We have a Vice President again, and Mr. Ford deserves all our sympathy. He enters into a job of spectacular and, I believe, incurable frustration. He, like his predecessors, will receive those soothing presidential assurances that he, unlike his predecessors, will be given tasks of substance and responsibility. One can be absolutely certain that these shining prospects will disappear whenever he reaches out to grasp them. Mr. Nixon, even in his present feeble shape, will no more yield power to Mr. Ford than he yielded power to Mr. Agnew or than President Eisenhower yielded power to him ("What major decisions of your Administration has the Vice President participated in?" "If you give me a week, I might think of one"—Dwight D. Eisenhower, August 24, 1960) or than any President has ever yielded power to his Vice President.
It is a doomed office. No President and Vice President have trusted each other since Jackson and Van Buren. Mistrust is inherent in the relationship. The Vice President has only one serious thing to do: that is, to wait around for the President to die. This is hardly the basis for cordial and enduring friendships. Presidents see Vice Presidents as death's-heads at the feast, intolerable reminders of their own mortality. Vice Presidents, when they are men of ambition, suffer, consciously or unconsciously, the obverse emotion. Elbridge Gerry spoke with concern in the Constitutional Convention of the "close intimacy that must subsist between the President & vice-president." Gouverneur Morris commented acidly, "The vice president then will be the first heir apparent that ever loved his father."
At the Constitutional Convention, Roger Sherman noted that if the Vice President did not preside over the Senate, "he would be without employment." Sherman's observation was prophetic, except that the Vice President's constitutional employment is a farce. Mr. Agnew as Vice President, for example, never went near the Senate if he could help it. Early Vice Presidents of a philosophical bent filled their days by writing attacks on the power of the national government. Jefferson wrote the Kentucky Resolution as Vice President, Calhoun the South Carolina Exposition. Their successors have lacked a taste for political philosophy. Richard M. Johnson ran a tavern as Vice President. Thomas R. Marshall and Alben Barkley made jokes. But most Vice Presidents, especially in recent times, have lacked a taste for humor too.
But cannot Presidents give the Vice President serious work to do? Until rather recently they thought themselves constitutionally forbidden to do so. Most Presidents and most Vice Presidents have believed with Truman (in 1955) that the Vice President "is not an officer of the executive branch" and with Eisenhower (in 1963) that the Vice President "is not legally a part of the Executive branch and is not subject to direction by the President."
The notion of having the Vice President at Cabinet meetings, for example, is relatively new. In 1896 Theodore Roosevelt wrote that it would be desirable "to increase the power of the Vice-President . . . . It would be very well if he were given a seat in the Cabinet." But, when he became President himself after a brief interlude as Vice President, he did not give his own Vice President, Charles W. Fairbanks, a seat in the Cabinet or anywhere else. Vice President Thomas R. Marshall presided at Cabinet meetings when Wilson was at Versailles. But, since he regarded himself as a "member of the legislative branch," he questioned the propriety of doing so and carefully explained to the Cabinet that he was acting "in obedience to a request" and "in an unofficial and informal way." Harding was the first President to make his Vice President, Calvin Coolidge, a regular at Cabinet meetings. Coolidge expected his own Vice President to follow this example; but Charles G. Dawes rejected any such entanglement with the executive as a "wrong principle" and in due course supported from his office on Capitol Hill farm legislation that his President opposed and eventually vetoed. Franklin D. Roosevelt, who from the time of his own vice presidential candidacy in 1920 had cherished the hope of making something of the office, re-established the idea of attendance at Cabinet meetings, and it became routine thereafter. Truman got Congress in 1949 to make the Vice President a member of the National Security Council by statute. But Vice Presidents continued to operate out of an office at the Hill. It was not till Kennedy became President that a Vice President was given space in the Executive Office Building.
