A Constitutional Afterthought:
The Origins of the Vice Presidency,
1787 to 1804
Edward J. Larson*
Abstract
At the origins of the office, even though the Vice President was, as its first
occupant John Adams declared, “only one breath” away from the presidency,
the Office of the Vice President was an afterthought of the Constitutional
Convention. Never discussed during the first three months of the four-monthlong Convention, the Committee of Eleven introduced the vice presidency as a
byproduct of how it resolved to fix the presidential selection process. Under this
process, the Electoral College emerged, with each state assigned the same
number of electors as its members in the House of Representatives and Senate.
Each elector would cast equal, undesignated votes for two candidates, only one
of whom could be from the elector’s home state. Having a vice president gave
an apparent (though sham) reason for each elector’s second vote.
Many Convention delegates viewed the vice presidency as unnecessary,
some seeing the office as dangerous because the Vice President would be
President of the Senate as well, thus mixing Legislative and Executive functions.
By 1804, most observers believed that electors were implementing the system of
choosing the Vice President in a manner both different from what the framers
intended and in a potentially antirepublican fashion. Change was crucial.
Proponents introduced, passed, and ratified the Twelfth Amendment so that the
majority party would choose both the President and the Vice President. As a
result, except for retaining its limited role in the Senate, the Office of the Vice
President effectively moved from the Legislative to the Executive Branch,
resulting in the modern political structure.
* © 2012 Edward J. Larson. Hugh and Hazel Darling Professor of Law and University
Professor of History, Pepperdine University. This Article began as a presentation at the 2016
Pepperdine Law Review Symposium. The author would like to thank Pepperdine Law Review’s
editors and Pepperdine legal research librarian Jodi Kruger for their extraordinary support.
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In its 1787 origins, the creation of an office of Vice President was an
afterthought at the Constitutional Convention and reflected spectacularly
little forethought.1 Some delegates dismissed it as a useless appendage
while others saw it as a constitutional mistake.2 Even its proponents at the
Convention did not claim that the office served a significant government
purpose but rather defended it as an electoral expedient.3
The idea of having a Vice President first arose during the closing weeks
of the Constitutional Convention after an ad hoc Committee of Eleven was
appointed to resolve outstanding issues with the presidency.4 The Virginia
Plan, which served as the agreed starting point for the Convention’s
deliberations, did not make any provision for a Vice President5 and neither
did the New Jersey Plan6 nor the alternative proposals for a central
government structure offered at the Convention by Alexander Hamilton7 and
Charles Pinckney.8 All of these plans provided for a chief executive but
none for a Vice President—other than Hamilton’s plan suggesting that the
Senate’s chosen presiding officer be called “vice president” and succeed to
the presidency in case of a vacancy, until Congress could choose a
replacement.9 Further, during the extensive convention deliberations over
the nature and structure of the executive, which occurred at various
occasions during June, July, and August of 1787, no delegate mentioned
1. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed., 1911)
[hereinafter Farrand I].
2. See 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE
FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN
1787, at 531 (Johnathan Elliot ed., 2d ed. 1827) [hereinafter Elliot II] (reporting that James Wilson
of Pennsylvania argued “[t]hat the Vice President is a useless officer”). See generally EDWARD J.
LARSON, THE RETURN OF GEORGE WASHINGTON: 1783–1789, at 247–48 (Harper Collins ed., 2014).
3. See 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS OF THE ADOPTIONS OF THE
FEDERAL CONSTITUTION BY THE RECOMMENDATION OF THE GENERAL CONVENTION AT
PHILADELPHIA IN 1787 495 (Johnathan Elliot ed., 2d ed. 1827) [hereinafter Elliot I] (reporting that
George Mason saw the Vice President’s role as President of the Senate “for want of other
employment” as “dangerously blending the executive and legislative powers”).
4. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 473, 480–81 (Max Farrand
ed., 1911) [hereinafter Farrand II].
5. See Farrand I, supra note 1, at 20–23.
6. See Farrand I, supra note 1, at 242–45.
7. See 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, AT 617–31 (Max Farrand ed.,
1911) [hereinafter Farrand III].
8. Id. at 605.
9. Id. at 625.
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having a Vice President as we know the position today.10 Maryland’s Luther
Martin, who bolted from the Convention on September 4th, would later
state, “Every part of the system which relates to the Vice-President, as well
as the present mode of electing the President, was introduced and agreed
upon after I left Philadelphia.”11 Indeed, on that date, scarcely two weeks
before the Convention adjourned, the Committee of Eleven recommended a
redesigned scheme for electing the President by electors that included
having a Vice President who would assume the office of President for the
remainder of a President’s four-year term should the incumbent die in, be
removed from, or resign the office.12
More than anything, it was the structure of how the President would be
selected under the Committee of Eleven’s proposal that resulted in having a
Vice President, though that new office was not essential to the Committee’s
scheme.13 The Virginia Plan had called for the national Legislature to
choose the Executive for a fixed term,14 which was initially accepted by the
Convention.15 Repeatedly, however, delegates raised concerns that having
Congress choose the President, particularly if the President could serve
multiple terms, would undermine the independence of that office and
frustrate the checks and balances among the branches that many delegates
thought were vital for preventing tyranny.16 Big state nationalists, such as
Pennsylvania’s James Wilson, favored the direct election of the President by
voters,17 while southern delegates feared that such an approach would
disadvantage their states because of their large slave populations that could
not vote, and small-state delegates worried that it would concentrate power
to select the President in three or four populous states.18 Referring to the
10.
