Concocting the Most Insignificant Office Ever
Contrived: The Vice Presidency During the Early
Republic
ANDREW N. SHINDI*
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1030
I. THE PROTO-VICE PRESIDENT: LIEUTENANT GOVERNORS AND STATE
CONSTITUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1033
II. AT THE CONVENTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1034
III. THE RATIFICATION DEBATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1038
A.
PENNSYLVANIA
...................................
1039
B.
CONNECTICUT
...................................
1039
C.
MASSACHUSETTS
..................................
1040
D.
VIRGINIA
.......................................
1041
E.
NEW YORK
......................................
1042
F.
NORTH CAROLINA
.................................
1044
IV. THE VICE PRESIDENCIES OF THE EARLY REPUBLIC . . . . . . . . . . . . . .
1045
A.
...............................
1045
John Adams (1789–1797) . . . . . . . . . . . . . . . . . . . . . . .
1045
............................
1047
1.
Thomas Jefferson (1797–1801) . . . . . . . . . . . . . . . . . . .
1047
2.
Aaron Burr (1801–1805) . . . . . . . . . . . . . . . . . . . . . . .
1049
3.
George Clinton (1805–1812) . . . . . . . . . . . . . . . . . . . .
1051
.............................
1052
THE HYBRID MODEL
1.
B.
C.
THE LEGISLATIVE MODEL
THE EXECUTIVE MODEL
* Georgetown Law, J.D. expected 2016; Harvard University, A.B. 2013. © 2016, Andrew N. Shindi.
Many thanks to Dean William Treanor and Professor John Mikhail in whose seminar this Note was
initially developed. Thanks also to the dedicated, talented editors and staff of The Georgetown Law
Journal for their support. Finally, I am grateful to my family and friends for their encouragement and
tolerance of my—at times—exhausting interest in the Founding Era. All views expressed here and any
errors are my own.
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1.
Martin Van Buren (1833–1837) . . . . . . . . . . . . . . . . . .
1052
2.
George M. Dallas (1845–1849) . . . . . . . . . . . . . . . . . . .
1053
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1055
INTRODUCTION
“[S]ure, they should [make jokes] . . . . There is no inherent power in the vice
presidency . . . . But here’s the deal. It is directly a reflection of your relationship with the president.”
—Vice President Joe Biden1
John Adams was exasperated. The United States was caught in the middle of
escalating tensions between Great Britain and France, and Adams believed
himself powerless to help. In a letter to his wife, Abigail, Adams blamed his
sense of impotence on his position as the nation’s first vice president—a role he
castigated as “the most insignificant Office that ever the Invention of Man
contrived . . . and as I can do neither good nor Evil, I must be born away by
Others.”2 Vice President Adams’s frustration stemmed from the constitutional
ambiguity surrounding his office. Hurriedly discussed in the final weeks of the
Constitutional Convention, the vice presidency was a bizarre creature, occupying responsibilities under both Article I and Article II of the U.S. Constitution.3
The debates at the state ratifying conventions added to the confusion as Federalists and Antifederalists squabbled over the vice presidency’s impact on separation of powers and whether the Vice President was a legislative official, an
executive official, or an infusion of both.
Today, such concerns are largely moot. The vice presidency is now closely
associated with the Executive Branch rather than the Senate. Over the past
twenty years, individuals who made substantial impacts on the direction and
tenor of their presidents’ administrations have dominated the Office of the Vice
1. The Late Show with Stephen Colbert, Vice President Joe Biden Interview, Part 2, YOUTUBE (Sept.
11, 2015), https://www.youtube.com/watch?v⫽XwmMPytjrK4. Vice President Biden is not alone in
this sentiment. Jokes about the vice presidency’s insignificance have transcended politics and entered
our popular culture. See, e.g., LIN-MANUEL MIRANDA, Take A Break, on HAMILTON: AN AMERICAN
MUSICAL (Atlantic Recording Corp. 2015) (“Angelica, tell my wife [Vice President] John Adams
doesn’t have a real job anyway.”).
2. Letter from John Adams to Abigail Adams (Dec. 19, 1793), http://www.masshist.org/digitaladams/
archive/doc?id⫽L17931219ja&bc.
3. See U.S. CONST. art. I, § 3, cl. 4 (“The Vice President of the United States shall be President of the
Senate, but shall have no Vote, unless they be equally divided.”); U.S. CONST. art. II, § 1, cls. 1–2
(instituting the vice presidency as an independently elected office and establishing the Electoral
College); U.S. CONST. art. II, § 1, cl. 6 (declaring that the “Powers and Duties of the said [President’s]
Office . . . shall devolve on the Vice President” in the event of the president’s removal, death, resignation, or incapacity).
2016]
CONCOCTING THE MOST INSIGNIFICANT OFFICE
1031
President.4 Nevertheless, the image of an influential vice president working
closely with the nation’s chief executive is a relatively new one. Indeed, it was
not until the Carter Administration when Walter Mondale became the first vice
president to receive his own permanent office in the White House.5 Additionally, most legal scholars have focused on the vice presidency through twentiethand twenty-first-century lenses, examining vice presidential candidate selection
or presidential succession under the Twenty-Fifth Amendment.6 Little academic
attention has been dedicated to the early vice presidency or how the office broke
from its Article I moorings and evolved into a predominately Article II position.7
Jody Baumgartner is one academic who has explored the historical development of the vice presidency. As Baumgartner argues in The American Vice
Presidency Reconsidered, the vice presidency can be categorized into three eras:
traditional (1789–1896), transitional (1896–1960), and modern (1960–present).8
According to Baumgartner, during the traditional era, the vice presidency
remained isolated from the presidency, wallowing in powerlessness and obscu-
4. For example, Vice President Gore functioned as President Clinton’s chief advisor on environmental policy and led the commission to reform government. See Albert A. Gore, Jr., 45th Vice President
(1993–2000), U.S. SENATE, http://www.senate.gov/artandhistory/history/common/generic/VP_Albert_
Gore.htm (last visited Jan. 9, 2016). Following September 11th, President George W. Bush relied on
Vice President Cheney’s experience as Secretary of Defense to help craft America’s national security
policy. See Nina Totenberg, Cheney: A VP with Unprecedented Power, NPR (Jan. 16, 2009, 3:49 PM),
http://www.npr.org/templates/story/story.php?storyId⫽99422633. President Obama has often called upon
Vice President Biden’s extensive Senate background to help muscle through health care reform, to
negotiate budget agreements, and to advocate for gun control. See J. Taylor Rushing, Joe Biden Still
Has One Foot in the Senate; May Be Key to Healthcare, THE HILL (Mar. 9, 2010, 11:00 AM),
http://thehill.com/homenews/senate/85597-joe-biden-still-has-one-foot-in-the-senate; Gail Russell Chaddock, In ‘Fiscal Cliff’ Deal Joe Biden Upstages President Obama, CHRISTIAN SCI. MONITOR (Jan. 1,
2013), http://www.csmonitor.com/USA/Politics/2013/0101/In-fiscal-cliff-deal-Joe-Biden-upstagesPresident-Obama-video; Matthew Daly, Biden: ‘We Have to Take Action’ on Gun Control, SEATTLE
TIMES (Dec. 20, 2012, 6:01 PM), http://www.seattletimes.com/seattle-news/politics/biden-we-have-totake-action-on-gun-control/.