Nor, despite ritualistic pledges at the start of each new term, have Presidents ever given real power to Vice Presidents. FDR did make Henry Wallace head of the Board of Economic Warfare—the only big job handed a Vice President in the 185 years of the American presidency—but this merely proved the embarrassment bound to arise when an agency chief who happened to be Vice President got into fights with powerful members of the President's Cabinet. Mr. Nixon as Vice President appointed himself the campaign hit man of the Eisenhower Administration and subsequently as President assigned the same delicate responsibility to Mr. Agnew, thereby making him, as Eugene McCarthy wittily said, "Nixon's Nixon." Mr. Nixon is evidently trying to stuff Mr. Ford into that slot today. This is hardly a promising development. If there is anything certain to ruin the vice presidency forever, it is the theory that the Vice President is the mandatory instrument for an administration's partisan rancor.
For the rest, the vice presidency is makework. Presidents spend time that might be put to far better use trying to figure out ways of keeping their Vice Presidents busy and especially of getting them out of town. The vice presidency remains, as John N. Garner said, "a spare tire on the automobile of government." As Gertrude Stein said of Oakland, California, there is no there there.
But what of Theodore Roosevelt's suggestion that the power of the Vice President might be increased? Carl Kaysen, director of the Institute for Advanced Study, has made the ingenious proposal that the presidential nominee promise the convention that he will appoint his Vice President to one of the four great Cabinet offices, State, Treasury, Defense, or Justice, and specify the particular one. This would provide a there there. But it would create problems if the Vice President turned out to disagree with the policy or to fail at the job and, unlike other dissidents or incompetents, could not be easily dismissed. Also this would have to be an informal, and hence unstable, arrangement; for any formal allocation of power to the Vice President would violate the clause in the Constitution vesting "the executive power" in the President.
Ben Cohen, that wise old New Dealer, has a different approach. He would frankly recognize that there is no there there and have presidential and vice presidential candidates separately voted upon in the general election. This would have meant in 1968, for example, that Nixon would have been elected President and Muskie Vice President. The fact that Muskie could not have taken part in a Nixon Administration would have made no difference, since the Vice President has nothing to do anyway; and Muskie would have been an infinitely more attractive heir apparent. But this proposal raises the possibility of a shift in party control of the White House without the intervention of a new election.
Neither of these ideas goes to the heart of the matter. Nor certainly do the flurry of reform proposals generated by the Agnew and Eagleton fiascoes. In 1973 the Democrats appointed a Vice Presidential Selection Committee under the chairmanship of Hubert Humphrey, whose own vice presidential wounds had hardly healed. Its recommendation was that the parties slow up the process of nominating the second man by prolonging the convention and even offering the presidential nominee the option of turning the choice over to a later meeting of the party's National Committee. This procedure, it need hardly be said, would not have saved the Republicans from twice anointing the late Spiro T. Agnew. Senator Robert Griffin of Michigan, the Republican whip, in what he calls, presumably as a recommendation, "a small step in the direction of the parliamentary system," would do away altogether with party participation in the nomination and have the new President submit his choice to Congress in the manner Mr. Nixon chose Mr. Ford under the Twenty-fifth Amendment. This would be another formula for Agnews.
Fiddling with the way vice presidential nominees are chosen is totally beside the point. The real question is why have a Vice President at all? "His importance," as Woodrow Wilson said, "consists in the fact that he may cease to be Vice-President." The only conceivable argument for the office is that it provides an automatic solution to the problem of succession. No doubt it does, but does it provide the best solution?
It is said in political science departments that the vice presidency justifies itself as a "learning" office where men train themselves for the great responsibility that may one day be theirs. Even if the Vice President has nothing to do, at least—we are assured—he can watch what others are doing and prepare himself to take over if calamity strikes. This implies, I fear, an unduly romantic view of Presidents.