11.
12.
13.
14.
15.
16.
See generally Farrand I, supra note 1; Farrand II, supra note 4.
Elliot I, supra note 3, at 378.
See Farrand II, supra note 4, at 495.
Id. at 493–95.
Farrand I, supra note 1, at 21.
See id. at 226.
See TADAHISA KURODA, THE ORIGINS OF THE TWELFTH AMENDMENT: THE ELECTORAL
COLLEGE IN THE EARLY REPUBLIC, 1787–1804, at 8–9 (Bernard K. Johnpoll ed., 1994); see also
LARSON, supra note 2, at 247.
17. Farrand I, supra note 1, at 68–69; KURODA, supra note 16, at 9; LARSON, supra note 2, at
247–48.
18. Farrand I, supra note 1, at 68–69 (recording that Wilson argued for an election by the people,
“without the intervention of the State Legislatures . . . in order to make them as independent as
possible”); KURODA, supra note 16, at 9 (noting that while big northern states favored a direct
election, southern states believed it left them at a serious disadvantage because of their large slave
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Constitution as a whole, Wilson later remarked, “the Convention . . . [was]
perplexed with no part of this plan so much as with the mode of choosing the
President of the United States.”19
Various alternative methods for selecting the President were proposed at
the Convention over the course of the summer, including assigning that task
to state governors20 or some sort of special electors chosen for the purpose;21
however, no proposal could sustain majority support.22 Some delegates
warned that electors could pose a problem because they would favor
candidates from their own states and no one would obtain a majority.23
When the Committee of Eleven met on August 31st,24 the Convention voted
to reopen the question of how the President should be chosen and refer it to
the Committee with the other postponed parts.25
Largely under the influence of Pennsylvania’s Gouverneur Morris but
with the support of other members, the Committee of Eleven jettisoned
legislative selection of the executive in favor of a complex method utilizing
both state electors and Congress.26 To deal with concerns of small states,
each state would have the same number of electors as its members in the
House of Representatives, and within the Senate, states were assured at least
three electors for even the least populated state while still giving more
weight to larger states.27 Earlier proposed methods of assigning electors
were less protective of small states.28 To deal with concerns of slave states,
populations); LARSON, supra note 2, at 247–48 (describing the debate over direct elections and
Wilson’s later proposal for indirect elections, in which states would be divided into electoral districts
and each district’s chosen elector would vote on a presidential candidate).
19. See Elliot II, supra note 2, at 511.
20. Farrand I, supra note 1, at 175 (noting that Elbridge Gerry moved “that the National
Executive should be elected by the Executives of the States whose proportion of votes should be the
same with that allowed to the States in the election of the Senate”).
21. See, e.g., Farrand I, supra note 1, at 80–81 (noting that James Wilson proposed that
“members of the first branch of the national Legislature elect members for their respective districts
to be electors of the Executive magistracy”); KURODA, supra note 16, at 10–13.
22. See KURODA, supra note 16, at 9–15.
23. Id. at 11.
24. See Farrand II, supra note 4, at 473.
25. See id. at 321, 323, 472–73, 480–81.
26. See KURODA, supra note 16, at 14–15.
27. See LARSON, supra note 2, at 248.
28. KURODA, supra note 16, at 10–11 (noting that Ellsworth’s proposal, with a “total of twentyfive [electors,] meant that small states would be represented by just one person, thirteen would make
a majority, and a few had the power to select the President”); see also Farrand I, supra note 1, at
226–33.
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factoring House membership into the equation extended the Three-Fifths
Compromise to presidential selection, thus assuring more votes for slave
states than under direct election but not as much as under an approach that
allocated power to the states based on the whole number of their free and
enslaved people.29 In short, the Electoral College was a compromise.30
To address concerns expressed by various delegates that electors would
favor candidates from their own states, the Committee of Eleven proposed
that each elector would cast equal, undesignated votes for two candidates,
only one of whom could come from the elector’s home state.31 Even if all of
the electors favored only candidates from their own states, this approach
forced them to vote for at least one person from another state and allow
national candidates to emerge from the electors’ second votes.32 To win at
this stage, a candidate would need to receive one vote from a majority of the
electors, and the candidate receiving the most votes would become
President.33 If no candidate received at least one vote from a majority of the
electors, then Congress would step in to select the President from among the
five candidates receiving the most electoral votes.34 If two candidates
received the same number of votes from a majority of the electors, then
Congress would choose from between those two.35
This convoluted, jerry-rigged compromise created an anomaly.36 What
principled explanation was there for giving each elector two votes for
President? The question could be answered if each elector was ultimately
selecting two officeholders.37 Therefore, the Committee decided that the
candidate receiving the second-highest number of votes (even if they came
from a minority of the electors) would hold a new office of Vice President.38
As Virginia delegate James Madison later explained when confronted with
29.
