Here’s a possible election scenario which could have the unprecedented effect of generating praise for our long-unloved electoral college.

Imagine, if you can bring yourself to think it, that John McCain wins the election by a narrow margin in the electoral college. Note that about 24 states do not bind their electors to vote for the winner of the popular vote in the state. Now, imagine that electors from many of these states decide that Sarah Palin is simply not qualified to be Vice President, and they refuse to cast their VP ballots for her. As a result, no VP candidate gets a majority (270) in the electoral college. And so, pursuant to the Twelfth Amendment, the U.S. Senate chooses between the two leading vote-getters, Biden and Palin. Any doubt which one they’d choose?

I suggested in the last post that the Vice President is properly considered an elected official, despite riding into office on the coattails of the President who selected him. But I glossed over the reason why. Let me explain.

Under the Constitution, the election of the President and the election of the Vice President each require a majority of the electoral college.¹ Unlike mere voters, electors are commanded by the Twelfth Amendment to cast separate ballots for President and for Vice President. Thus, from the constitutional perspective, the VP is elected independently of the President.

From the perspective of mere voters, however, the VP is arguably less vetted than cabinet appointments, who at least face independent confirmation by the Senate. We are consulted on the VP’s selection only indirectly, and only through the party nominating process. To us, the VP is hardly different than the First Lady, who is also “selected” by the presidential candidate and assumes her “position” in the White House when the President is elected.

We do hold a theoretical bludgeon with which we might reject a VP selection—but we must be willing to yield the presidency too if we would wield the bludgeon. The fact that the VP’s name is formally on the ballot therefore makes little difference.

We need not be satisfied with the manner in which the Vice President is elected. But we need not fault the Constitution for that, unless we desire to eliminate the position entirely. Alternatively, we could consider statutory change to provide for separate popular election of the VP—the subject of a later post.

1. Electors are allocated according to the number of members in the states’ delegations to Congress. U.S. Const. art. II, s. 1, cl. 2. D.C. also gets 3 electors, as if it were the smallest state. See U.S. Const. amend. XXIII. 435 Reps, 100 Senators, plus 3 for D.C. = 538 electors. Hence, a majority requires 270. [↩]

In a previous post opposing the abolition of the Vice Presidency, I wrote that the VP has a democratic legitimacy unavailable to others in the line of presidential succession because the VP is (ordinarily) approved by the voters in a national election. But is the VP really elected in any meaningful sense?

Reader len comments:

I don’t agree that the vice president has truly faced a national election. The voters vote for a president. I think that the president’s choice of vice president has not played a decisive role in determining the president in any election so far. Even McCain’s choice of Caribou Barbie for VP is not alone going to be decisive in his loss, I think it is just one more factor demonstrating his judgment makes him unfit to be the president.

Clearly it’s true that the running mate does not face the same electoral test as the candidate for President. But can’t the VP at least boast the voters’ minimal seal of approval? Perhaps the voters are in effect saying: “in an emergency, we trust this person to take the helm.”¹

Or perhaps it’s not that simple. Obviously, the significance of a vote “for” a VP candidate is inextricable from a vote for the top of the ticket. Perhaps the evaluation of a VP candidate is similarly inextricable from the evaluation of the candidate for President. The more you like the top of the ticket, the more risk you’ll be willing to take on the bottom.

So which is it? Is it: (A) a vote for the ticket is both a vote for President and approval of VP, or (B) a vote for the ticket is a vote for President, while consideration of VP is just a factor in the overall evaluation of the candidate for President and confers no particular legitimacy on the VP?

An Unsatisfying Solution

A distinction might clear the issue up. There are (at least) two kinds of meaning in a vote. There’s the meaning/significance of the voter’s evaluation of the candidate—essentially a description of why the voter voted for X. And there’s the meaning/effect of the act of voting—essentially the voter’s contribution to the total tally, as a result of which X is either elected or not. The two are not necessarily related.²

Only the effect of the vote has constitutional significance.³ Collectively, an election does not really have any evaluative significance at all. Evaluative rationales may be imputed to the electorate post facto in accord with various narratives explaining the outcome. But these explanations are not simply the equivalent of the voters’ aggregated reasons for choosing a candidate. Those reasons are not easily aggregated, often not articulated, and sometimes completely unknowable.