5. JODY C. BAUMGARTNER, THE AMERICAN VICE PRESIDENCY RECONSIDERED 110 (2006). Vice President
Spiro Agnew was technically the first vice president to have his own office in the White House, but it
was relocated during the early Nixon years. Every vice president since Mondale has had his own White
House office. Id.
6. See generally VANCE R. KINCADE, JR., HEIRS APPARENT: SOLVING THE VICE PRESIDENTIAL DILEMMA
(2000) (discussing the difficulties that incumbent vice presidents face in both obtaining their party’s
nomination for president and winning the general election); Joel K. Goldstein, Taking from the
Twenty-Fifth Amendment: Lessons in Ensuring Presidential Continuity, 79 FORDHAM L. REV. 959 (2010)
(examining the current system for presidential succession and identifying its strengths and weaknesses);
Mark Hiller & Douglas Kriner, Institutional Change and the Dynamics of Vice Presidential Selection,
38 PRESIDENTIAL STUD. Q. 401 (2008) (noting that changes in party politics and elections have
compelled presidential candidates to focus on experience and competency rather than geographical or
ideological balance in selecting their running mates).
7. For example, in their respective works on the Constitutional Convention of 1787, Richard
Beeman and David O. Stewart devote only a combined seven pages to the vice presidency. See RICHARD
BEEMAN, PLAIN, HONEST MEN: THE MAKING OF THE AMERICAN CONSTITUTION 299–300, 305–06 (2009);
DAVID O. STEWART, THE SUMMER OF 1787: THE MEN WHO INVENTED THE CONSTITUTION 170, 213, 215
(2007).
8. BAUMGARTNER, supra note 5, at 14, 23, 58.
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rity. The traditional era was comprised of vice-presidential “cranks [and] criminals” and saw “a rogues’ gallery of personal and political failures.”9 It was not
until the “transitional era” when vice presidents started their shift towards the
Executive Branch and obtained greater access to the presidents.10 Conventional
wisdom has largely adopted Baumgartner’s understanding of the vice presidency during the early years of the Republic.
This Note challenges Baumgartner’s framework of the traditional era and
argues that the vice presidencies during the early Republic were not as feeble or
ineffectual as generally believed. Although not as powerful as the senators they
presided over or the presidents they served under, the first occupants of the vice
presidency achieved some degree of power and influence by seizing upon the
constitutionally ambiguous nature of their office. Certain vice presidents during
the traditional era had significant access to their presidents and collaborated
closely with them to advance their administration’s policies. Others embraced
their role as presiding officer of the Senate and, interestingly, utilized that
position to challenge the legislative goals of their presidents. The existence of
such vice presidents during the early Republic counters the popular notion of
vice presidential impotence. Indeed, these early vice presidents planted the
seeds for the influential vice presidents we now see today.
This Note traces the origins of the vice presidency as an institution and
discusses how the office operated within the Constitution’s framework during
roughly the first half-century of the Republic (1789–1849). Competing understandings of the vice presidency, and its place within the constitutional scheme,
started with the debates at the Federal Convention and continued through the
ratification wars (1787–1790). Ultimately, three different models emerged:
legislative, executive, and hybrid. Under the legislative model, the Vice President was predominately a legislative officer, who would only enter the executive arena in the event of the president’s death or removal from office.
Historically, this model had the strongest connection to state practices. The
majority of late eighteenth-century state constitutions provided for a purely
legislative officer (such as the President of the Senate) to assume the powers of
the governor in the event of death or resignation from office. For the executive
model, the Vice President, as an independently elected official, functioned as a
conduit for the President and an executive check on the Senate. Lastly, the
hybrid model invoked classical republican theory. Under this model, the Vice
President operated as a link between the Legislative and Executive Branches.
As this Note argues, examples of these different models are showcased in the
early vice presidencies, and it was through these models that the vice presidents
were able to obtain influence. First, John Adams adopted a hybrid model,
9. Id. at 14 (first quoting STEVE TALLY, BLAND AMBITION: FROM ADAMS TO QUAYLE—THE CRANKS,
CRIMINALS, TAX CHEATS, AND GOLFERS WHO MADE IT TO VICE PRESIDENT (1992); then quoting MICHAEL
NELSON, A HEARTBEAT AWAY 30 (1988)).
10. See id. at 23–24.
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CONCOCTING THE MOST INSIGNIFICANT OFFICE
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attempting to straddle both the Legislative and Executive Branches. This model
was abandoned under Vice President Jefferson and his immediate successors,
Burr and Clinton, who pursued the legislative model. Gradually, the legislative
model dominated the nineteenth-century vice presidency. Nevertheless, there
were instances of vice presidents employing the executive model during the
1800s, which foreshadowed the vice presidency’s eventual transition away from
the Senate chamber and towards the White House.
Part I will outline how the eighteenth-century state constitutions handled the
lieutenant governorship, an office that functioned as a proto-Vice President. Part
II will examine how the Constitution’s framers utilized the lieutenant governorship as a springboard to create the U.S. vice presidency. This section will also
introduce the initial debates over the Office of the Vice President, a debate that
spills over into Part III, where I examine how the Federalists and Antifederalists
perceived the vice presidency during the state ratifying conventions. I will
conclude by analyzing six vice presidents who best exemplify the models
described above: Adams (hybrid); Jefferson, Burr, and Clinton (legislative); and
Van Buren and Dallas (executive).
I. THE PROTO-VICE PRESIDENT: LIEUTENANT GOVERNORS AND STATE
CONSTITUTIONS
Like many components of the U.S. Constitution, the Office of the Vice
President can trace its development to the state constitutions of the 1770s and
1780s. Although the state constitutions referred to them by different names
(“lieutenant governor,” “deputy governor,” or even “vice president”), each state
had established an office to handle executive succession.11 For most states,
succession involved an interplay between the Executive and Legislative Branches.
Such integration is striking because several state constitutions asserted the
complete separation and independence of each governmental branch.12 Eight
state constitutions required the presiding officer of a legislative chamber or
member of an executive council to assume power in the event of the executive’s
removal or death.13 For most lieutenant governors, this was the extent of their
power.
However, a different approach had emerged in the New York, South Carolina,
Massachusetts, and Vermont constitutions.14 Under these constitutions, the
Lieutenant Governor was an independently elected official who possessed both
11. For a summation of the different forms of executive succession at the state level, see infra
Table 1.
12. See, e.g., GA. CONST. of 1777, art. I; MD. CONST. of 1776, A DECLARATION OF RIGHTS, art. VI; N.C.
CONST. of 1776, A DECLARATION OF RIGHTS, art. IV.
13. See infra Table 1.
14. Although Vermont was not a state at the time of the Constitution’s drafting, the Vermont
constitution is included as part of my analysis. The Vermont constitution, ratified on July 4, 1786, was
extant at the time of the Constitutional Convention and contributed to the views surrounding executive
succession and separation of powers. See VT. CONST. of 1786.