Presidents, whatever they may say, do not choose their running mates because they want to train them as successors. All Presidents see themselves, if not as immortal, as good for two terms at least. They pick a running mate not because he is the second citizen of the republic and fully qualified for the presidency but because of intricate and generally mistaken calculations about the contribution he will make to victory at the polls. "Whether they should or not," Congressman James G. O'Hara, Democrat of Michigan, has well said, "they will not, in the final analysis, choose their Vice-Presidential candidate to succeed them. They will choose them to help them succeed." Such calculations, I say, are generally mistaken. It is an exceedingly rare case when the vice presidential candidate makes a difference. Very likely Johnson made a difference in 1960. But much more typical is the outcome in 1948. Earl Warren was the most Popular governor California had had in a generation, but Truman carried California against the DeeyWarren ticket. The "balanced ticket" is in any case a fraud on the public. It pretends that the Vice President's views "balance" the views of the President when all our history testifies that they have no impact at all on the President.
Moreover, the way Presidents treat their Vice Presidents steadily erodes their capacity to succeed to the presidency. A Vice President will learn only as much as a President is willing to have him learn—which, given presidential dislike of Vice Presidents, is not ordinarily very much. Truman, recalling how little he had been told as Vice President, tried harder than most Presidents to clue in his second man. His conclusion about the learning process was not encouraging. "No Vice-President," he wrote three years after he left the White House, "is ever properly prepared to take over the presidency because of the nature of our presidential, or executive, office." In the nature of things, "it is very difficult for a President to take the Vice-President completely into his confidence." The President "by necessity" builds his own staff and makes his own decisions, "and the Vice-President remains an outsider."
Moreover, seeing things as an ill-informed, impotent, and often sullen outsider, the Vice President will very likely "learn" the wrong things. Lyndon Johnson thought Kennedy too cautious at the time of the Cuban missile crisis and in Vietnam. What Johnson "learned" as Vice President led him on to policies of overkill in the Dominican Republic and Indochina. In any case, where does a successor's responsibility lie? "A Vice-President might make a poor President," said Thomas R. Marshall, who was Wilson's Vice President and had to reflect on this question in Wilson's season of disability, "but he would make a much poorer one if he attempted to subordinate his own mind and views to carry out the ideas of a dead man."
A learning office? With Presidents less generous than Truman—and that in this context is most Presidents, however generous they may be in other relationships—the vice presidency is much less a making than a maiming experience. McKinley, wrote Theodore Roosevelt as Vice President, "does not intend that I shall have any influence of any kind, sort or description in the administration from the top to the bottom. This he has made evident again and again." Fortunately for T.R., he had to endure only six months of frustration. When he acquired a Vice President of his own, he could not have been more destructive of poor Chancy Fairbanks. He used to regale Washington with Finley Peter Dunne's crack after the President told him he was thinking of going down in a submarine: "You really shouldn't do it—unless you take Fairbanks with you." Tom Marshall, who at least extracted a good deal of shrewd humor out of his predicament, concluded that the Vice President "is like a man in a cataleptic state: he cannot speak; he cannot move; he suffers no pain; and yet he is perfectly conscious of everything that is going on about him."
In recent years, as men of larger aspirations and capacities have responded to the actuarial attractions of the office, the damage to Vice Presidents has increased. The more gifted and ambitious the Vice President, the more acute his frustration—and the less his President is inclined to do to alleviate it. Everyone knows the humiliation that Eisenhower repeatedly visited on Nixon. Only a man who has the overpowering ego of a Lyndon Johnson and is treated by his President, as Johnson was, with relative consideration can survive the vice presidency; and even Johnson was a subdued and shrunken man by 1963. "It's like being naked in the middle of a blizzard with no one to even offer you a match to keep you warm—that's the vice presidency," said Hubert Humphrey in 1969, eight months after he had been released from confinement. "You are trapped, vulnerable and alone, and it does not matter who happens to be President."