So, if the only constitutional significance of a vote is in its effect, not in its cause, then it follows that, for the relevant constitutional purposes, the VP is elected.

But even if the VP is elected in a technical sense, does the VP’s election really carry the same democratic legitimacy as the election of a single named candidate the President? Perhaps not.

To be continued….

1. Alternatively, perhaps the VP’s name on the ballot serves as a kind of acknowledgment of the “terms” of the social contract: “We hereby accept the risk that this person may become President in an emergency, and the Founding Fathers™ shall not be liable for any defects….” [↩]
2. The outcome of an election does not entail that the voters have collectively passed judgment with any kind of distinct logical significance. If Obama wins, for example, it does not necessarily mean that America will have chosen hope over experience. Voting for someone does not even necessarily entail that you want that person to win the election. You might choose randomly, or without any thought of the consequences. In fact, you can probably think of an actual President of the United States about whom it must have been true that Americans simply did not connect the act of voting for the candidate with the consequence of that candidate become President. [↩]
3. Voting is also meaningful in its realization of constitutional or democratic process. But because that’s true of all voters, it does not attach any particular significance to the winner of an election. [↩]

Questions about the qualifications for the Vice Presidency have been much debated in recent weeks since John McCain enlisted Sarah Palin as his running mate.

Of course, the debate is about qualifications in a political sense, not a constitutional sense.¹ The electorate wants to know that office-seekers will effectively perform their duties if elected.

So what are the duties of the Vice President? As Gov. Palin herself asked not long before joining the GOP ticket, what exactly is it that the VP is supposed to do?

The answer is, famously: not much.

John Adams, the first VP, called it “the most insignificant office ever the invention of man contrived or his imagination conceived.” And John Nance Garner (FDR’s first VP) said the office was “not worth a warm bucket of piss.”

The paucity of the VP’s duties, coupled with the opportunity for mischief stemming from his indefinite but considerable symbolic authority as the backup-President, has led some to suggest that we abolish the office entirely.²

VP: Bucket of Piss, or Just Number Two?

The office of the VP does serve two important, though auxiliary, constitutional purposes: it provides for the stability of presidential succession and delivers the tie-breaking vote in the Senate.

First, the VP is the pre-designated substitute-President—”in case of death, inaugurate,” as Matthew Yglesias suggests.³ And while another position might easily fill that role, there are significant advantages to having an understudy officer elected specifically to be the President’s replacement in an emergency. A VP-less scheme of succession that ran straight to the cabinet⁴ would have at least two significant drawbacks: (1) the second-string President, a cabinet appointee, would not have been elected and would not, therefore, retain the measure of democratic legitimacy which the VP could fairly claim by virtue of having received the voters’ approval in a national election; and (2) confirmation to the top cabinet post would likely become hopelessly over-burdened by politics and distorted by policy matters far outside the ambit of competencies relevant to the post in question. Besides showing her chops in international diplomacy, a Secretary of State would have to prove her bread-basket bona fides.

Second, it is important that the Senate have a tie-breaker who is not a member of the Senate.⁵ Remember that the Senate is the key to the “Great Compromise” between the large states and the small states. Every state, great or small, has equal weight in the Senate. Given that a tie-breaker may be necessary, it is essential that the vote come from outside the Congress—from a national-level position, not a representative of any state—so as not to allow one state to exert more than its share of influence.⁶ And because both the President and Chief Justice⁷ would present separation-of-powers discomfort,⁸ the Vice President is uniquely well-positioned for the task.

So I think I’d vote to keep the VP. Remarkably, whether for or against, the arguments today are exactly the same arguments adduced in 1787. In Federalist No. 68, Hamilton wrote:

The appointment of an extraordinary person, as Vice-President, has been objected to as superfluous, if not mischievous. It has been alleged, that it would have been preferable to have authorized the Senate to elect [its president] out of their own body…. But two considerations seem to justify the ideas of the convention in this respect. One is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the President [of the Senate] should have only a casting vote [i.e., in case of tie]. And to take the senator of any State from his seat as senator, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came, a constant for a contingent vote. The other consideration is, that as the Vice-President may occasionally become a substitute for the President [of the United States], in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not equal force to the other.