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executive and outside duties.15 South Carolina, for example, empowered its
Lieutenant Governor to sit on courts of chancery.16 Although a minority position among the states, this brand of Lieutenant Governor served as the inspiration for the vice presidency during the Constitutional Convention. The table
below summarizes my findings.
Table 1: Lieutenant Governorships Across the States
“Lieutenant Governor” Model
State Constitutions
Successor to the governor/president
who had powers that interconnected
with the state legislature and who
routinely served as a member of an
executive council.
Connecticut (1662); Rhode Island
(1663).17
Lieutenant governor/vice president
would either be the speaker of one of the
legislative houses or would be part of an
executive council that advised the
governor and whose appointment was
determined by the legislature.
Delaware (1776); Georgia (1777);
Maryland (1776); North Carolina (1776);
New Hampshire (1776); New Jersey
(1776); Pennsylvania (1776); Virginia
(1776).18
Separately elected position referred to as
the “lieutenant governor” who held other
responsibilities aside from succeeding
the governor (for example, presiding
over a legislative chamber).
Massachusetts (1780); New York (1777);
South Carolina (1778); Vermont
(1786).19
II. AT THE CONVENTION
By May 25, 1787, the Constitutional Convention in Philadelphia obtained a
quorum of states to commence proceedings.20 After over three months of
15. See infra Table 1.
16. See S.C. CONST. of 1778, art. XXIV.
17. Both states were still governed by their colonial charters at the time of the Constitutional
Convention. See CHARTER OF CONNECTICUT (1662), reprinted in 1 THE FEDERAL AND STATE CONSTITUTIONS
COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOW HERETO
FORMING THE UNITED STATES OF AMERICA 529, 531 (Francis Newton Thorpe ed., 1909); CHARTER OF
RHODE ISLAND AND PROVIDENCE PLANTATIONS (1663), reprinted in 2 THE FEDERAL AND STATE CONSTITUTIONS
COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOW HERETO FORMING
THE UNITED STATES OF AMERICA 3211, 3214 (Francis Newton Thorpe ed., 1909). Connecticut and Rhode Island
would draft new constitutions in 1818 and 1842 respectively. CONN. CONST. of 1818; R.I. CONST. of 1842.
18. See DEL. CONST. of 1776, art. VII; GA. CONST. of 1777, arts. II, XXIX; MD. CONST. of 1776, arts.
XXVI, XXXII; N.C. CONST. of 1776, art. XIX; N.H. CONST. of 1776; N.J. CONST. of 1776, arts.
VII–VIII; PA. CONST. of 1776, §§ 19–20; VA. CONST. of 1776.
19. See MASS. CONST. of 1780, ch. II, § 2, arts. I–III; N.Y. CONST. of 1777, art. XX; S.C. CONST. of
1778, art. VIII; VT. CONST. of 1786, ch. II, § XI.
20. Gordon Lloyd, Introduction to the Constitutional Convention, TEACHINGAMERICANHISTORY.ORG,
http://teachingamericanhistory.org/convention/intro/ (last visited Jan. 11, 2016).
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CONCOCTING THE MOST INSIGNIFICANT OFFICE
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debate, the phrase “Vice President” finally appeared in James Madison’s Notes
roughly two weeks prior to the Convention’s adjournment.21 Indeed, throughout
most of the summer, there was no model for executive succession. Neither the
Virginia Plan nor the New Jersey Plan provided for one. However, as Jonathan
Elliot notes, both Pinckney22 and Hamilton23 proposed models for presidential
succession within their respective governmental blueprints. Pinckney and Hamilton both followed the system already included in a number of state constitutions wherein the President of the Senate would leave the legislature and fulfill
the chief executive’s duty. The Committee of Five also adopted this model in its
August 6th report.24
On August 31st, Roger Sherman motioned to “refer such parts of the Constitution as have been postponed, and such parts of Reports as have not been acted
on, to a Committee.”25 This Committee of Postponed Parts consisted of prominent figures including Sherman, James Madison, John Dickinson, and Gouverneur Morris.26 It would be this committee that produced the vice presidential
clauses of the Constitution. Convening immediately, the Committee issued its
report the following day, September 1st.27 Discussion on the vice presidency
began on September 4th.28
Unfortunately, there are no documents detailing the proceedings of the
Committee of Postponed Parts, which convened in the Library Room of the
Pennsylvania State House.29 Nevertheless, at least one committee member’s
21. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 493 (Max Farrand ed., 1911)
[hereinafter Farrand II] (covering the Convention from July 14 to September 17, 1787). James Madison
was one of a handful of delegates who kept notes of the Convention’s proceedings. Madison’s Notes are
among the more extensive records available and include many of the debates and speeches made by the
delegates. The Notes were first published in 1840. In 1911, Max Farrand edited and compiled
Madison’s notes into a now-famous three volume set. See 1 THE RECORDS OF THE FEDERAL CONVENTION
OF 1787 (Max Farrand ed., 1911) (covering the Convention from May 14 to July 13, 1787); 3 THE
RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed., 1911) (containing supplementary
documents).
22. See 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL
CONSTITUTION 148 (Washington, Jonathan Elliot ed., 2d ed. 1836) [hereinafter Elliot I] (“Art. VIII. . . .
In case of his removal, death, resignation, or disability, the president of the Senate shall exercise the
duties of his office, until another President be chosen.”).
23. Id. at 179 (“[Section] 5. . . . On the death, resignation, or removal of the governor, his authorities
to be exercised by the president of the Senate, until a successor be appointed.”).
24. Id. at 228. (“Art. X. . . . Sect. 2. In case of his removal as aforesaid, death, resignation, or
disability to discharge the powers and duties of his office, the president of the Senate shall exercise
those powers and duties until another President of the United States be chosen, or until the disability of
the President be removed.”). The Committee of Five was also referred to as the Committee of Detail.
See BEEMAN, supra note 7, at 246–47.
25. Farrand II, supra note 21, at 481; see also Elliot I, supra note 22, at 280.
26. Farrand II, supra note 21, at 481. The other members included: Nicholas Gilman (N.H.); Rufus
King (Ma.); David Brearly (N.J.); Daniel Carroll (Md.); Hugh Williamson (N.C.); Pierce Butler (S.C.);
and Abraham Baldwin (Ga.). Id.
27. See id. at 483.
28. Id. at 493.
29. See BEEMAN, supra note 7, at 299. Interestingly, Beeman does not mention the Committee of
Postponed Parts in “The Constitutional Convention of 1787: A Chronology.” Id. at xxiv–xxvii; see also
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impressions provide some hints as to the Vice President’s origins. John Dickinson later recalled the mediating efforts that he, Madison, and Morris played in
crafting what would become Sections One and Two of Article II of the Constitution.30 Dickinson referenced Morris’s call for conciliation and remembered
Madison, “took a Pen . . . and sketched out a Mode for Electing the President.”31 Of the Committee members, I posit that Morris was the most likely
candidate for including the language that established the Vice President as a
nationally elected position that presided over the Senate. As a former New York
Assemblyman, Morris was undoubtedly familiar with the New York Constitution of 1777. Article XX called for an independently elected Lieutenant Governor who “[shall] be president of the senate, and, upon an equal division, have a
casting voice in their decisions . . . . And [in the case of the governor’s removal]
shall exercise all the power and authority appertaining to the office of governor.”32 Other potential sources included the South Carolina 33 and Massachusetts 34 constitutions. However, neither state empowered its Lieutenant Governor
to preside over a legislative body or wield a “casting voice [vote].”35 Based on
the similar structure and language between the New York constitution and the
U.S. Constitution, the Committee of Postponed Parts likely referred to the New
York constitution when drafting the articles concerning the Vice President.
