May 1947

I submit that all these amendments are wrongly conceived, and that if any one of them were to be adopted, the situation would be worse than it now is. For they are grounded on the idea that it is better to have a Throttlebottom as President, for what might be the whole of four years, than an Acting President designated by Congress to hold office only "until a President shall be elected" -- a constitutional expression which permits, if it does not require, a new election immediately after the death, resignation, or removal of the President.

Take the amendment proposed by Mr. Monroney and assume that both the President and First Vice President die. The second Vice President would then succeed, and what would this officer be? An exact replica of our present Vice Presidents. Elected in the same way to perform the same duties (he is to be President of the Senate, while the First Vice President is to be an executive assistant to the President) he would be, like them, a "secondary character."

I do not mean to suggest that there is no difficulty. I think that there is, and that it is much more immediate and much more serious than that with which Mr. Monroney is dealing. I mean the difficulty of the Vice-Presidential succession itself. After all, it will seldom happen that both a President and a Vice President will die before the expiration of their four-year term. Aedanus Burke of South Carolina in 1791 consulted a gentleman skilled in the doctrine of chances and was told that such a contingency would happen only once in 840 years.

Noting in his diary on April 4, 1841, the death of William Henry Harrison, precisely one month after his inauguration, John Quincy Adams, the old man eloquent, paused, looked out the window, saw that the day was in every sense gloomy, and wrote: "In upwards of half a century, this is the first instance of a Vice President's being called to act as President of the United States, and brings to the test that provision of the Constitution which places in the Executive chair a man never thought of for that office by anybody."

Six times since, the same provision has been brought to the test: Presidents Taylor, Lincoln, Garfield, McKinley, Harding, and Franklin D. Roosevelt have died in office and have been succeeded, respectively, by Vice Presidents Fillmore, Johnson, Arthur, Theodore Roosevelt, Coolidge, and Truman. Has the provision stood the test? The problem is not one of personalities but of principles. Its solution is implicit in its statement. John Quincy Adams was not asking a question; he was pointing a finger. If we admit that the Constitution, on the death of the chief executive magistrate, brings into the Presidency a person not contemplated by the people for that office, then we have our answer: the Constitution is defective in so far as it recognizes the possibility that the Presidency may be filled otherwise than by an election of the people.

But must we make the admission? John Randolph of Roanoke; though acknowledging in 1803 that the office of Vice President was unnecessary and ought to be abolished, thought not: the electors give their votes under the knowledge that in certain contingencies the person whom they select for Vice President will be the President; how then can it be pretended that the man not intended to be President may succeed to the office, when it is explicitly understood that he may and will succeed to it under certain contingencies?

The issue is clear: to resolve it we need only to understand what the office of Vice President is and how it is filled. The solution of our difficulty is to be found not in two Vice Presidents but in none.

The office of Vice President has no duties. True the Vice President is President of the Senate and, as such, performs duties analogous to those of the Speaker of the House. But the two offices are separate and distinct: "I am possessed," said John Adams, "of two separate powers; the one in esse and the other in posse. I am Vice President. In this I am nothing, but I may be everything. But I am President also of the Senate." The combination of offices has excited surprise. Roger Sherman explained it in the Federal Convention: "If the Vice President were not to be President of the Senate, he would be without employment."

An office without duties, no matter how great its prospects, is not an office to inspire or satisfy the expectations of an ambitious mind. John Adams declared it the most insignificant office that ever the invention of man contrived or his imagination conceived -- the only one in the world in which patience and firmness were useless. Jefferson found it the only office about which he was unable to decide whether he would rather have it or not have it -- honorable and easy, it would give him philosophical evenings in the winter and rural delights in the summer, but was that enough; Burr would gladly have resigned it had Jefferson been willing to employ him "in any active station." The catalogue could be continued -- through those who have declined the nomination when it was made to them and those who have refused to allow their names even to be placed in nomination. In 1900 Boss Quay and Boss Platt forced the nomination on an unwilling Roosevelt, thinking to destroy him forever politically.

Still, if the office is unimportant, the officer is not. As Senator White pointed out in continuation of the remarks which I have quoted at the head of this article, "the Vice President is not only the second officer of Government in point of rank but of importance, and should be a man possessing and worthy of the confidence of the nation." Why? Because, to repeat the remark of our first Vice President, he is nothing but he may be everything. And it is particularly to be noted that the Vice President succeeds for the residue of the term, which may be the full four years if the President should die between his election and the date set for his inauguration.