30.
31.
32.
LARSON, supra note 2, at 248.
Id. at 248.
Farrand II, supra note 4, at 113, 512.
EDWARD J. LARSON, A MAGNIFICENT CATASTROPHE: THE TUMULTUOUS ELECTION OF 1800,
AMERICA’S FIRST PRESIDENTIAL CAMPAIGN 40–41 (Simon & Schuster Inc. eds., 2007) [hereinafter
LARSON, MAGNIFICENT CATASTROPHE]; see also Farrand II, supra note 4, at 157.
33. LARSON, MAGNIFICENT CATASTROPHE, supra note 32, at 41.
34. Farrand II, supra note 4, at 498.
35. Id. at 498.
36. See 13 ANNALS OF THE CONG. 673 (1803) (Gales & Seaton 1852) [hereinafter ANNALS OF
CONG.].
37. See LARSON, MAGNIFICENT CATASTROPHE, supra note 32, at 41.
38. See ANNALS OF CONG., supra note 36, at 681–82.
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this question at his state’s ratifying convention, “Each had two votes,
because one vote was intended for the Vice-President.”39 In this way, the
Vice Presidency was created to serve an electoral rather than a government
purpose.40
Having concocted a federal office with no real government purpose, the
Committee of Eleven needed to give its holder something to do.41 It
proposed conferring two principle duties on the Vice President that, taken
together, proved problematic for some delegates.42 First, the Committee
proposed that the Vice President become President should that office
become vacant during the incumbent’s term in office.43 This suggested to
some delegates an executive role for the Vice President, but actually gave
nothing for the officeholder to do so long as the President remained in
office.44 To supply some ongoing task, the Committee proposed that the
Vice President preside over the Senate with the power to vote in case of a
tie—a prospect seemingly made possible (but still unlikely) by the Senate
having an even number of members.45 This second duty suggested to some
delegates a legislative role for the Vice President that, when combined with
the first role, raised a concern about mixing Legislative and Executive
functions.46
Rushing toward adjournment—evidently more concerned about the
method for selecting the President than the creation of a high-sounding but
insignificant office—delegates at the Constitutional Convention said little
about the Committee of Eleven’s recommendation relating to the vice
presidency.47 The recommendation passed as part of the whole but not
before a telling exchange between three harsh groups of critics: future Vice
President Elbridge Gerry of Massachusetts; Virginia delegates George
Mason and Edmund Randolph; and three defensive-sounding Committee of
Eleven members, Morris, Roger Sherman of Connecticut, and North
39. 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL
CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at
495 (Johnathan Elliot ed., 1827) [hereinafter Elliot III].
40. KURODA, supra note 16, at 24.
41. Farrand I, supra note 1, at 493.
42. See infra notes 44–47 and accompanying text.
43. Farrand I, supra note 1, at 495.
44. See, e.g., Farrand I, supra note 1, at 536–37.
45. Farrand II, supra note 4, at 494, 639.
46. E.g., Farrand II, supra note 4, at 537.
47. See generally Farrand I, supra note 1; Farrand II, supra note 4; Farrand III, supra note 7.
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Carolina’s Hugh Williamson.48 In his Notes of the Convention, Madison
summarized the exchange as follows:
<Secton 3.> . . . “The [V]ice President shall be ex officio
President of the Senate.”
Mr. Gerry opposed this regulation. We might as well put the
President himself at the head of the Legislature. The close intimacy
that must subsist between the President [and V]ice-[P]resident
makes it absolutely improper. He was agst. [sic] having any vice
[p]resident.
Mr Govr Morris. The vice president then will be the first heir
apparent that ever loved his father—[i]f there should be no vice
president, the President of the Senate would be temporary
successor, which would amount to the same thing.
Mr Sherman saw no danger in the case. If the vice-President were
not to be President of the Senate, he would be without employment,
and some member by being made President must be deprived of his
vote, unless when an equal division of votes might happen in the
Senate, which would be but seldom.
Mr. Randolph concurred in the opposition to the clause.
Mr. Williamson, observed that such an officer as vice-President was
not wanted. He was introduced only for the sake of a valuable
mode of election which required two to be chosen at the same time.
Col: Mason, thought the office of [V]ice-President an encroachment
on the rights of the Senate; and that it mixed too much the
Legislative [and] Executive, which as well as the Judiciary
departments, ought to be kept as separate as possible. . . .
On the question shall the [V]ice President be ex officio President of
the Senate?