Surprisingly, the Committee of Postponed Parts’ proposal—which departed
from the Committee of Detail’s draft and enacted an independently elected Vice
President who would function as President of the Senate—was met with little
resistance by the general Convention. The provision allowing for an independently elected Vice President, who would serve a four-year term, passed in the
affirmative 10–1.36 The question of succession and empowering Congress to
legislate the succession process in the event of the removal of both the President
Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH.
L. REV. 545, 628 (2004).
30. See Letter from John Dickinson to George Logan (Jan. 16, 1802), in SUPPLEMENT TO MAX
FARRAND’S THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 300–01 (James H. Hutson ed., 1987).
31. Id. at 301. In his letter, Dickinson worried that under the Electoral College “[the electors] not
specifying who is Voted for a President, and who is Vice President may cause Confusion.” Id. at 302.
Dickinson’s concerns proved prophetic during the election of 1800, where a tie between Burr and
Jefferson almost resulted in Burr’s ascension to the presidency despite Jefferson’s position as the
Democratic–Republicans’ standard-bearer. 1800 Presidential Election, NAT’L ARCHIVES, http://www.
archives.gov/legislative/features/1800-election/1800-election.html (last visited Jan. 11, 2016); see also
STEWART, supra note 7, at 215. The election prompted the adoption of the Twelfth Amendment in 1803.
See STEWART, supra note 7, at 215.
32. N.Y. CONST. of 1777, art. XX. Vermont’s constitution—inspired by the New York constitution—
also provided such measures. VT. CONST. of 1786, ch. 2, § XI.
33. S.C. CONST. of 1778, arts. III, VIII.
34. MASS. CONST. of 1780, ch. II, § 2, arts. I–III.
35. N.Y. CONST. of 1777, art. XX.
36. See Elliot I, supra note 22, at 290. North Carolina was the single “nay” vote. Id.
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CONCOCTING THE MOST INSIGNIFICANT OFFICE
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and the Vice President passed 6–4.37 While debating over whether the Vice
President should serve as presiding officer of the Senate, Elbridge Gerry decried
such commingling between the two branches as improper. “We might as well
put the President himself at the head of the Legislature,” Gerry reportedly
declared.38 George Mason and Hugh Williamson echoed Gerry’s sentiment.39
Mason expressed concerns that the Vice President, “mixed too much the
Legislative & Executive,” and feared that the President, via the Vice President,
would collude with the Senate to overtake the government.40 Morris and
Sherman rebuked such concerns. Sherman maintained that the Vice President
would remain confined to the Senate where he would only “seldom[ly]” use his
tie-breaker vote.41 Notwithstanding Mason and Gerry’s concerns, the provision
to appoint the Vice President as presiding officer of the Senate passed 8–2.42
Overall, the Committee of Postponed Parts provided a new way to consider
executive succession and separation of powers. By establishing an independently elected Vice President who resided in both the Executive and Legislative
Branches, the Committee challenged the common state constitutional practice
of relying on the Legislative Branch to resolve executive vacancies. The
Committee’s work further underscores state constitutions’ role at the Convention as well as the impact individual delegates, such as Morris, had on the
phrasing of certain clauses.
Although the Vice President’s dual capacity sparked some controversy during
the Convention, the matter was quickly dismissed largely due to time constraints and exhaustion.43 The delegates’ inability to resolve the question of
whether the Vice President was an executive or legislative official, however,
would soon return to haunt the Constitution’s advocates. Shortly after the
Convention’s adjournment, Antifederalists across various states seized upon
Mason and Gerry’s misgivings over the Vice President. Opponents of the
Constitution added concerns about the Vice President’s ambiguity and the
office’s potential threat to the cherished principle of separation of powers to
their arsenal. Forced to go on the defense, the Federalists were hardly united in
37. Farrand II, supra note 21, at 535. Massachusetts, Connecticut, Delaware, and North Carolina
rejected the provision, and New Hampshire was divided. See id.
38. See id. at 536. As Madison observed, “[Gerry] was [against] having any [V]ice President.” Id. at
537. Mason later cited the Vice President being made head of the Senate as one of his eight objections
to the Constitution. See Elliot I, supra note 22, at 494–95.
39. Farrand II, supra note 21, at 537. Edmund Randolph also “concurred in the opposition to the
clause.” Id.
40. See id.
41. Id.
42. Id. at 534. New Jersey and Maryland voted in the negative, and North Carolina was listed as
“absent.” Id. at 538.
43. As the Convention carried into September, several delegates had already departed the Convention. The arrival of the Pennsylvania State Legislature also pressured the delegates to quickly conclude
their business. Indeed, the nationalists at the Convention seized upon the time constraints and the
delegates’ fatigue to brush aside Mason and Gerry’s efforts to call for a second convention. See
STEWART, supra note 7, at 217–18.
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their response to the vice presidential paradox.44 Ultimately, the nature of the
vice presidency remained unclear even after the ratification wars ended in
1790.45 However, under the heated ratification debates, three competing views
of the vice presidency would develop: executive, legislative, and hybrid. These
views would then be further developed and utilized by the first vice presidents.
III. THE RATIFICATION DEBATES
With the Convention adjourned, the delegates returned to their states to wage
ideological war against those opposed to the Constitution. It was in these
debates that three models of the vice presidency—legislative, executive, and
hybrid—emerged.46 Traditionally, the ratification debates are portrayed as a
two-sided conflict between the Federalists and Antifederalists. This depiction,
however, tends to paint the two factions as monoliths. As the ratification debates
revealed, the Federalists and Antifederalists largely lacked internal cohesion.
Supporters of the Constitution were hardly united in their interpretations of the
document. Similarly, the Antifederalists mounted differing rationales for why
the newly proposed government would be ruinous. This lack of agreement
carried into the debates over the vice presidency.
The varying views held by the Federalists and Antifederalists about the vice
presidency can best be explored at a state-by-state level. This Part examines the
states where the vice presidency became a focal point of debate. Recordkeeping
of the state ratifying conventions was marginal, and therefore, I was only able to
identify six states where the vice presidency was discussed either during the
state ratifying conventions or prior to the conventions: Pennsylvania, Connecticut, Massachusetts, Virginia, New York, and North Carolina. The six states are
arranged by the order in which they ratified the Constitution.47 Adopting a
state-by-state approach underscores how the fight to ratify the Constitution
consisted of thirteen distinct battles. Moreover, by dividing this section into six
subsections, Part III emphasizes how fragmented the nation’s leaders were when
it came to understanding the vice presidency. A nationalist approach is not
adopted here because there was no national understanding of the vice presidency. As Part III will illustrate, the confusion surrounding the Office of the
Vice President during the Constitutional Convention only intensified in the
crucible of the state ratifying debates.