Here then is the problem: How to fill an office which no one but a Throttlebottom can want, with a man of the highest respectability, well known, and of established reputation throughout the United States? If the problem can be solved, well and good; if not, let us bid adieu to our Vice Presidents and make provision, as the Founding Fathers originally intended to make provision, for the temporary filling of the office of President in the event of a vacancy, and for the prompt holding of a new election. The machinery is extremely easy to devise.

IT has been thought extraordinary that the Constitution, as originally adopted, did not provide for a separate vote for the office of Vice President, and prescribed no qualifications for that officer. The explanation is simple. The Vice President was voted for as President and his qualifications were those of the President. That is the clue, seldom explained in our textbooks, to the whole system. As the Constitution then stood, each elector wrote the names of two persons on a ballot. The first was perhaps that of a local luminary, a favorite son of the district or state he represented; the second was that of a person not an inhabitant of the same state as himself -- presumably, therefore, a "continental character." Both of these names were of persons whom the elector and, we may be sure, his constituents considered qualified for the office of President. Either of them might be President, and the elector could not know which. No vote at all was cast for Vice President, but it was provided that "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."

The guiding principle of the system is plain. The man in whom the people reposed the highest trust was to be the President, and he in whom they placed their second confidence was to be the Vice President. Its convenience is also evident. This method selected two persons, both qualified to fill the Presidency. It solved the difficult problem posed by Benjamin Franklin when it was first decided that the Executive should be a single person: "The single head may be sick. Who is to conduct the public affairs in that case? When he dies, who are to conduct until a new election?" And it removed the need for a new election when the President died or resigned. Everything seemed settled by a mode of election designed, not to secure a competent President of the Senate, but (in Boudinot's phrase) "to obtain the second-best character in the Union to fill the place of the first, in case it should be vacated by any unforeseen accident."

On paper the plan seemed perfect. In practice, however, it was soon discovered that great inconvenience might arise from this mode of election, and that it might not carry into effect the will of the people as expressed through electors. The trouble was that the electors did not in fact cast two undistinguishing votes for President, but discriminated in their minds between the persons whom they wanted for President and Vice President, casting one vote for each. This introduced a totally new principle into the electoral system, the effect of which was to divide the contest. Instead of one election with two prizes, there tended to be two elections with separate prizes. The difference is substantial. The runner-up for the world heavyweight championship is a very different order of fighter from the world flyweight champion; the man who comes in second in an Olympic contest is not to be compared with the winner of the same event in a Class B track and field meet.

The attempt to choose the Vice President separately from the President destroyed the electoral system. For it made possible, in a particular circumstance, the election of a President and Vice President of opposite political parties. The case occurred in 1796 and was immediately seen to be an evil, at least by the majority party. It might have occurred again in 1804, and to prevent the repetition was the avowed purpose of the Twelfth Amendment, "the pivot on which the whole turned." The Constitution, it was said, could never have intended that a minor faction should, by any means, acquire the power of electing a Vice President, the possible successor to executive power; its purpose was that the election of the President and Vice President should be determined by a fair expression of the public will by a majority.

There was another difficulty too. Even if A was intended by a large majority of the people for President and B for Vice President, yet the votes might be so disposed, or chance might operate so contrary to intention, that the votes for B would exceed by a vote those for A. John Quincy Adams stated the case hypothetically in 1808. It had come within an ace of occurring in the Jefferson-Burr election of 1800.

The simplest remedy would have been to expunge the office of Vice President from the Constitution, and so reduce the election to a single contest for a single prize. The double vote for President would have been retained with all its advantages and none of its disadvantages. The succession question could have been controlled, under the Constitution, by a law passed specially for the purpose; such a law, the act of March 1, 1792, was indeed already on the books. However this may be, the remedy was not proposed.

Instead, the Twelfth Amendment, adopted in 1804, provided that each elector was to name in distinct ballots the persons voted for as President and Vice President. When the votes were counted, the person having the greatest number of votes for President was to be President and the person having the greatest number of votes for Vice President was to be Vice President. That -- somewhat simplified by the omission of some complicated provisions for throwing the election into the House or the Senate in the event that no candidate obtains a majority vote -- is the essence of the Twelfth Amendment.