There is no escape, it seems to me, from the conclusion that the vice presidency is not only a meaningless but a hopeless office. Truman said, and many have repeated, that "there is no officer in our system of government besides the President and Vice President who has been elected by all the voters of the country," as if this somehow sanctified the vice presidency. Truman's proposition, advanced nine weeks after Roosevelt's death, was natural enough to a man interested in legitimating his own recent succession to the presidency. But it is an amiable myth. No one votes for a Vice President. He is a tie-in sale, an inseparable part of a package, "a sort of appendage to the Presidency" (Truman's own phrase), not an independent choice. And, once carried to the vice presidency as second rider on the presidential horse, where is he? If he is a first-rate man, his abilities will be wasted, turn sour, and deteriorate. If he is not first-rate, he should not be in a position to inherit the presidency. Why not therefore abolish the vice presidency and work out a more sensible mode of succession?
Such a revision of the Constitution would not be a serious affront to the Founding Fathers. They had no great belief in the vice presidency. Though they had had considerable experience with governors and lieutenant governors in the colonies, and though ten states maintained this system after independence, the Constitutional Convention did not turn automatically to the vice presidential idea. It slipped in as an afterthought. The August 6 draft of the Committee of Detail had proposed that, in case of a vacancy in the presidency, "the President of the Senate shall exercise those powers and duties, until, another President of the United States be chosen" (my emphasis). Gouverneur Morris objected that this gave too much power to the legislative branch but then curiously proposed the Chief Justice as the provisional successor. Madison for a moment suggested that executive power during a vacancy be administered by a Council of State. All these proposals were regarded as interim schemes to tide things over until the voters could choose a new President. Then a fortnight before adjournment a new drafting committee invented the vice presidency over a weekend and submitted the idea to the Convention. There was no great enthusiasm. Elbridge Gerry said he was "against having any vice President." He was the only member of the Convention who ever became Vice President. Edmund Randolph was opposed. But no one could think of anything better, and the clause went into the Constitution. Hamilton later noted in the 68th Federalist that the office "has been objected to as superfluous, if not mischievous" but defended it in perfunctory fashion because the Vice President's tie-breaking vote could prevent deadlocks n the Senate and because the Vice President hinisdt would provide a "constitutional substitute" for the President. There was even a dispute in the First Congress as to whether the Vice President should receive an annual salary.
The vice presidency was put into the Constitution for one reason, and one reason alone. Hugh Williamson of North Carolina, a member of the committee that originated the idea, conceded at the Convention that "such an office as vice-president was not wanted. It was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time." This is an essential but neglected point. The theory of presidential elections embodied in the Constitution was that if electors had to vote for two men without designating which was to be President and which Vice President, and if one of these men had, as the Constitution required, to be from another state, then both men who topped the poll would be of the highest quality, and the republic would be safe in the hands of either.
This ingenious scheme did produce Adams and Jefferson as the first two Vice Presidents. But the rise of the party system, a development unanticipated by the Founding Fathers, quickly put the "valuable mode of election" under severe strain. As early as 1796 the Federalists gave their second ballots to Thomas Pinckney, who was manifestly not the second citizen of the country. Adams himself, the top Federalist candidate, would have preferred, if defeated, to lose to Jefferson rather than to his fellow Federalist. In 1800 the Republicans gave the same number of electoral votes to Jefferson, their presidential choice, as they gave to Aaron Burr, a man of undoubted talents who, however, was trusted by no one in the long course of American history, except his daughter Theodosia and Gore Vidal. Burr was nearly chosen President, though the voters never intended him for the presidency. The fear of comparable slipups in 1804 led to the adoption of the Twelfth Amendment requiring the electoral college to vote separately for President and Vice President.