44. See infra Part III.
45. See infra Part IV.
46. After reviewing several primary sources, I decided to focus this section on the six states where
there were key debates and arguments over the constitutional nature of the vice presidency.
47. The chronology of the states’ ratifications is as follows: Pennsylvania (Dec. 12, 1787); Connecticut (Jan. 9, 1788); Massachusetts (Feb. 6, 1788); Virginia (June 25, 1788); New York (July 26, 1788);
and North Carolina (Nov. 21, 1789). BEEMAN, supra note 7, at xxv.
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A. PENNSYLVANIA
Antifederalist Richard Henry Lee may have launched the first volley in the
Pennsylvanian debate over the vice presidency in a letter where he proposed to
“[o]mit the creation of a Vice President . . . and . . . avoid the establishment of a
great Officer of State who is sometimes to be joined with the Legislature, and
sometimes to administer the Government.”48 Like Gerry and Mason, Lee
expressed trepidation over an officer that coexisted in the Legislative and
Executive Branches.49 Pennsylvanian Antifederalists voiced Lee’s concerns at
the state convention, denouncing the Vice President as “a useless officer.”50
In response, Pennsylvanian Chief Justice Thomas M’Kean acknowledged:
“Perhaps the government might be executed without [the Vice President].”51
M’Kean then countered, insisting: “[T]here is a necessity of having a person to
preside in the Senate, to continue a full representation of each state in that
body.”52 M’Kean analogized the Vice President to “[t]he chancellor of England . . . a judicial officer; [who] sits in the House of Lords.”53 By favoring the
intermingling between the branches, M’Kean articulated the hybrid vision of the
vice presidency. M’Kean also touched upon the practicality of the Vice President’s position. By having a separate office oversee the Senate, no state would
have to forsake one of its senators to serve as the presiding officer; each state
was still guaranteed two representatives within the Senate chamber. The Vice
President’s interconnection between the Senate and the President was to be favored. James Wilson further advanced the hybrid model, reminding the delegates that several state constitutions mix legislative, executive, and judicial
powers.54
B. CONNECTICUT
A majority of the proconstitutional forces in Connecticut, including former
Convention delegates Ellsworth and Sherman, viewed the Vice President as a
wholly legislative official. Writing in the Connecticut Courant a few weeks
prior to the state convention, future Supreme Court Chief Justice Ellsworth
assured readers that: “The vice-president is not an executive officer while the
president is in discharge of his duty, and when he is called to preside his
legislative voice ceases. In no other instance is there even the shadow of
48. Letter from Richard Henry Lee to Doctor William Shippen, Jr. (Oct. 2, 1787), in 2 THE LETTERS
RICHARD HENRY LEE 443 (James Curtis Ballagh ed., 1914).
49. See id.
50. See 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL
CONSTITUTION 531 (Washington, Jonathan Elliot ed., 2d ed. 1836) [hereinafter Elliot II].
51. Id. at 538.
52. Id.
53. Id.
54. See id. at 504–05.
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blending or influence between the two departments.”55 Only in the event of the
President’s removal would the Vice President abandon his position as President
of the Senate and enter the Executive Branch. A year later, amidst the first
presidential election, Roger Sherman reiterated his opinion from the Constitutional Convention: “The Vice-President while he acts as President of the Senate
will have nothing to do in the executive department . . . .”56 In response to
claims that the Vice President would be partial towards his home state, Sherman
reasoned that the Vice President, as a national figure, would implement his
“casting vote as one who represents all the states.”57
C. MASSACHUSETTS
Like Richard Henry Lee, Elbridge Gerry issued letters in his campaign
against the Constitution. Writing to the Massachusetts Legislature, Gerry repeated his concerns from the Constitutional Convention. “[T]he Executive is
blended with and will have an undue influence over the Legislature,” he
wrote.58 Here, Gerry conceived of the Vice President as an executive official,
the source of the blending. For Gerry, the Executive Branch’s “undue influence”
in the Senate likely arose from a combination of the President’s legislative veto
and the Vice President’s casting vote.59
Throughout the Massachusetts ratifying convention, James Bowdoin attempted to sufficiently respond to Gerry. However, the Federalist delegate was
unsure how to characterize the vice presidency. Bowdoin first declared that the
legislative and executive power of the national government “resides [in the]
President, Vice-President, Senate, and Representatives.”60 Yet, Bowdoin did not
specify where the Vice President fell within that system of power (legislative or
executive). In another speech, Bowdoin endorsed the executive vision of the
vice presidency by stressing the parallels between the Vice President and the
Lieutenant Governors. “The President and Vice-President answer to offices of
the same name in some of the states and to the office of governor and
lieutenant-governor in most of the states [including Massachusetts],”61 he declared. Finally, Bowdoin touched upon the hybrid conception of the vice
presidency by focusing on the Senate as both “a legislating, and, at the same
55. Oliver Ellsworth, A Landholder, CONN. COURANT, Dec. 3, 1787, in THE FEDERALIST AND OTHER
CONSTITUTIONAL PAPERS 573 (Chicago, Albert, Scott & Co., E.H. Scott ed., 1894).
56. Roger Sherman, A Citizen of New Haven, NEW HAVEN GAZETTE, Dec. 25, 1788, in THE
FEDERALIST AND OTHER CONSTITUTIONAL PAPERS, supra note 55, at 613.
57. Id.
58. Letter from Elbridge Gerry to the Massachusetts Legislature (Oct. 18, 1787), TEACHINGAMERICANHISTORY.ORG, http://teachingamericanhistory.org/library/document/elbridge-gerrys-objections-letter-tomassachusetts-legislature/ (last visited Jan. 17, 2016).
59. See id. Ironically, despite all his hemming and hawing over the vice presidency, Gerry would
serve as the nation’s fifth Vice President under James Madison.
60. Elliot II, supra note 50, at 85.
61. See id. at 127.
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time, an advising body to the executive.”62 Bowdoin’s uncertainty over how to
approach the Vice President was representative of the confusion surrounding the
office and its place in the Constitution.
D. VIRGINIA
With New Hampshire’s ratification of the Constitution in June of 1788, the
document obtained its required ninth state to enter into effect.63 However, in
order for the Union to survive, Federalists had to convince Virginia—the most
populous state—to ratify, a difficult task given the prevalence of prominent
Antifederalists in the state as well as the power Virginia enjoyed under the
Articles of Confederation.64 As in other states, the vice presidency soon became
a sticking point between the Federalists and Antifederalists during the state
ratifying convention.
Fittingly, George Mason was the first delegate to direct his colleague’s
attention to “the Vice-President . . . an unnecessary . . . dangerous officer.”65 Mason warned against the “mixed and incorporated” Legislative and Executive
Branches.66 He framed the Vice President as an Executive Branch minion,
predicting that, “[the Vice President] will be made a tool of in order to bring
about his own interest, and aid in overturning the liberties of his country.”67
Somewhat prophetically, Mason worried about the lack of democratic accountability that would arise in the event of a President dying early in his term.68
There would be no “speedy election,” and the Vice President would remain in
power until the next election cycle.69 Mason even feared that an influential Vice
President would cancel elections, grasping on to power in the event of his
predecessor’s death.70
62. Id.
63. U.S. CONST. art. VII; see also RATIFICATION OF THE FEDERAL CONSTITUTION BY THE STATE OF NEW
HAMPSHIRE, reprinted in 2 DOCUMENTARY HISTORY OF THE CONSTITUTION 141–44 (Washington, Dep’t of
State ed., 1894), https://ia800300.us.archive.org/34/items/documentaryhist01statgoog/documentaryhist
01statgoog.pdf.