HOW this amendment has worked out in the case of the Presidency -- whether it "invites ambition to an unchecked operation" and "exposes us to the selection of a less important and more unfit person" than the provision of the original Constitution -- I shall not attempt to decide. What I want to point out is that it has reduced the Vice President to what used to be called a "secondary character," a person of the second order of ability and reputation -- has made it altogether too likely that he will be a man who will "want some of the qualities necessary to command the respect of the nation, and possibly be marked with some of an opposite tendency." The reason is obvious. It was pointed out as early as l803 by Senator Plumer: "The Vice President . . . will no longer be voted for as President of the United States, but as President of the Senate -- he will be elected to preside over forms in this House. He will have less dignity, and be less respectable -- this will be the unavoidable consequence of the change. In electing a subordinate officer, men do not, they will not, seek for or require those qualifications which they deem requisite for supreme command."

I shall not labor the point. Everyone knows that a Vice President selected under the designating principle is not chosen in contemplation of his succession to the Presidency, but for the more immediate purposes of party advantage. Everyone has always known it. The members of the Federal Convention conceived that if, in elections, the President and Vice President were distinctly designated, "the Vice Presidency would be but as bait to catch state gudgeons."

In the debates on the Twelfth Amendment the same idea was frequently brought forward. The Vice Presidency would be hawked about at market and given in change for votes for the Presidency. The only criterion which would be regarded as a qualification for the office would be the temporary influence of the candidate over the electors of his state. A large state, having numerous electors and claiming the right to designate the President but not having votes enough of itself for that purpose, would carry the office of Vice President to another state and would say, Give us the President and we will give you the Vice President.

The candidate for President, his friends and favorites, would never promote the election to the Vice Presidency of a man of talents, probity, and national popularity, who might prove a rival. Instead they would seek a man of moderate talents, fit perhaps to preside with credit in the Senate, but whose ambitions were bounded by that office and whose influence would aid them in electing the President. Most pointed of all were the observations of Senator White: "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?"

Today we know that all these predictions have come true. The electors, -- or, to speak more correctly, the delegates to the party conventions, calculating on the durability of human life, are, in their choice of Vice President, influenced by considerations by which they ought not to be governed. One man is chosen to strengthen the ticket in a doubtful state (say, Hendricks in 1884); another to placate a minority which has been unsuccessful in the party convention (Arthur in 1880); a third to represent some "element" in the population -- for example, the loyal man in the border states (Johnson in 1864). I take my instances from the nineteenth century; they might readily be brought up to date.

Viewed in this light, it becomes apparent that the Twelfth Amendment has nullified the intention which led to the creation of the Vice Presidency. The declared object of the Twelfth Amendment was to prevent a man not intended to be President from being President. Well and good. But when the President dies, the officer whom it was intended to be defeated is promoted; the man whom the people never intended should be President, who received not one vote for that office, the Vice President, becomes President. Could anything be more ridiculous?

WHAT is to be done about "that provision of the Constitution which places in the Executive chair a man never thought of for that office"? It is idle to talk of restoring the original mode of election -- the mode which failed. It is, I am satisfied, equally idle to talk of increasing the Vice President's duties in the hope that his qualifications will increase proportionately; the suggestion was made in 1909 by Senator Beveridge and more recently In another form by Mr. Monroney.

Yet an easy remedy is at hand. Abolish the office -- wipe it clean out of the Constitution; provide by law -- no further constitutional amendment would be needed -- for a new election in the event of the President's death, resignation, or removal; and let Congress declare -- as it now declares in providing for the case of a double vacancy -- what officer shall act as President until a President be elected or, if the President's disability be merely temporary, until the disability be removed.

The arguments for abolishing the Vice Presidency have in the main been given; but it may be well to review and summarize them. To begin with, it is an unnecessary office. The Vice President, as such, has no duties. He is not needed as President of the Senate, for in any case the Senate would have a presiding officer -- just as it now has a President pro tempore when the Vice President is absent or is exercising the office of the President of the United States. The Senate itself derives no particular advantage from having its President, in a manner, thrust upon it; it was noticed at a very early period that although the Senate sat half its time without the Vice President, its business was as well done without as with him.