The abolition of the "valuable mode of election" canceled the purpose of the Founding Fathers in having a Vice President at all. Separate voting ended any prospect that the Vice President would be the second man in the country. The office could no longer be counted on to attract men of the highest quality. It would become, as was immediately noted, a bargaining counter in the presidential contest—"a bait to catch state gudgeons," in Gouverneur Morris' contemptuous phrase. Samuel White, a senator from Delaware, summed up with admirable prescience the consequences of the Twelfth Amendment: "Character, talents; virtue, and merits will not be sought after in the candidate. The question will not be asked, is he Capable? Is he honest? But can he by his name, by his connections, by his wealth, by his local situation, by his influence, or his intrigues, best promote the election of a President?" Roger Griswold of Connecticut said that the vice presidency would thereafter be "useless, worse than useless." A number of political leaders, Republicans and Federalists—John Randolph of Roanoke, former Speaker of the House, now Senator; Jonathan Dayton; Mathew Griswold; Samuel W. Dana—drew the logical conclusion. The vice presidency was an organic part of a particular mode of election, and that mode of election had now been constitutionally abolished; therefore let us abolish the vice presidency too. Unfortunately for the republic this effort failed.
But the dismal predictions were correct. The Twelfth Amendment sent the vice presidency into prompt decline. The first two Vice Presidents had moved on directly to the presidency. After the amendment was enacted, the vice presidency became a resting place for mediocrities. Who can remember Burr's successors-George Clinton, Elbridge Gerry, Daniel D. Tompkins? For a generation the office of Secretary of State became the stepping-stone to the presidency; thereafter Presidents were elected from anywhere except the vice presidency. In the 170 years since the Twelfth Amendment only one Vice President—Martin Van Buren—has advanced directly to the presidency by election. More than half our Vice Presidents in the nineteenth century were actually older than their Presidents. William R. King, when selected as Vice President with Franklin Pierce, was known to have an incurable disease and died six weeks after inauguration. Nor was King the only Vice President to die in office. Apart from their families, few cared or even noticed. The vice presidency was nothing. "It is not a stepping. stone to anything except oblivion," said Theodore Roosevelt when Boss Platt conned him into accepting the vice presidential nomination in 1900. "I fear my bolt is shot." For thirty-eight years—almost a quarter of the time that has passed since the ratification of the Twelfth Amendment—the republic has been without any Vice President at all. No catastrophe has resulted.
T.R. described the vice presidency as "an utterly anomalous office (one which I think ought to be abolished)." He was plainly right. But what would the alternative mode of succession be? Here it would seem appropriate to return to the principle of the Founding Fathers. That principle was accurately stated by the constitutional historian Lucius Wilmerding, Jr., in a letter to Walter Lippmann in 1946: "A man who has not been voted on for the Presidency [as, of course, Vice Presidents were till the ratification of the Twelfth Amendment] ought not to hold the office for longer than it takes to choose a new President."
The Constitutional Convention, having agreed on the idea of a vice presidency, decided to empower Congress to designate the next in line of succession in the event that the elected President and Vice President were no longer available. The first proposal was that the successor designated by Congress should act as President "until the time of electing a President shall arrive." Madison promptly observed that "this, as worded, would prevent a supply of the vacancy by an intermediate election of the President" and offered the language now in the Constitution that the designated officer "shall then act as President . . . until the Disability be removed, or a President shall be elected" (my emphasis). The new wording was plainly intended to authorize special presidential elections in the event of a double vacancy—a double vacancy because, according to the original theory of the electoral process, the Vice President had also been voted on for the presidency.
Madison's idea of an "intermediate election" was quickly enacted into law. In 1792 the Second Congress, containing men who had served in the Constitutional Convention five years before and were therefore well versed in the intentions of the Founding Fathers, passed the first Presidential Succession Act. This act provided that, in the case of a double vacancy, the president pro tempore of the Senate would become Acting President "until a President be elected" and that a special election would be called to elect a new President unless the vacancy occurred in the last months of the presidential term.
Then came the Twelfth Amendment and the decline in vice presidential quality. By retaining the vice presidency, as Wilmerding pointed out in a trenchant piece in this magazine in May, 1947, the amendment achieved precisely what it was designed to prevent—that is, it made it possible for persons who had not been voted on for the presidency to become President. After 1804 Vice Presidents were not men chosen by the electors for the presidency except in a highly metaphysical sense. But the retention of the office and the ambiguity of the Constitution enabled Vice Presidents to make themselves President.