64. Under the Articles of Confederation, large states such as Virginia retained significant power due
to the minimal centralized authority afforded to Congress. See ARTICLES OF CONFEDERATION of 1781, art.
II. Throughout the Founding Era, Virginia maintained significant power and influence in affecting
national decisions; failure to achieve the Constitution’s ratification in Virginia would likely mean a
Federalist defeat in New York and elsewhere. See Richard Labunski, The Second Convention Movement, 1787–1789, 24 CONST. COMMENT. 567, 567–68 (2007) (“Virginia was the largest state . . . and of
immense political importance.”).
65. 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION
486 (Washington, Jonathan Elliot ed., 2d ed. 1836) [hereinafter Elliot III].
66. Id. at 487.
67. Id.
68. See id. Such an event occurred in 1841, when President William Henry Harrison died after just
four weeks in office. See John Tyler, HISTORY, http://www.history.com/topics/us-presidents/john-tyler
(last visited Jan. 12, 2016). Vice President John Tyler would assume the presidency for the remaining
three years and eleven months. See id.
69. Elliot III, supra note 65, at 487.
70. See id.
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James Monroe also portrayed the Vice President as an executive official
needlessly intruding into the affairs of the Senate, a body competent enough to
“elect a president [to preside over sessions] who would have no dangerous
influence.”71 Similarly, William Grayson characterized the Vice President under
the executive model. Grayson feared the President could utilize the Vice
President to obtain “a good understanding with the Senate.”72 This “good
understanding” could promote corruption, enabling the executive to evade
“discovery of his misdeeds.”73 Based on these arguments, the majority of
Virginian Antifederalists viewed the Vice President as an executive official
overreaching into the legislature.
Madison provided little clarification. Like Wilson and Sherman, he appealed
to the Vice President’s status as a nationally elected figure to stave off claims of
corruption.74 Responding to Grayson’s concerns, Madison insisted that the
Senate’s impeachment power functioned as the “great security” against presidential or vice presidential misdeeds.75 Both elected officials would be susceptible
to a trial if suspected of wrongdoing.76 By conjoining the President and Vice
President, Madison also promoted the executive model of the vice presidency.
E. NEW YORK
Like Virginia, a Federalist victory in New York was crucial to maintain the
Union.77 Also like Virginia, New York harbored significant Antifederalist sentiments, particularly in the northern and western parts of the state—specifically,
Albany and Montgomery Counties.78 New York was also home to two of the
most prominent Antifederalists writers: “Cato” (the powerful New York Governor George Clinton) and “Brutus” (Constitutional Convention delegate Robert
Yates).79 Countering Cato and Brutus was Federalist essayist “Publius” (Alexan-
71. See id. at 489–90. Monroe posited, “The Vice-President is . . . unnecessary . . . . I can see no
reason for such an officer.” Id.
72. Id. at 491.
73. See id.
74. See id. at 487.
75. Id. at 498.
76. Id.
77. See Teaching with Documents: The Ratification of the Constitution, NAT’L ARCHIVES, http://www.
archives.gov/education/lessons/constitution-day/ratification.html (last visited Jan. 12, 2016) (“[T]he key
States of Virginia and New York were locked in bitter debates. Their failure to ratify would reduce the
new union by two large, populated, wealthy states, and would geographically splinter it.”).
78. Ratification of the US Constitution in New York, 1788, GILDER LEHRMAN INST. OF AM. HIST.,
https://www.gilderlehrman.org/history-by-era/creating-new-government/resources/ratification-us-const
itution-new-york-1788 (last visited Jan. 12, 2016) (referring to a special printing of the Constitution
containing George Washington’s letter of transmittal to the Continental Congress that was distributed to
New Yorkers in the northern counties of Albany and Montgomery).
79. Teaching with Documents: The Ratification of the Constitution, supra note 77 (“In New York,
Governor George Clinton expressed these Antifederalist concerns in several published newspaper
essays under the pen name Cato.”); Key Figures in the Ratification of the Constitution: Robert Yates,
TEACHINGAMERICANHISTORY.ORG, http://teachingamericanhistory.org/ratification/people/yates/ (last visited Jan. 12, 2016) (“Yates continued to attack the Constitution in a series of letter signed ‘Brutus’ and
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der Hamilton, James Madison, and John Jay). Toward the later phases of the
ratification debate, both Cato and Publius directed their focus on the vice
presidency.80
In his November 1787 address to the citizens of New York, Cato insisted:
“The establishment of a vice-president is as unnecessary as it is dangerous. This
officer, for want of other employment, is made president of the senate, thereby
blending the executive and legislative powers.”81 Rejecting Cato’s hybrid model,
Publius, in Federalist No. 68 (Hamilton), advanced the executive model of the
vice presidency.82 Because the election of the Vice President paralleled that of
the President’s, Publius argued that the office should be viewed as predominately within the Executive Branch.83 Furthermore, the Vice President’s potential to wield “the supreme executive magistracy” justified viewing the office as
external to the legislature and explained the Constitution’s “mode of elect[ing]”
the Vice President.84
Hamilton additionally claimed that a separate officer, outside of the legislature, was necessary to preside over the Senate for the practical purposes of
impartiality and breaking ties.85 Furthermore, Hamilton was concerned that
forcing a senator to become the presiding officer (and thereby only have a vote
in instances of a tie) would deny that particular state full representation in
the Senate.86 He then commented on the many similarities between New
York’s Lieutenant Governor and the Vice President: “We have a LieutenantGovernor . . . who presides in the Senate, and is the constitutional substitute for
the Governor . . . similar to . . . the Vice-President.”87 Finally, Hamilton’s inclusion of the vice presidency within his essay on executive power indicated that
he viewed the Vice President as an executive officer.
‘Sydney’ and voted against ratification at the Poughkeepsie convention.”). Despite his critiques against
the U.S. Constitution, Brutus (Yates) failed to direct his attention to the vice presidency in his sixteen
essays. See generally Gordon Lloyd, Ratification of the Constitution: Brutus Timeline, TEAHINGAMERICANHISTORY.ORG, http://teachingamericanhistory.org/ratification/timeline-brutus/ (last visited Jan. 12, 2016)
(a collection of Brutus’ works). Brutus did, however, republish George Mason’s objections to the
Constitution, which contained Mason’s attacks on the vice presidency. See Brutus on Mason’s Objections, TEACHINGAMERICANHISTORY.ORG, http://teachingamericanhistory.org/library/document/brutus-onmasons-objections/ (last visited Jan. 12, 2016).
80. Although barely discussed at the actual convention, the vice presidency was mentioned in
several proposed amendments included with New York’s ratification of the Constitution. One amendment permitted only “natural born Citizens, or such as were Citizens on or before the fourth day of July
one thousand seven hundred and seventy six . . . [to be] eligible to the Places of President and Vice
President.” 2 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 63, at 197–98.