And there you have it.

1. I will discuss the constitutional quals for both the President and Vice President in later posts. [↩]
2. See Yglesias, http://yglesias.thinkprogress.org/archives/2008/08/the_real_veepstakes.php. [↩]
3. Yglesias, supra. [↩]
4. Incidentally, as it stands, the succession statute may well be unconstitutional. First and second in line are the Speaker of the House and the President pro tem of the Senate. But legislators are not “officers” of the United States under the Constitution. I’ll save the evidence for a later post. [↩]
5. The VP is the “President of the Senate,” but not a voting member. [↩]
6. Of course, the democratic fairness of this distribution of influence in the legislature is disputable, to put it mildly. My point is only valid if one has accepted the Great Compromise. We might not want to do that. [↩]
7. The Chief Justice is the only member of the federal judiciary whose office is named in the Constitution. Theoretically, the Supreme Court could be “unpacked” down to one member. [↩]
8. The President already wields the veto power, and the neutrality of the Supreme Court might be compromised by involvement in the legislative process. [↩]

On Monday, September 17, 1787, the delegates to the Federal Convention in Philadelphia gathered for their last order of business.  Benjamin Franklin made a motion that the Constitution be signed by all the delegates, pleading for a show of unity.¹

Before Franklin’s motion came to a vote, Nathaniel Gorham of Massachusetts introduced a last-minute motion to change the threshold number of legislators per capita in the House of Representatives—from a maximum of one rep for every 40,000, to one for every 30,000.

Then, in what must have been a dramatic moment, George Washington—who had presided over nearly four months of debate without addressing a single word to the Convention for or against any position on any matter—rose to address Mr. Gorham’s motion.

One might have expected the General to bristle at this eleventh-hour suggestion and to sternly refuse any further alteration of the document, which was already drawn and ready for signatures.  But instead Washington lent his immeasurably credible support to the motion, saying that it was of paramount importance to secure the rights and interests of the people.  By increasing the number of legislators per capita—i.e., increasing the size of Congress—the government would be made more accountable to the people.  The motion passed unanimously.²

You can see the smudge where the word 'forty' was altered to 'thirty' in Article I, section 2.

This is the first post in a blog dedicated to the history and meaning of the Constitution. The story I’ve told illustrates one of my themes: that the legacy of our Constitution is at once profoundly pragmatic and dramatically progressive.

It is often assumed that to interpret the Constitution according to what we may know of its original meaning would be to yield constitutional law to a deeply conservative ideology. I believe this assumption is faulty. The text, history, and theory of the Constitution establish an ideologically neutral foundation for government that is manifestly consistent with a progressive vision of the law—that is, a vision of law that is deferential to legislative efforts to protect individual rights and liberties and to promote community interests and welfare.

This constitutional vision is profoundly pragmatic in that it is not shackled to any rigid conception of federalism which would persist in metaphysical reverence for the “sovereignty” of the states or of the nation they comprise. No ideology will be permitted to stand athwart the fundamental (but evolving and often unknowable) values that drive our collective (but disjointed) efforts to define and redefine the meanings and purposes of our own time on Earth.

The purpose of this blog, as perhaps hinted by its titular allusion, will be to re-evaluate and reframe our constitution in light of our national experience and ever-shifting historical circumstances, as if in preparation for our own impending vote on ratification.

So imagine, if you will, that we are delegates to a constitutional re-convention. Where do we stand? And what constitution should we adopt?

1. See Madison’s journal from the convention at http://www.yale.edu/lawweb/avalon/debates/917.htm. [↩]
2. Incidentally, if the House of Representatives were increased to its maximum constitutional size, it would contain over 10,000 members. Currently, we have about one representative per 690,000 citizens. [↩]