The Founding Fathers, so far as we can tell, assumed that if a President died, the Vice President would inherit the powers and duties of the President but not the office itself; he would only be Acting President. The constitutional language was a cryptic condensation by the drafting committee of two resolutions adopted by the Convention. One had said, "The Vice President shall exercise those powers and duties [of the President] until another be chosen or until the inability of the President be removed" (my emphasis). The other spoke of the authority of the Vice President to "perform the duties of the office of the President"; it did not say that he would hold that office. The Constitution, in a rare lapse from precision, now said that, if the President could not "discharge the Powers and Duties" of his office, "the same shall devolve on the Vice President." Did "same" mean powers and duties or the office as well? B. S. Corwin, the great constitutional scholar, judged it "clearly the expectation of the Framers that [if there were a vacancy in the presidency] the Vice-President should remain Vice-President, a stopgap, a locum tenens, whatever the occasion of his succession, and should become President only if and when he was elected as such." The Twelfth Amendment said specifically that if a presidential choice went to the House and could not be completed before inauguration day, "the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President" (my emphasis). This reaffirmed the assumption that a Vice President could only become Acting President.
Then, in 1841, William Henry Harrison died a month after his inauguration. Now there was brought to test, as John Quincy Adams noted, "that provision of the Constitution which places in the Executive chair a man never thought of for that place by anybody." Vice President John Tyler in effect staged a constitutional coup by successfully insisting—"in direct violation," Adams said, "both of the grammar and context of the Constitution"—that, when a Vice President took over the powers and duties of the presidential office, he took over the office too and became not Acting President but President in his own right—a view that finally received constitutional blessing in the Twenty-fifth Amendment.
The United States lived under the Succession Act of 1792 for ninety-four years. Since a double vacancy never occurred, however, the intermediate election feature, evidently intended by the Founding Fathers as a routine part of the process, never came into play. In 1881 the shooting and lingering death of Garfield renewed public interest in the problem of succession. Four years later, with the Republicans in control of the Senate, Grover Cleveland's Vice President died in the first year of the administration. This meant under the 1792 law that the Republican president pro tempore of the Senate would take over if anything happened to Cleveland. There had also been occasions when the country had been not only without a Vice President but without a President pro tern of the Senate and a Speaker of the House as well; in which case, had anything happened to the President, the presidency would have been in limbo.
The cry for reform produced the Presidential Succession Act of 1886. The new law put the line of descent through the Cabinet, thereby making succession automatic and preventing the mechanics of succession from transferring the presidency from one party to the other without an election. The 1886 law did not, however, eliminate the idea of intermediate elections. It provided that the Cabinet successor should "act as President until the disability of the President or Vice-President is removed, or a President shall be elected" (my emphasis). It was "the powers and duties of the office of President," and apparently not the office itself, that devolved upon the Cabinet successor, and "it shall be the duty of the person upon whom said powers and duties shall devolve" to convene Congress within twenty days, presumably in order to provide for a special election.
The republic operated under this law for another sixty years. Again no occasion arose to call the provision for intermediate elections into play. Then in 1945 Harry S. Truman, abruptly translated to the presidency, faced the prospect of serving the balance of Roosevelt's term—nearly four years without a Vice President. The law of 1886 put the Secretary of State next in line. But Truman thought it undemocratic for a President to have the power to name his successor—a scruple discarded by Congress twenty-six years later when it acquiesced in Mr. Nixon's interpretation of the Twenty-fifth Amendment as making a Vice President chosen in case of a vacancy not a choice shared with Congress but a presidential appointment subject to congressional confirmation. This ill-considered amendment contains further prizes. If Mr. Nixon should be removed, then Mr. Ford, who was not elected by the people to the office, would appoint his own successor. "For the first time in the history of this great Nation," Senator Pastore has observed with pardonable senatorial grandiloquence, "the President and Vice President will both be appointed—not elected by the people. . . the Nation will no longer be democratically governed."