That the office is unnecessary is not, however, the only or even the principal reason for abolishing it. Its mere existence presents a danger. For the President may die and who will succeed him? Not, as was originally contemplated, the man who was honored by the second-largest number of votes of the people for the same office, and who of consequence would probably be worthy of the place and competent to its duties, but a man who, from the nature of the choice, is probably wholly unqualified to fill the office of President and in whom the people of the United States would have no confidence.

The idea of holding an election at other than the fixed periods is not so novel as it may appear. It is contemplated by the Constitution for the case in which both the offices of President and Vice President become vacant. The Vice President succeeds for the remainder of the President's term only because, in the original mode of appointing him, he was expected to be the man in whom the nation reposed its second confidence; in his case a new election could not be necessary.

To the members of the First and Second Congresses the idea was equally familiar. In the debate on the bill declaring what officer shall act as President in case of a double vacancy in the Executive office, it was pointed out that it was necessary to determine whether the person appointed to supply the vacancy should hold office during the time for which the President and Vice President had been elected or only until a new election could take place. The act of March 1, 1792, decided in favor of the shorter as against the longer time. This act remained on the statute books until 1886.

It is not generally known that even today the law contemplates at least the possibility of holding a special election. True, the Act of 1886, which now governs the question, specifically repealed the special election provided by the Act of 1792 and, as originally drafted, authorized the Secretary of State to act as President for the unexpired portion of the four-year term. But the bill was violently opposed on its passage: its language was changed so that the Acting President was to exercise the office only "until the disability be removed or a President shall be elected " -- the exact language of the Constitution, which, as we know from Madison, is intended to permit "a supply of the vacancy by an intermediate election of the President"; and an amendment was made requiring the Acting President to call Congress together in special session within twenty days of his succession. In the debates it was made perfectly clear that the object of these changes was to leave it to Congress whether or not to order a special election, as the circumstances of the occasion might suggest.

The desirability of holding a new election when the President dies or resigns will hardly be disputed. When John Randolph of Roanoke in 1803 declared that he would approve an abolition of the office of Vice President, he was careful to add that the sole condition on which he would consent to such an abolition would be an immediate reelection in case of a vacancy in the office of President. His position was solidly taken: if there were no Vice President, the succession would pass (under the law as it then stood) to the President pro tempore of the Senate, a person who could never have been contemplated on his election to that body as succeeding to the Presidency; it could not be right that such a person should exercise the powers of that office longer than was absolutely necessary to make a new election of the people.

Today we might make much the same argument with respect to a succession by the Secretary of State, for he, as everyone knows, is not an elected officer at all, but an appointed one. Indeed, we might go further and say that Randolph's line of thinking -- which was followed by Mr. Truman in 1945 when he sought to change the Presidential Succession Act -- applies a fortiori to a succession by the Vice President himself. For the Vice President, as we have seen above, is no longer voted on for President; he is elected, in Plumer's expression, to preside over the forms of the Senate, not over the affairs of the United States. Perhaps it is even improper to speak of him as being elected at all; for under our modern political methods he is not in fact elected independently of the President. One could not vote (through the medium of pledged electors) for Roosevelt without voting for Truman, or for Dewey without voting for Bricker. Like Siamese twins, the two candidates come together or not at all. We choose our President; our choice for Vice President is forced. In this point of view it might even seem proper for a Vice President, under our Constitution, to resign his office as of a certain date after his succession to the Presidency, and for Congress to provide by law for a new election.

One difficulty may be specially noticed. It has been objected that an intermediate election might destroy the regular timing of elections at which the President is chosen along with the whole of the House of Representatives and a third of the Senate. The Constitution requires the President to be elected for four years, so that if the timing were once upset it could not easily be restored. Allowing full weight to this counterargument, we must nevertheless consider it of little merit. If we are about amending the Constitution, any number of remedies could be devised. The election might be for the remainder of the term only, as was recommended by Mr. Truman in 1945 for the case of a double vacancy -- an arrangement which many consider to be constitutional now. The House of Representatives, voting per capita and not by States, might be authorized to choose a President to complete the term -- a mode of proceeding which would save the turmoil and delay of a popular election and afford an interesting experiment with a means of choosing a President advocated in the Federal Convention by Oliver Ellsworth.