[New Hampshire] ay— [Massachusetts] ay—[Connecticut] ay.
48. See infra note 49 and accompanying text.
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[New Jersey] no. [Pennsylvania] ay.
, [Delaware] ay—
[Maryland]—no. [Virginia] ay— [North Carolina]—abst [South
Carolina] ay— [Georgia] ay. [Ayes – 8; Noes – 2; absent – 1.] .
The other parts of the same <Section> (3) were then agreed to.49
The Constitution created an office of Vice President that even one member
of the Committee of Eleven conceded was “not wanted,” but “introduced
only for the sake of a valuable mode of election which required two to be
chosen at the same time.”50 An afterthought at best and electoral expedient
at worst, no Convention delegate affirmatively defended the office of Vice
President as needed.51 At most, Sherman “saw no danger” in it, though
Gerry, Randolph, and Mason did52—with both Gerry and Mason later citing
it as one reason that they refused to sign the Constitution at the
Convention.53
Surviving records of the debates at the various state-ratifying
conventions suggest that members attending these historic conclaves gave as
scant meaning or attention to the vice presidency as delegates had at the
Constitutional Convention.54 Little was said about the office and no one
attributed much importance to it, though a few anti-Federalists disparaged
it.55 At Virginia’s heated and closely drawn convention, for example, future
President James Monroe declared, “The Vice-President is an unnecessary
officer. I can see no reason for such an officer.”56 Mason added as follows:
[T]he Vice-President appears to me to be not only an unnecessary
but dangerous officer. He is, contrary to the usual course of
parliamentary proceedings, to be president of the Senate. The state
from which he comes may have two votes, when the others will
have but one. Besides, the [L]egislative and [E]xecutive are hereby
mixed and incorporated together. I cannot, at this distance of time,
49. Farrand II, supra note 4, at 536–38.
50. Id. at 537.
51. See Elliot III, supra note 39, at 538.
52. Farrand II, supra note 4, at 536–37.
53. Id. at 633, 635, 639 (noting, however, that Gerry did say he could get over this and most of
his other objections and support the Constitution).
54. See generally Farrand I, supra note 1; Farrand II, supra note 4; Farrand III, supra note 7.
55. See, e.g., infra notes 57–58 and accompanying text.
56. Elliot III, supra note 39, at 489–90.
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foresee the consequences, but I think that, in the course of human
affairs, he will be made a tool of in order to bring about his own
interest, and aid in overturning the liberties of his country.57
Some members attending other state ratifying conventions also expressed
concerns about the vice presidency mixing legislative and executive
functions, but never in terms suggesting that this lone issue was decisive in
leading them to oppose ratification.58 This leaves a sense that the office
simply did not matter much to the framers nor to the ratifiers.
Even those few members of the state-ratifying conventions who rose in
defense of the office did so half-heartedly.59 For example, responding to the
charge that the “Vice-President is a useless officer,” Pennsylvania ratifying
convention member Thomas McKean, a former signer of the Declaration of
Independence and future governor, declared, “Perhaps the government might
be executed without him, but there is a necessity of having a person to
preside in the Senate.”60 Rising to objections leveled at Virginia’s ratifying
convention against the vice presidency, Madison added:
I think there are some peculiar advantages incident to this office,
which recommend it to us . . . . The consideration which
recommends it to me is, that he will be the choice of the people at
large. There are to be ninety-one electors, each of whom has two
votes: if he have one fourth of the whole number of votes, he is
elected Vice-President. There is much more propriety in giving this
office [of presiding over the Senate] to a person chosen by the
people at large, than to one of the Senate, who is only the choice of
the legislature of one state. His eventual vote [in the case of a tie] is
an advantage too obvious to comment upon.61
This offers some reason for the office from a key framer who had given no
reason for it at the Convention, but hardly represents a stirring testimonial
for it. On such faint praise, the vice presidency was carried along with the
57. Id. at 287–88.
58. E.g., 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS OF THE ADOPTION OF THE
FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN
1787, at 26, 43 (Johnathan Elliot ed., 2d ed. 1827) [hereinafter Elliot IV].
59. See infra notes 60–61 and accompanying text.
60. Elliot II, supra note 2, at 538.
61. Elliot III, supra note 39, at 487.
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rest of the Constitution to become the part of the new governmental
structure.