Truman thought that the Vice President should always be what he called an "elective officer." So he proposed a reversion to the principle of the Succession Act of 1792, though with the Speaker of the House first in the batting order and the president pro tern of the Senate second. There were objections to this scheme. The Speaker of the House, for example, does not even have to be a member of the House and therefore may not be an elective officer. If he is, his speakership is partly the result of seniority, which means long tenure in a safe and therefore unrepresentative district. James F. Byrnes and George C. Marshall, Truman's second and third Secretaries of State, were far more national figures and far better equipped for the presidency than Joseph Martin of Massachusetts, who, as Speaker of the House, was heir apparent under the Truman reform when it was enacted two years later.
Truman, however, saw this succession scheme as provisional. Reaffirming the conviction of the Founding Fathers, he said, "No matter who succeeds to the Presidency after the death of the elected President and Vice President, it is my opinion he should not serve longer than until the next congressional election or until a special election is called . . . to fill the unexpired term of the deceased President." As Walter Lippmann put it in 1946, the Founding Fathers "thought the country should never for more than a few months have a president who had not been elected. They did not believe, as we now assume, that there could never be a Presidential election except once every four years." If the country was without an elected President, it should proceed as expeditiously as possible to elect a new one. There was nothing sacrosanct about the four-year election system.
Truman's proposal that the intermediate election fill the unexpired term has latterly given some trouble to constitutional scholars who read the language on the presidency in Article II, Section 1, of the Constitution—"He shall hold his Office during the Term of four Years"—as guaranteeing every new President four years in the White House. The Succession Acts of 1792 and 1886, both providing for intermediate elections, were both mute on how long intermediately elected Presidents were to serve. But it is far from self-evident that the Constitution forbids elections to fill unexpired terms. We have such elections every day for senators and representatives, though they, no less than Presidents, serve for terms specified in the Constitution. The House Judiciary Committee, under the chairmanship of that rugged old Texan strict constructionist Hatton W. Sumners, went into this question at length in 1945 and saw no constitutional problem in the case of the presidency.
The Constitution, the House Judiciary Committee said, "does not provide that the term of each incumbent shall be 4 years, but that the President shall hold his office 'during the term of 4 years.' This language appears to have reference to a fixed quadrennial term, permitting the filling of an unexpired portion thereof by elections. The tradition of special elections for unexpired terms of other officers also supports the provision." "During" often means "in the time of"; it does not necessarily mean "throughout the entire course of." Had the Constitution said "for a Term of four years," this would assure a four-year term to every new President. But the Constitution does not say this.
And if John Tyler was correct in saying that a Vice President became President, not just Acting President, and if it is correct to construe the Constitution as assuring every President a four-year term, then this reading must surely apply to Presidents who gain the office by inheritance quite as much as to those who gain it by election. This would mean that when a President dies, the Vice President who succeeds him is entitled to a four-year term of his own. Ben Butler made this point during the impeachment trial of Andrew Johnson. "Whose presidential term is the respondent now serving out?" he asked. "His own or Mr. Lincoln's? If his own, he is entitled to four years up to the anniversary of the murder, because each presidential term is four years by the Constitution." But no one has argued, not even John Tyler, that a Vice President has any right to do more than serve out his President's unexpired term. Why, if there is no Vice President, should a specially elected "constitutional substitute" be in a different legal position?
The House unfortunately deleted the provision for special elections before passing the bill in 1945, and the Senate took no action. In 1947 Congress fell under Republican control. The Republican leadership, seizing its opportunity, decided to make Joe Martin Truman's absolute and not provisional successor and confirmed the deletion of intermediate elections from the bill. The law as finally enacted therefore departed from Truman's original purpose, though he signed it in order to shift the line of succession back to elective officers.