81. George Clinton, To the Citizens of New York, N.Y.J., Nov. 8, 1787, in THE FEDERALIST AND OTHER
CONSTITUTIONAL PAPERS, supra note 55, at 628.
82. THE FEDERALIST NO. 68, at 376 (Alexander Hamilton) (Chicago, Albert, Scott & Co., E.H. Scott
ed., 1894).
83. Id.
84. Id.
85. See id.
86. See id.
87. Id.
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F. NORTH CAROLINA
Like Hamilton, the pro-Constitution forces in North Carolina advanced the
executive model of the vice presidency. On the fourth day of the convention,
David Caldwell questioned: “How can all the legislative powers . . . be vested in
the Congress, if the Vice-President is to have a vote in case the Senate is equally
divided?”88 Archibald Maclaine addressed Caldwell’s concerns by minimizing
the Vice President’s impact on the Senate and reiterating the office’s link to the
executive. “[T]he Vice-President is to have no acting part of the Senate,”
Maclaine asserted, and “there is no danger to be apprehended from him in
particular, as he is to be chosen in the same manner with the President.”89
Seizing on Maclaine’s point, William Davie—like Madison and Hamilton—
stressed the national character of the Vice President. “[F]rom the nature of his
election and office, he represents no one state in particular, but all the states,”
Davie declared.90 “He is . . . the officer and representative of the Union.”91
Again by drawing parallels between the President and Vice President in terms
of their national appeal, Davie and Maclaine presented the Vice President as
predominately an executive official who only wielded “a mere casting vote”
over the Senate.92 Maclaine further described the Vice President as an arm of
the Executive Branch during a discussion about impeachment. As Maclaine
rationalized, it would be improper for the Vice President to preside over
the President’s impeachment trial given the Vice President’s role as an executive
official and because “the Vice-President might be connected . . . in the same
crime.” 93 Although a dangerous thought, the notion of the President and Vice
President conspiring together furthered the view that the Vice President was
mainly an executive official.
Overall, the arguments surrounding the vice presidency during the ratification
debates resulted in differing conceptions of the office. Indeed, even the most
prominent American statesmen, many of whom drafted the Constitution, failed
to reach a consensus over the vice presidency. It still remained unclear whether
the vice presidency would become a legislative, executive, or hybrid official.
Seizing upon this ambiguity, the first vice presidents of the United States would
play a substantial role in shaping the contours of the vice presidency. In an
attempt to combat against irrelevancy, the early vice presidents either pursued
the hybrid, legislative, or executive model to obtain influence either with their
president or the Senate. As Part IV will explore, emulating different models led
to varying results.
88. 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION
26 (Washington, Jonathan Elliot ed., 2d ed. 1836) [hereinafter Elliot IV].
89. Id. at 42.
90. Id. at 43.
91. Id.
92. Id. at 42.
93. Id. at 44.
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IV. THE VICE PRESIDENCIES OF THE EARLY REPUBLIC
From reviewing biographical sketches and examining the Congressional
record, I determined that the first four vice presidents would function as strong
examples of either the hybrid or legislative model. I used a similar approach in
selecting the examples for the executive vice presidency. Criteria that I focused
on included: (1) whether the vice president expressed views about the constitutional nature of his office; (2) whether the vice president was presented with
opportunities to utilize his casting vote in the Senate; (3) how the vice president
operated as President of the Senate and whether there was any commentary
from senators about the vice presidency performing the duties of presiding
officer; and (4) whether there were sources discussing the vice president’s
interactions and relationship with the president.
A. THE HYBRID MODEL
1. John Adams (1789–1797)
At first, Vice President Adams viewed himself as neither a member of the
Executive nor the Legislative Branch. In his first address to the Senate, Adams
declared: “It is not for me to interrupt your deliberations by any general
observations . . . or by recommending, or proposing, any particular measures.”94
Similarly, Adams expressed his initial disconnect from the Washington Administration. “The Constitution has instituted two grand offices,” he wrote to Benjamin Lincoln during the summer of 1789.95 “One . . . is placed at the Head of the
Executive; the other at the Head of the Legislative.”96 Later, Adams commented
that the vice presidency “is totally detached from the executive authority.”97
Over time, however, Adams rejected his sense of detachment and immersed
himself in his legislative duties as presiding officer of the Senate while also
attempting to establish a bond with the Washington Administration.
Forsaking his vow not to interrupt deliberations, Vice President Adams began
to bicker with the senators over the amount of discretion he possessed as the
chamber’s presiding officer. During the early days of the first session, Adams
harangued the senators and attempted to conduct debates concerning President
Washington’s title.98 Adams briefly sparked a crisis when he proposed legislation as President of the Senate. Guarding their power with jealousy, Senate
leaders retaliated, confining Adams’s role to mainly a procedural one and
preventing him from introducing bills or playing an active role in the senatorial
94. S. JOURNAL, 1st Cong., 1st Sess. 15 (1789).
95. Letter from John Adams to Benjamin Lincoln (May 26, 1789), http://founders.archives.gov/
documents/Adams/99-02-02-0580.
96. Id.
97. Letter from John Adams to John Hurd (Apr. 5, 1790), http://founders.archives.gov/documents/
Adams/99-02-02-0906.
98. See JOURNAL OF WILLIAM MACLAY 26–28 (Edgar S. Maclay ed., 1890) [hereinafter MACLAY].
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debates.99
Despite these limitations, the Senate authorized Adams to issue addresses on
behalf of the entire chamber. In his addresses to President Washington, Adams
framed the Senate as an executive council, especially when discussing foreign
policy. For example, in an address to Washington on December 11, 1795,
Adams emphasized the Senate’s desire to collaborate on matters affecting the
Creek Indians, a peace treaty with Morocco, and negotiations with Spain.100
“[W]e shall cheerfully cooperate in every measure,” the address concluded.101
Acknowledging his role as both an executive and legislative official, Adams
routinely signed legislative addresses and documents as “Vice-President of the
United States and President of the Senate.”102 Challenging Adams’s hybrid
model, Antifederalist Senator Maclay stressed, “Sir, we know you not as
Vice-President within this House. As President of the Senate only do we know
you. As President of the Senate only you can sign or authenticate any act of that
body.”103 Despite the Senator’s objections, the practice persisted.
Aside from his legislative functions, Adams forged a link with the Washington Administration despite the lack of explicit executive duties under the
Constitution. Adams occasionally attended Cabinet meetings; Washington at
times solicited Adams’s advice on federal nominees and on foreign affairs
(although rarely). Adams even briefly appeared with Washington during the
President’s 1789 trip to New England.104 In early 1793, Adams wrote that as
Vice President, he “had always Supported [Washington].”105 Most importantly,
Adams wielded his tie-breaking vote to support Federalist causes. For example,
he broke the deadlock over the proposal for the Senate to provide its advice and
consent concerning the removal of presidential appointees.106 Adams voted in
the negative, shielding President Washington from an interfering Senate.107
During his second term as Vice President, Adams again utilized his tie-breaking
vote to ensure Washington’s insistence on neutrality between England and
France. In two crucial votes, Adams voted in favor of an embargo that prohib99. See EDWARD J. LARSON, A MAGNIFICENT CATASTROPHE: THE TUMULTUOUS ELECTION OF 1800,
AMERICA’S FIRST PRESIDENTIAL CAMPAIGN 28 (2007); JEREMY LOTT, THE WARM BUCKET BRIGADE: THE
STORY OF THE AMERICAN VICE-PRESIDENCY 16–17 (2007).