Straddling the Executive and Legislative Branches, its first occupant—
John Adams—was far from impressed with the post.62 Viewing the vice
presidency as a legislative position and put off by Adams’s Puritan
officiousness, Washington did not seek or accept Adams’s counsel during
his administration, even though Adams loyally supported Washington at
every turn.63 Adams admitted to federal jobseekers that he had no say on
patronage and no influence in the administration.64 Focusing his attention on
his legislative duties, which he attended to on a daily basis, Adams initially
joined in offering motions and debating measures in the Senate, but the
senators soon tired of his interference and limited the Vice President’s role
to that of presiding officer.65 As such, Adams could not introduce legislation
or speak to the merits of issues.66 In short, as biographer David McCollough
concluded about Adams, “[T]he role of Vice President made him a political
cipher.”67 After one term, Adams concluded, “My country has in its wisdom
contrived for me the most insignificant office that ever the invention of man
or his imagination conceived.”68 A member of the first Congress joked that
the office should carry the title, “His Superfluous Excellency.”69 For all
practical purposes, the vice presidency under the original Constitution had
neither Executive authority nor substantive Legislative power.70
Still, Adams appreciated that, as Vice President, he was (as he once put
it) “only one breath” away from the presidency—that breath being
Washington’s, of course—and viewed himself as the General’s likely
successor.71 For example, in letters during his terms as Vice President,
Adams referred to himself as the heir apparent.72 Although it proved true in
his case, this view looked back to the framers’ vision of the vice presidency
62. See KURODA, supra note 16, at 24; see also infra note 68 and accompanying text.
63. DAVID MCCULLOUGH, JOHN ADAMS 408, 415 (2001); LARSON, supra note 2, at 298.
64. MCCULLOUGH, supra note 63, at 411.
65. LARSON, MAGNIFICENT CATASTROPHE, supra note 32, at 28; see also MCCULLOUGH, supra
note 63, at 401–08, 434.
66. See LARSON, MAGNIFICENT CATASTROPHE, supra note 32, at 28.
67. MCCULLOUGH, supra note 63, at 434.
68. See KURODA, supra note 16, at 24.
69. Id.
70. Id.
71. MCCULLOUGH, supra note 63, at 423.
72. Id. at 458.
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rather than forward to what it could become, underscoring how poorly they
foresaw the future of American politics in their construction of the Office of
Vice President.73 The framers conceived a presidential selection process in
which independent electors, rooted in the politics of their separate states,
would each vote for the two people they viewed as best suited to become
President, with the candidate receiving the most votes gaining that post and
the second-place candidate serving as Vice President.74 In such case, the
Vice President would, in a certain sense, be a competitor and plausible heir
apparent to the President.
Even in the first federal election and much more in the second, it
became clear that electors implemented the system in a manner quite
different from what the framers intended.75 From the outset, they cast one
vote for President and another vote for Vice President rather than two for
President.76 In the 1788–1789 election, every elector intended to vote for
Washington as President and Adams—or some other person—for Vice
President.77 Fearful that so many electors might vote for both Washington
and Adams in this manner that Adams could accidently come out ahead of
Washington in the final count, Federalist leader Alexander Hamilton
actively encouraged some electors to scatter their second votes so as to
assure Washington won the Presidency, which they readily did.78 It is hard
to believe that Hamilton or many of the Federalists who voted for Adams
actually viewed him as the heir apparent to the presidency or in any way
comparable to Washington.79 Quite to the contrary, Hamilton supported
Adams for Vice President to keep him from getting a more meaningful post,
such as Chief Justice.80 There is no evidence that anyone at the Convention
foresaw using the vice presidency to sidetrack rivals, yet Hamilton figured
73. See supra notes 37–49 and accompanying text.
74. See LARSON, MAGNIFICENT CATASTROPHE, supra note 32, at 40; KURODA, supra note 16, at
11–12.
75. See infra notes 76–82 and accompanying text.
76. KURODA, supra note 16, at 129.
77. LARSON, supra note 2, at 249, 253.
78. Id. at 255–56.
79. Id. at 253–55.
80. Id. (quoting Letter from Alexander Hamilton to James Madison (Nov. 23 1788),
https://founders.archives.gov/documents/Hamilton/01-05-02-0055) (“If he is not Vice President, one
of two worse things will be likely to happen—Either he must be nominated to some important office
for which he is less proper, or will become a malcontent and possible espouse and give additional
weight to the opposition to the Government.”).
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out how to use it in that way.
By the second presidential election in 1792, a further unforeseen
political development carried the electoral system even further from the
framers’ intention.81 National political factions had begun to replace state
political considerations as the driving force in federal elections.82 As in the
1788–1789 election, every elector voted for Washington as President in the
1792 election, but all but five of them (out of 132) cast their other vote for
the chosen Vice Presidential nominee of their faction: either Adams for the
nationalistic Federalists or New York Governor and former Anti-Federalist
leader, George Clinton, for the states’ rights-minded Republicans.83 Electors
had become pawns of the national factions rather than independent agents.