The deletion of intermediate elections was a bad mistake. It is not beyond repair. The thing to do is to adopt a constitutional amendment abolishing the vice presidency, an office that has become both more superfluous and more mischievous than Hamilton could have imagined when he wrote the 68th Federalist, and provide for the succession in the spirit of Founding Fathers through a congressional statute restoring the principle of special elections. This principle, announced by Madison in the Constitutional Convention, authorized by the Constitution, applied by the Second Congress in 1792 to the prospect of a double vacancy, reaffirmed in this context by the Forty-eighth Congress in 1886, reaffirmed again by Truman in 1945 (and actually again by Eisenhower in 1965), would, if the vice presidency were abolished, work fully as well for a single vacancy. More than this: it would repair the fatal error of the Twelfth Amendment and make it certain that the republic would never have to suffer, except for a limited period, a chief executive who, in the words of. J. Q. Adams, was never thought of for that office by anybody.
It may be objected that special elections in a time of national disarray—as, for example, a presidential assassination or a successful impeachment might only deepen popular confusions. This could happen. But the special election would necessarily be held after an interval, and it might equally help the country to resolve its confusions and recover its nerve. At the very least it would result in placing in the White House a man chosen by the people to be President.
It would take three or four months to hold a special election. In the meantime the show must go on. If the vice presidency were abolished, who would serve as Acting President?
One proposal is to make the Speaker of the House Acting President for thirty days while Congress chooses a President to fill out the remainder of the term. This proposal has the disadvantage, given the number of times in recent years that one party has controlled the legislative branch and the other the executive, of risking an unvoted change in party control of the White House and in the direction of government-a change that might itself be quickly reversed in the special election, thereby compounding the confusion in Washington. The confusion would be even greater in the event of temporary presidential disability, in which case the presidency might shuttle back and forth between the two parties in a period of a few months.
The argument is overriding, it seems to me, for keeping the Acting President within the executive branch for the few weeks before the people have a chance to speak. A convenient way would be simply to make the Secretary of State, if qualified, the first successor. If the Secretary of State is foreign born or under thirty-five or has some other disqualifying eccentricity, then the Secretary of the Treasury could be the automatic successor, and so on down the 1886-1947 line of succession. But this first succession would be momentary until an Acting President is selected to run things during the, say, ninety days to the special election. This Acting President, in order to assure continuity of policy until the people speak, should come from the Cabinet. Congress might select an Acting President from the Cabinet—a device that would preserve continuity, spread responsibility, afford a choice of sorts, and perhaps stimulate Presidents to choose better Cabinets. Or the Acting President might be selected by the Cabinet itself using the corporate authority already bestowed on it to some degree by the Twenty-fifth Amendment, which gives a majority of the Cabinet, plus the Vice President, power to declare the President non compos mentis. However chosen, the Acting President would be declared ineligible as a candidate in the special election, this in order to avoid the advantage created by the inevitable rush of sympathy to the new person in the White House.
Then, as soon as possible, let the people make their choice. If the President vanishes in his last year in office, it would be simpler to let the Acting President serve out the term and await the next regular election. If it be said that three or four months is not time enough to prepare an election, the answer is that this is only an election to fill out a term and thus does not require the elaborate preliminaries of the quadrennial orgy. Let the national committees, which have become increasingly representative bodies under the new party rules, canvass opinion and make the nominations. Short campaigns, federally financed, would be a blessing, infinitely appreciated by the electorate. Perhaps short intermediate elections might have a salutary impact on the quadrennial elections, which in recent years have stretched out to intolerable length.
In doing this, we would not be departing from the spirit of the Founding Fathers: quite the contrary. "We have only to operate the Constitution as the men who wrote it thought it should operate," Walter Lippmann wrote a quarter of a century ago on the question of intermediate elections. "If we are the prisoners of a rigid system to-day, the fault lies not in the Constitution but in our own habits which have only rather recently become so hard and so fixed."
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