State of the Union January/February 2009

The Founders’ Great Mistake

Who is responsible for the past eight years of dismal American governance? “George W. Bush” is a decent answer. But we should reserve some blame for the Founding Fathers, who created a presidential office that is ill-considered, vaguely defined, and ripe for abuse. Here’s how to fix what the Founders got wrong—before the next G. W. Bush enters the Oval Office.

The system that the Framers developed for electing the president was, unfortunately, as flawed as their design of the office itself. When Madison opened discussion on presidential election in Philadelphia, he opined that “the people at large” were the “fittest” electorate. But he immediately conceded that popular election would hurt the South, which had many slaves and few voters relative to the North. To get around this “difficulty,” he proposed using state electors. Electoral-vote strength was based on a state’s total population, not on its number of voters—and the South received representation for three-fifths of its slaves both in the House of Representatives and in the Electoral College.

Scholars still debate whether the Framers foresaw the prospect of a contested presidential election, followed by a peaceful shift of power. (Remember that, as Shakespeare pointed out in Richard II, kings left office feet first.) Some members of the founding generation believed that a duly elected president would simply be reelected until his death, at which point the vice president would take his place, much like the Prince of Wales ascending to the throne.

Perhaps as a result, the mechanics of presidential election laid out in the Constitution quickly showed themselves to be utterly unworkable. The text of Article II contained no provision for a presidential ticket—with one candidate for president and one for vice president. Instead, each elector was supposed to vote for any two presidential candidates; the candidate who received the largest majority of votes would be president; the runner-up would be vice president. In 1800, this ungainly system nearly brought the country to civil war. Thomas Jefferson and Aaron Burr ran as a team; their electors were expected to vote for both of them. Jefferson assumed that one or two would drop Burr’s name from the ballot. That would have given Jefferson the larger majority, with Burr winning the vice presidency. But due to a still-mysterious misunderstanding, all the electors voted for both candidates, producing a tie in the electoral vote and throwing the election to a House vote.

The ensuing drama lasted six days and 36 ballots before Hamilton threw Federalist support to Jefferson (as much as he despised Jefferson, he regarded Burr as “an embryo-Caesar”). This choice began the chain of events that led to Hamilton’s death at Burr’s hands three years later. More important, the imbroglio exposed the fragility of the election procedure.

In 1804, the Electoral College was “repaired” by the Twelfth Amendment; now the electors would vote for one candidate for president and another for vice president. This was the first patch on Article II, but far from the last—the procedures for presidential election and succession were changed by constitutional amendment in 1933, 1951, 1961, and 1967. None of this fine-tuning has been able to fix the system. In 1824, 1876, 1888, and 2000, the Electoral College produced winners who received fewer popular votes than the losers, and it came startlingly close to doing so again in 2004; in 1824, 1876, and 2000, it also produced prolonged uncertainty and the prospect of civil unrest—or the fact of it.

Even when the election system works passably, a president-elect must endure another indefensible feature of the succession process. In England, a new prime minister takes office the day after parliamentary elections; in France, a newly elected president is inaugurated within a week or two. But when Americans choose a new leader, the victor waits 11 weeks—nearly a quarter-year—to assume office. The presidential interregnum is a recurrent period of danger.

Originally, a new president didn’t take office until March 4. This long delay nearly destroyed the nation after the 1860 election. During the disastrous “secession winter,” Abraham Lincoln waited in Illinois while his feckless predecessor, James Buchanan, permitted secessionists to seize federal arsenals and forts. By March 1861, when Lincoln took office, the Civil War was nearly lost, though officially it had not even begun.

In 1932, Franklin Roosevelt crushed the incumbent, Herbert Hoover, but had to wait four months to take office. During that period, Hoover attempted to force the president-elect to abandon his proposals for economic reform. Roosevelt refused to commit himself, but the resulting uncertainty led the financial system to the brink of collapse.

The Twentieth Amendment, ratified in 1933, cut the interregnum nearly in half, but 11 weeks is still too long. After his defeat in 1992, President George H. W. Bush committed U.S. troops to a military mission in Somalia. The mission turned toxic, and Bill Clinton withdrew the troops the following year. Clinton was criticized for his military leadership, perhaps rightly—but the Constitution should not have permitted a repudiated president to commit his successor to an international conflict that neither the new president nor Congress had approved.

As the elder Bush did, an interregnum president retains the power of life or death over the nation. As Clinton did, an interregnum president may issue controversial or corrupt pardons. In either case, the voters have no means of holding their leader accountable.

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Garrett Epps is a professor of law at the University of Baltimore.

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