It is time to examine the way our Founders structured the Presidency. Never before had a Constitutional Republic been tried. The colonies had existed under the dictatorial rule of the King of England, but now they had a fresh start.
Instead of an all-powerful head of state, our Founders wisely chose a government of the people, by the people, and for the people, to quote Abraham Lincoln’s Gettysburg Address.
We approach the subject from the viewpoint of Alexander Hamilton, James Madison, and John Jay, who wrote a series of letters to the editor of a New York newspaper advocating the proposed Constitution.
Hamilton later became Secretary of the Treasury. Madison, the Father of the Constitution, was our fourth President. John Jay became Chief Justice of the Supreme Court. They wrote as collaborators under the name Publius. In some cases it is unclear which author wrote which letter.
The executive Power shall be vested in a President of the United States of America.
George Washington’s great performance as the military leader of the American Revolution made him a candidate for King, and his reluctance to assume that role has made all the difference.
Had Washington allowed himself to placed in the role of monarch, the greatest nation on Earth would have become just another monarchy.
Hamilton explains in Federalist Paper #70 why the Executive branch is headed by one person:
Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature.
Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion… they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy.
- 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:
Alexander Hamilton, in Federalist Paper #67, noted that some Americans resisted even the limited power to be placed in the office of President, noting:
He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty.
Hamilton advocated for a four year term, rather than the hereditary lifetime role of the King of England, in order to keep the Presidency from devolving into despotism. In Federalist Paper #70 he compares the President to the King:
That magistrate is to be elected for FOUR years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between HIM and a king of Great Britain, who is an HEREDITARY monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between HIM and a governor of New York, who is elected for THREE years, and is re-eligible without limitation or intermission.
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.
The Twenty Third Amendment added electors for Washington, D.C.:
The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
The Congress shall have power to enforce this article by appropriate legislation.
The subject of the Electoral College resurfaces with each electoral cycle as a target for reform, but the Founders deliberately designed it they way they did to make elections fair.
The legislature is divided into the population-based house and the state-based senate to balance the representation of the whole population with the representation of each state as a separate government in its own right.
Each state votes as a whole, so that a state with six votes casts all six for one candidate. Each state gets an elector for each Representative and one for each Senator. Washington, D.C., gets three electors. The number currently needed to win is 270 of the 538 available.
Maine and Nebraska allow a split in which two electors vote for the candidate who won the popular vote and the remainder votes for the winner in each district.
The winner of the popular vote in the state has a slate of electors. Those electors are the ones who make the official votes: one for the Vice President and the other for the President.
Electors can vote for someone who did not win the popular vote but rarely do so. Most states have laws dictating that the electors choose the winner of their state’s popular vote.
Imagine going home to your state and explaining why you did not honor the choice made by the voters! This is called a faithless elector.
When we vote in November, we are actually voting for electors. The electors then meet in their respective state capitols to vote for the President and Vice President. On January 6 the Vice President opens the votes in alphabetical order by state in the presence of a joint session of Congress.
Objections to an electoral count can be lodged by a group that includes at least one Representative and one Senator.
This is why you will hear people talking about the 2020 election having the possibility of not being resolved until January. In the 18th century there was no instant transmission of information. After the polls closed in each state, the votes were counted manually.
A rider was dispatched with the news, but it could take days to travel on horseback from the most distant states.
With the mail in votes proposed in 2020, it has been suggested that counting the votes may be difficult and prolonged, which could delay the results.
Hamilton explains the purpose of electors being temporary in Federalist Paper #68 to keep them from influencing or being influenced by the President:
They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment… No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors.
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.
This section keeps one state from having all the power. If all the candidates are from the same state, that state is likely to receive more favors from national government.
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.
Initially the President was the candidate with the most votes, and the Vice President was the candidate with the second highest votes. This opened the possibility for the President and Vice President to have opposing agendas, violating the principle of executive unity advocated by Hamilton.
Interestingly, Hamilton would later fight a duel with Vice President Aaron Burr over political animosities. Hamilton fired overhead, but Burr shot and killed Hamilton.
The Twelfth Amendment changed the process, starting with the 1804 election:
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 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.
Now the President and Vice President are voted on separately by the electors.
If no candidate receives a majority of electors, a contingent election is held in the House of Representatives. Each state delegation gets one vote and chooses from the top three candidates.
In this case the Senate would choose the Vice President, with each state allowed one vote.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Initially the electors actually had the job of deliberating on the candidates and using their own judgement to pick one. Hamilton explains in Federalist Paper #68:
A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
Now the expectation is that the elector will vote for the candidate who had the most votes in each state’s popular election.
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
The eligibility requirement for the President are more stringent than those for the Congress because the President is the head of state. As America rose in prominence in the ensuing centuries, the President of the United States became known additionally as the Leader of the Free World.
Hamilton did not discuss the specifics in Federalist Paper #68, but he believed the process would produce excellent candidates:
It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.
We can extrapolate from Federalist Paper #62, written by either Madison or Hamilton, and its discussion of Congressional requirements:
The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The section written about the removal or death of the President has been further elucidated by the Twenty Fifth Amendment:
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Pay special attention to the section describing the disability of the President. The 2020 election includes a candidate who has trouble making coherent statements, leading many to believe that he has dementia.
If the President shows signs of dementia or other disability while in office, the Vice President can lead a delegation to ask Congress to remove the President from office.
If successful, the Vice President then becomes President. This may be in our foreseeable future.
When you are choosing your Presidential candidate, be sure you also examine the Vice Presidential candidate.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
In Federalist Paper #73, Hamilton expounded on the separation of powers that keeps one branch from controlling another:
The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
In Federalist Paper #44, Madison tells us why the state magistracy should be bound by oath to the US Constitution, rather than the national leaders taking an oath to support the state constitutions:
The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the States.
Thank you for joining me on my journey through the Constitution, viewing it through the eyes of our Founders. Read the rest of my series on the main text of the Constitution, starting with the first one.
To read the full text of the United States Constitution, go to the National Constitution Center. To see the full text of the Federalist Papers, go to guides.loc.gov. For more details on the Electoral College visit the US House of Representatives website.
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