taken in
order to ensure a given outcome, in short, it seemed hardly any of the state
assemblies were getting the “bang for their buck” they desired.
Would Congress have approved of the
proposed 12th Amendment were it nor for the influence wielded by the
dissatisfied state assemblies in the Senate? In truth, it is rather hard to
say. It isn’t as though, in 1796 or in 1800, the American people were entirely
unconcerned with the identity and political affiliation of whoever it was that
won the office of President. Not all of them were particularly concerned, to be
sure, in no small part because not all of them could vote. But in the states in
which members of the Electoral College were chosen by popular poll – either
at-large or by districts – it most certainly did matter to the average voter whether
the outcome they desired was reflected in the outcome that occurred. Even in
states that gave the power of selecting members of the Electoral College solely
to the controlling majority of the relevant legislature, this was still bound
to be the case to no small degree. The voters of, say, Delaware might not have
chosen their Electoral College delegates directly, but they understood as well
as anyone that their choice in the most recent legislative election in their
state was essentially the same as their choice for President. If these voters
had been responsible, in the 1802 mid-terms, for directly electing the portion
of the Senate whose term was then set to be renewed, would they have based
their choice on declared support for a constitutional amendment? Again, it is
hard to say, though a thought does come to mind.
In states where delegates to the Electoral
College were chosen by the relevant legislature, it may have been the case that
the voters living therein did support such amendments as the lawmakers serving
therein felt that they had reason to seek. They had elected a slate of
legislators during the most recent local election cycle knowing full well that
those men would go on to choose their state’s delegation to the Electoral
College. And having seen their desires once again thwarted by one of the basic
structures of the Constitution, they were as eager as their lawmakers to see
the whole mechanism remodeled. But in the moment, it bears remembering, when it
came time for the state assemblies to provide instructions to their Senators,
the feelings of the general electorate need not have been considered in the
slightest. It would likely have behooved state lawmakers to do so – if they
wanted to keep their jobs, at any rate – but they could just as well have
entirely ignored public opinion and resolved instead to do what they felt was
best for themselves. Given the time and the resources to explain their actions
after the fact, the final results might not even have been all that bad. And
what then? If the American people could demand one thing of their state
legislators and these same men could do something else, what effect might this
have had on the relationship between these people and their Senators? How often
might the state assemblies have ended up attenuating the demands made by the
American people of their representatives in the Senate? If the answers to these
questions amount to anything other than “none at all” or “never” – and they
would indeed appear to – it would seem fairer to ascribe the 12th
Amendment to the agency of the state assemblies rather than to that of the
American people.
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