The partisan nature of presidential elections became fully apparent in
1796, after Washington declined to stand for a third term.84 In that election,
electors in virtually every state were chosen based on their commitment to
vote for the nominees of the two nascent political parties chosen by their
caucuses in Congress.85 The Federalists endorsed Adams as President and
South Carolina’s Thomas Pinkney as Vice President.86 The Republicans
countered with Jefferson for President and ultimately settled on Aaron Burr
of New York for Vice President.87 Of course, the already antiquated
electoral-vote system did not allow electors to designate their votes for
President or Vice President, and thus the parties could only obtain their
intended outcome by having one or more of their electors scatter their
“second vote” to someone other than the party’s vice presidential nominee.88
The outcome was expected to be close in 1796, and in the end, the
Federalists won by a scant three-electoral-vote margin, seventy-one to sixtyeight.89
By this point, alienated from Adams, Hamilton saw in the election
system an opportunity to bring in Pinckney ahead of Adams by having the
81. See infra notes 82–89 and accompanying text.
82. See KURODA, supra note 16, at 129; LARSON, supra note 2, at 300.
83. Historical Election Results, NAT’L ARCHIVES & RECORDS ADMIN., U.S. ELECTORAL COLL.,
https://www.archives.gov/federal-register/electoral-college/votes/1789_1821.html. (last visited Feb.
7, 2016).
84. KURODA, supra note 16, at 63–69.
85. LARSON, MAGNIFICENT CATASTROPHE, supra note 32, at 41–42.
86. Id. at 41.
87. Id. at 42.
88. Id. at 40–41.
89. Historical Election Results, supra note 83.
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South Carolinian’s eight home-state electors—who would surely favor
Jefferson over Adams for President—cast their second votes for Pinckney
rather than Burr.90 If everything else played out as Hamilton planned,
Pinckney would come in first even though the electors voting for him did so
with the intention of him becoming Vice President.91 Adams’s supporters
got wind of the plot, however, and scattered so many of their second votes
away from Pinckney that Jefferson, with uniform support from the sixtyeight Republican electors, finished second and became Vice President even
though every elector voting for him did so with the intention of making him
President.92 Clearly the system was not working as either the framers or the
emerging parties intended—the vice presidency lay at the heart of the
problem. For once, however, the President and Vice President were true
political rivals, and Jefferson spent his tenure in office undermining the
Administration from his post as presiding officer of the Senate.93
With the original electoral-vote process strained almost to the breaking
point by the previous three contests, the election of 1800 added the last straw
that brought down the old system and, through the resulting adoption of the
Twelfth Amendment, fundamentally changed the vice presidency from an
independent office to a partisan accessory to the presidency.94 The popular
election featured an unprecedentedly bitter partisan campaign between
Federalists and Republicans, which the Republicans won by a one-state
margin after narrowly switching the outcome in New York from four years
earlier.95 This might not have changed anything but for a misstep by
Jefferson’s forces.96 With the contest running close and not wanting to let
Adams slip into the vice presidency like Jefferson in 1796, Republicans
urged their electors to cast a unified ballot while failing to direct any of them
to scatter a second vote.97 Accordingly, when the ballots were counted,
Jefferson and Burr each had seventy-three votes.98 Even though every
Republican elector had intended to vote for Jefferson as President and Burr
90.
91.
92.
93.
94.
95.
96.
97.
98.
LARSON, MAGNIFICENT CATASTROPHE, supra note 32, at 42.
Id.
Id. at 42–43.
LARSON, MAGNIFICENT CATASTROPHE, supra note 32, at 31–32.
KURODA, supra note 16, at 161.
See id. at 96–97
Id.
LARSON, MAGNIFICENT CATASTROPHE, supra note 32, at 240–43.
Id. at 242–43.
527
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as Vice President, the election was thrown into the lame duck House of
Representatives where neither party controlled a majority of the state
delegations.99 Hoping to strike a deal with Burr for their support, Federalists
hung the House for seven days through thirty-five ballots before letting
Jefferson prevail after Republicans threatened civil war and disunion.100
These Federalist machinations underscored the failure of the
constitutional provisions for electing the Vice President. With Republicans
taking control of both houses of Congress, an effort promptly began to
amend the Constitution to provide for designation of electoral votes—one
for President and one for Vice President.101 This switch in the electoral-vote
process would institutionalize the shift to partisan tickets for federal office,
with the Vice President running in tandem behind the President as part of his
or her team and reduce the opportunity for a minority party to manipulate the
system.102 Amending the Constitution requires a two-thirds majority in both
Houses, and with minority Federalists opposed to any change that would
advantage their opponents, Republicans did not gain a sufficient majority to
force through a change until after midterm elections in 1802. 103 Then they
acted.
With a commanding ninety-six to thirty-eight majority, Republicans in
the House of Representatives took up as one of its first orders of business a
simple amendment providing for the designation of electoral votes, one for
President and one for Vice President.104 It passed the House over unified
Federalist opposition in just eleven days.105 Victorious Republicans stressed
how the old procedure was subject to antidemocratic manipulations
potentially resulting in the selection of a President that no elector supported
for that post—what nearly happened in 1800.106 Republican Representative
John Clopton of Virginia declared, “When one person is intended for an
office and another person actually obtains it, such election, if indeed it can
properly be called an election, is not conformable to the will of those by
99.
100.
101.
102.
103.
104.
105.
106.
