The Transformative Twelfth Amendment

By Hawley, Joshua D. | William and Mary Law Review, April 2014 | Go to article overview

The Transformative Twelfth Amendment


Hawley, Joshua D., William and Mary Law Review


Abstract

Scholars have long treated the Twelfth Amendment as a constitutional obscurity, a merely mechanical adjustment to the electoral college--and perhaps a less than successful one at that. This consensus is mistaken. In fact, the Twelfth Amendment accomplished one of the most consequential changes to the structure of our constitutional government yet. It fundamentally altered the nature of the Executive and the Executive's relationship to the other branches of government. The Amendment changed the Executive into something it had not been before: a political office. The presidency designed at Philadelphia was intended to be neither a policymaking nor a representative institution, but rather an apolitical office standing above partisan conflict. The Twelfth Amendment changed this design. It converted the electoral college into a form of public election, facilitating organized political competition for the presidency and linking the office to popular majorities. This revision of the electoral college had twin structural effects. First, the Amendment unified the executive branch under the political control of the President and made single-party control of the Executive a near certainty. Second, the Amendment changed the Executive's relationship to Congress by conferring on the President new warrants for political action and a representative status it had not previously enjoyed. Together, these structural changes altered the very nature of the Executive--and along with it, the meaning of "executive power."

TABLE OF CONTENTS

INTRODUCTION
  I. Before the Revolution: The Philadelphia
     Presidency
       A. Mr. Madison's Project
       B. Making a Patriot King
 II. The Road to the Political Presidency
       A. Political Potentials
          1. Politics and Structure
          2. The Crisis of 1800
       B. Reimagining the Executive
III. A Revolution in Form
       A. Enter the Twelfth Amendment
          1. Debate in the House
          2. Debate in the Senate
       B. Changing Structure: What the Twelfth
          Amendment Did
          1. Entrenching Political Competition
          2. Warranting Political Action
          3. Unifying the Executive
 IV. Structural Reasoning About the Executive
       A. A Brief Defense of Structural Reasoning
       B. Application: The Removal Power
          1. The Core Argument
          2. Cases and Controversies
             a. Myers v. United
             b. Humphrey's Executor
             c. Bowsher v. Synar
             d. Morrison v. Olson
       C. Other Applications
          1. The Treaty Power
          2. Directive Authority over Administrative
             Agencies
CONCLUSION

"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.... The person having the greatest Number of votes for President, shall be President, if such number a majority of the whole number of Electors appointed; and if no person have such a 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. "

--U.S. Constitution, Amendment XII (1804).

INTRODUCTION

It is time the Twelfth Amendment got its due. For years, the Amendment has been regarded as a constitutional nonentity--a piece of textual fiddling not worth remembering or one that, if it bears any significance at all, serves only to illustrate the irredeemable absurdity of the electoral college. (1) Legal scholars have all but ignored the text; historians, similarly, have given it little attention. …

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