But perhaps the simplest expedient of all, the one most in harmony with our existing Constitution, would be to provide that the new election -- for a full four-year term -- should take place in conjunction with the next Congressional election. The synchronism would be maintained, for the whole of the House and a third of the Senate change every two years, not every four; some Senators who expected to ride into office on the coattails of a President might be disappointed, but an equal number would be gratified; and the maximum term of an Acting President would be reduced from four years to two -- a very sensible advantage.

0NE question remains to be discussed. Who should be Acting President in case of an absolute vacancy in the Executive? The question has been much agitated. It was raised in the Federal Convention and much debated before the institution of a Vice Presidency reduced its urgency, and it has been much debated since in connection with the secondary succession -- the designation by Congress of an officer to act as President when both the offices of President and Vice President are vacant.

Various officers have been suggested as appropriate successors. In the Federal Convention, Hamilton and the Committee of Detail proposed the President of the Senate (this was before the invention of the Vice Presidency); Gouverneur Morris preferred the Chief Justice; Madison a Cabinet Council if such a body were agreed upon. In the First and Second Congresses the relative merits of the President pro tempore of the Senate, the Speaker of the House, the Chief Justice, the Senior Associate Justice, the Secretary of State, and the Secretary of the Treasury were descanted upon. The ground has frequently been gone over: in 1858 when Vice President King died; in 1868 when the conviction of Johnson would have made Ben Wade President; in 1881 when there was an absolute failure in the succession -- no President pro tempore of the Senate and no Speaker of the House -- a situation which had also occurred in 1877 and 1845; in 1885 when the death of Cleveland would have brought a Republican into the Presidency -- a situation the reverse of that which had threatened in Fillmore's time; and in 1945 when Mr. Truman's death would have brought in Mr. Stettinius.

No one can read the elaborate arguments pro and con these various officers without being struck by their weakness. The President pro tempore of the Senate and the Speaker of the House are objected to as not being "officers"; the legislative construction of the Second Congress that they are should be conclusive. The same officers are recommended as being more nearly connected with the people than the Secretary of State. But who is more likely to command the confidence of the people -- a man chosen in one state or one district with no thought of the Presidency in mind, and who may represent views precisely the opposite of him whom the people as a whole have elected, or a man appointed by the President for the sole purpose of carrying his views into execution? It is also said that no man should appoint his own successor. But why not, provided the successor be only temporary?

It is worthy of remark that these arguments have never had any real weight in determining the succession. The question has always, though improperly, been decided on the basis of personalities. In 1792 the succession was placed in the President pro tempore of the Senate and, failing him, in the Speaker of the House, rather than, as many wished, in the Secretary of State. It was simply a question of Jefferson or not Jefferson.

In 1886 Mr. Reed, afterward Speaker, accurately defined the issue when he asked his colleagues whether they would rather have Bayard, who was then Secretary of State, or Sherman, who was President of the Senate, as President of the United States. In 1945 Mr. Stettinius was Secretary of State and Mr. McKellar President pro tempore of the Senate; the proposal was to make Speaker Rayburn the designated successor; when Mr. Byrnes was appointed Secretary of State, the bill was heard of no more.

Decisions of this kind should be made not so much on theoretical grounds as on the basis of experience. Congress might consider the holders of the several possible offices for, say, the past hundred years, and decide which office is most likely to produce a satisfactory Acting President. The Secretaries of State would, I think, bear away the palm.

To sum up, then, I suggest the abolition of the Vice Presidency, the holding of a mid-term election if the office of President becomes vacant, and the designation by Congress of the Secretary of State to act as a caretaker President until a new President is elected -- or, in the case of a Presidential disability, until the disability is removed. Such a remedy would do away with all the difficulties of construction which have arisen in the past with regard to the Vice Presidential succession. The interim head of the government would be, not President of the United States, but Acting President -- a style which might keep his face off postage stamps but which otherwise has much to commend it. The problem of a devolution in the event of a President's absence from the country or temporary illness would disappear. The question raised by Dickinson in the Federal Convention: "What is the extent of the term disability and who is to be the judge of it?" -- this question which so troubled the people during Garfield's time and during Wilson's -- would lose its importance, since an absent or ill President could not be thought to have forfeited his office.