528
LARSON, MAGNIFICENT CATASTROPHE, supra note 32, at 243–44.
Id. at 248–49, 260.
KURODA, supra note 16, at 119–22
See, e.g., Historical Election Results, supra note 83; c.f. KURODA, supra note 16, at 161.
KURODA, supra note 16, at 124.
Id. at 127.
Id. at 131.
Id. at 129.
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whom it was made.”107 In arguing against it, Federalists stressed that the
amendment would denigrate the vice presidency by leading electors to cast
one vote for a candidate suitably qualified to be President and one for
someone simply sufficient to preside over the Senate.108 Reduced in this
fashion to a mere partisan “sinecure,” some Federalist representatives simply
urged to abolish the office of Vice President.109
With a smaller majority than in the House, including some friends of
Burr who still presided over the body, Senate Republican leaders would
need every vote they could muster to pass the Amendment and had to
accommodate the interests of each potential supporter.110 The process took
longer in the Senate than in the House—nearly three months—and the
incorporation of more matters into the Amendment than simply designation,
including the requirement that to be elected, the Vice President—as well as
the President—required votes from a majority of the electors.111 This
addition was demanded by Republican Senator Stephen Bradley of Vermont,
who warned that without it, designation would so diminish the vice
presidency that it “would be hawked about at market, and given as change
for votes for the Presidency.”112
Federalist Senator Uriah Tracy of Connecticut argued the Amendment
did not cure this problem. Rather, it simply assured that the President and
Vice President would come from the same majority party while busting the
existing system by requiring electors to vote for two candidates for President
without knowing which would prevail.113 In addition, Senator Tracy
believed that small states would lose under the new arrangement, and when
coupled with a majority-vote requirement, it would lead to the selection of
second-rate vice presidents from large states capable of delivering electoral
votes for the party ticket.114
Tracy correctly predicted that vice presidential nominations under the
Twelfth Amendment would go to a person who could balance the party
ticket and broaden its appeal; however, recent nominees, such as Joe Biden,
107.
108.
109.
110.
111.
112.
113.
114.
ANNALS OF CONG., supra note 36, at 491.
See ANNALS OF CONG., supra note 36, at 536; KURODA, supra note 16, at 129.
See ANNALS OF CONG., supra note 36, at 540.
See KURODA, supra note 16, at 129–31, 138.
Id. at 133–43.
ANNALS OF CONG., supra note 36, at 91.
See KURODA, supra note 16, at 140.
Id. at 140–41; ANNALS OF CONG., supra note 36, at 173.
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Paul Ryan, Sarah Palin, John Edwards, Joe Lieberman, and Dick Chaney,
show that the nominee need not come from a large state.115 Federalist
Senator Samuel White of Delaware proved more prophetic when he
predicted about the selection of Vice Presidential nominees, “The question
will not be asked, is he capable? [I]s he honest? But can he by his name, by
his connexions, by his wealth, by his local situation, by his influence, or his
intrigues, best promote the election of a President?”116
During congressional debate over the Amendment, Federalist Senator
Jonathan Dayton of New Jersey went so far as to propose that because
designation would remove any useful purpose for an independently elected
Vice President, the office should simply be eliminated.117 Tracy spoke in
support of considering Dayton’s proposal, along with at least one
Republican senator, and voiced some agreement with it by suggesting that
the vice presidency might be an unnecessary “fifth wheel to a coach.”118 To
get their forces back in line, Republicans adjourned for the day and never
took up Dayton’s motion.119
As they had in the House, Republicans defended designation on the
grounds that it would insure that the majority would elect the Vice President
and prevent a repeat of 1800—when the electors’ intended candidate was
nearly deprived of the presidency.120 They showed how someone put
forward as Vice President by electors could, without designation, become
President.121 This, they charged, could destroy the union.122 With time
running out to get it ratified before the 1804 election, and taking advantage
of two convenient absences from the floor that reduced the number required
for a two-thirds majority by one, Senate Republicans passed the Amendment
without a vote to spare on December 2, 1803.123 Every Federalist voted
no.124
The House concurred with the Senate six days later, with the Speaker
115.
116.
117.
118.
119.
120.
121.
122.
123.
124.
530
ANNALS OF CONG., supra note 36, at 93.
Id. at 36, at 144.
See id. at 128.
Id. at 23.
See id. at 25.
E.g., id. at 99, 103, 152, 157, 186, 196.
See id. at 101.
See id. at 89, 102, 196.
Id. at 209.
Id.
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required to vote to supply the necessary two-thirds margin.125 Again, every
Federalist member opposed it, this time with Massachusetts Federalist
Representative Samuel Taggart repeating the now familiar charge that the
Amendment would reduce the Vice President to being “the mere tool of the
President.”126
Connecticut Representative Simeon Baldwin, Roger
Sherman’s son-in-law, wrote home to his wife, “Our little band of
Federalists foiled in all our measures by the weight of numbers—are well
united—but are reduced to the only consolation left us a consciousness of
acknowledged superiority of Talents & Dignity—but they are of little effect
here.”127 Baldwin did not seek re-election in 1804.128
Sent to the states for ratification in December 1803, with President
Jefferson’s full endorsement, the amendment gained the support of the
necessary three-fourths of the states by the end of July 1804, in time to
govern the 1804 election.129 For his part, Jefferson asserted that this
designation would mean that “neither a Presid[en]t or Vice President can
ever be made but by the fair vote of the majority of the nation,” and
attributed Federalist opposition to the fact that “they are not” a majority
party.130 He viewed ratification as tantamount to a vote of confidence in
himself.131 Jefferson declared, “[T]he discriminated vote of my constituents
will express unequivocally the verdict they wish to pass on my conduct.”132
In state after state, the Amendment was ratified by the Legislature on the
grounds that it would help to assure that in a republic, “the voice of the
majority should prevail.”133 The flagship Republican newspaper, the
Aurora, declared from the outset, “The dangers these states escaped from at
the memorable contest in 1801 call for a prevention of the like in future.”134
Even Hamilton supported the Amendment on these grounds, writing to thenSenator Gouverneur Morris of New York in 1802 that he favored the
125. Id. at 776.
126. Id. at 733.
127. KURODA, supra note 16, at 151.
128. BIOGRAPHICAL DIRECTORY OF THE UNITED STATES CONGRESS (1774–2005), at 602–03
(Andrew Dodge et al. eds., 2005).
129. See KURODA, supra note 16, at 155–61.
130. Id. at 155.
131. See id.
132. Id. at 156.
133. Id. at 157.
134. From the Aurora of October 17, AM. CITIZEN, Oct. 19, 1903, at 2.
531
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principle of designation for vice presidential electoral votes “because it is in
itself right that the people should know whom they are choosing [and]
because the present mode gives all possible scope to intrigue.”135 The
Amendment failed only in Federalist-dominated Delaware, Massachusetts,
and Connecticut.136 New Hampshire provided something of an anomaly
when its arch-Federalist governor, John Gilman, vetoed ratification even
though the Constitution does not give governors that power.137 In doing so,
he raised the standard Federalist charge that designation would diminish the
stature of the Vice President, or, as Gilman put it, make that officeholder
“deemed less respectable than heretofore.”138 Regardless of whether that
verdict was correct, the Twelfth Amendment became part of the Constitution
and the ground was laid for the modern vice presidency as the rear-rider
peddling but not steering a tandem bike.
Tellingly, in 1805, George Clinton became the first post-Twelfth
Amendment Vice President after declining to run for an eighth term as
governor of New York on the grounds of his advanced age and poor
health.139 At sixty-five, he saw the vice presidency as an ideal retirement job
because it required little work and left so much time for recreation.140
Clinton was elected to the office twice—once running with Jefferson and
once with Madison—but died during his second term.141 He was succeeded
as Madison’s Vice President at the next election by a sixty-eight-year-old
Elbridge Gerry, who opposed creation of the office at the Constitutional
Convention142 and passed away less than two years after assuming it.143
Given their age, neither man was viewed as an heir apparent or competitor to
the President, but they did play a role in balancing the party ticket as a bigstate Northerner running with a Virginia slaveholder.144 As intended, the
135. Letter from Alexander Hamilton to Gouverneur Morris (Mar. 4, 1802), https://
founders.archives.gov/documents/Hamilton/01-25-02-0300.
136. KURODA, supra note 16, at 161.
137. Id.
138. New-Hampshire, NEWBURYPORT HERALD, June 29, 1804, at 2.
139. KURODA, supra note 16, at 24–25.
140. Id. at 24–25.
141. Id.; see also George Clinton, ENCYCLOPEDIA BRITANNICA (Oct. 24, 2016),
https://www.britannica.com/biography/George-Clinton-vice-president-of-United-States.
142. Farrand II, supra note 4, at 536–37, 633.
143. Elbridge Gerry (1813–1814)—Vice President, MILLER CTR. PUB. AFF. U. VA., http://
millercenter.org/president/essays/gerry-1813-vicepresident (last visited Feb. 7, 2017).
144. Id.
532
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Twelfth Amendment brought American politics and the vice presidency into
line with how those institutions had already been evolving. First, as stressed
during congressional debate, the Amendment fit the national government’s
emerging two-party structure so that the majority party would choose both
the President and the Vice President.145 Second, except for leaving the
office with a ministerial and a tie-breaking role in the Senate, the
Amendment effectively moved the office from the Legislative to the
Executive Branch by having the Vice President chosen on a partisan ticket
with the President.146 With its ratification, the modern national political
structure was complete.
145. See ANNALS OF CONG., supra note 36, at 186.
146. E.g., id. at 696, 702–03, 733 (suggesting that, under the Amendment, the Vice President will
be a “mere tool of the President” or otherwise politically subservient).
533
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534