100. Address of the Senate to George Washington (Dec. 11, 1795), in 1 A COMPILATION OF THE
MESSAGES AND PAPERS OF THE PRESIDENTS 178–79 (New York, Bureau of Nat’l Literature, Inc., James D.
Richardson ed., 1897), http://www.gutenberg.org/files/11314/11314.txt.
101. Id. at 179.
102. See, e.g., id.
103. See MACLAY, supra note 98, at 40.
104. See John Adams, 1st Vice President (1789–1797), U.S. SENATE, http://www.senate.gov/
artandhistory/history/common/generic/VP_John_Adams.htm (last visited Jan. 13, 2016).
105. Letter from John Adams to Abigail Adams (Jan. 8, 1793), http://www.masshist.org/digitaladams/
archive/doc?id⫽L17930108ja&hi⫽1&query⫽%22Vice%2.
106. See MACLAY, supra note 98, at 114–16.
107. See id. at 116. Allegedly, Adams used his influence to convince Senator Dalton of Massachusetts to switch his vote to force a tie. See id. at 115–16 (“Dalton rose and said a number of things in the
most hesitating and embarrassed manner. It was his recantation; [he] had just now altered his mind . . . .
The truth, however, was that everybody believed that John Adams was the great converter.”).
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ited the selling of merchandise seized from the ships of peaceful nations.108 He
later used his tie-breaking vote against suspending trade with Great Britain.109
Such votes were viewed by the Federalists as critical to stave off war with Great
Britain.110
Despite Adams’s unpopularity with some senators, the Vice President proved
to be an efficient presiding officer, especially given the absence of any formal
manual detailing parliamentary procedure.111 During Adams’s final days as Vice
President, the Senate issued a report, praising Adams’s “experience, talents, and
virtues . . . [and his] abilities and undeviating impartiality.”112 Moreover, Adams’s sporadic consultations with President Washington, and the use of his
tie-breaking vote to advance Federalist policies, made him the presumed heir
apparent to the presidency (which he obtained in 1796).113 Although the hybrid
model proved promising, it ultimately fell out of favor with the rise of Thomas
Jefferson and the Democratic–Republicans.
B. THE LEGISLATIVE MODEL
1. Thomas Jefferson (1797–1801)
In contrast to the hybrid approach adopted by his predecessor, Jefferson—like
Sherman and Ellsworth—viewed the vice presidency as a purely legislative
official. After finishing a close second in the election of 1796, Vice President
Jefferson made plain that any comingling with the Executive Branch would
violate his constitutional duties. In a letter to Madison, Jefferson remarked: “Mr.
Adams speaks . . . of administering the government in a concurrence with me . . . .
[I]f by that he meant the executive cabinet, both duty and inclination will shut
that door . . . . As to duty, the constitution will know me only as the member of
a legislative body . . . .”114 Jefferson may have been referring to President
Adams’s request to have Jefferson function as a minister to France to achieve
peace, an offer which Jefferson declined.115 Jefferson also refrained from
attending any cabinet meetings, a practice which would continue for the next
108. See 4 ANNALS OF CONG. 66 (1794).
109. Id. at 89–90.
110. See John Adams 1st Vice President, supra note 104.
111. As Presiding Officer, Adams drew upon his knowledge of British parliamentary procedure
to mediate the Senate debates. See Richard Allan Baker, The Senate of the United States: “Supreme
Executive Council of the Nation,” 1787–1800, in 1 THE CONGRESS OF THE UNITED STATES, 1787–1989, at
135, 148 (Joel H. Silbey ed., 1991). Eventually, a formal manual outlining parliamentary procedure for
the Senate would be drafted by Vice President Jefferson. See infra notes 123–24 and accompanying
text.
112. 6 ANNALS OF CONG. 1555 (1797).
113. See Letter from John Adams to Abigail Adams (Jan. 20, 1796), http://www.masshist.org/
digitaladams/archive/doc?id⫽L17960120ja (“I am Heir Apparent you know and a Succession is soon to
take Place.”).
114. Letter from Thomas Jefferson to James Madison (Jan. 22, 1797), in 3 MEMOIR, CORRESPONDENCE, AND MISCELLANIES FROM THE PAPERS OF THOMAS JEFFERSON 346–47 (Boston, Gray & Bowen,
Thomas Jefferson Randolph ed., 1829) [hereinafter THE PAPERS OF THOMAS JEFFERSON].
115. IRVING G. WILLIAMS, THE RISE OF THE VICE PRESIDENCY 25 (1956).
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125 years.116 Writing to Elbridge Gerry, Jefferson reasserted: “I consider my
office as constitutionally confined to legislative functions, and that I could not
take any part whatever in executive consultations, even were it proposed . . . .”117
Indeed, Jefferson’s comments are largely evocative of his strict constructionist
interpretation of the Constitution. Aside from executive succession, the Constitution remained silent on any other Executive Branch duties for the Vice President
to fulfill.
Despite Jefferson’s constitutional arguments for grounding the vice presidency within Article I, Jefferson may have adopted the legislative model due to
party politics. As leader of the Democratic–Republicans, Jefferson disagreed
with Adams and the Federalists on a host of issues such as maintaining
American neutrality in the war between Great Britain and France, the distribution of power between the national government and the states, and the promulgation of the Alien and Sedition Acts. With a Federalist majority in the Senate,
Vice President Jefferson was routinely unable to exert any influence via his
casting vote, which he only used on three separate occasions.118 Nevertheless,
Jefferson exercised the legislative power of the Vice President to his advantage.
As presiding officer, Jefferson gauged the relative strength of the Democratic–
Republican wing and noted Federalists who expressed dissatisfaction with the
Adams Administration. Such vote counting and strategizing was referenced in
letters to colleagues such as Madison,119 Aaron Burr,120 and Edward Rutledge.121 It was also during his time as Vice President when Jefferson directly
criticized the Federalists’ Alien and Sedition Acts in his Kentucky Resolution of
1798.122
116. Calvin Coolidge became the first vice president to regularly attend Cabinet meetings. See David
F. Forte, Vice President, THE HERITAGE GUIDE TO THE CONSTITUTION, http://www.heritage.org/constitution/#
!/articles/2/essays/78/vice-president (last visited Jan. 13, 2016). Reflecting on President Harding’s
invitation to attend the meetings, Coolidge wrote, “[The Vice President] should be in the Cabinet
because he might become President and ought to be informed on the policies of the administration.”
CALVIN COOLIDGE, THE AUTOBIOGRAPHY OF CALVIN COOLIDGE 164 (1929).
117. Letter from Thomas Jefferson to Elbridge Gerry (May 13, 1797), in THE PAPERS OF THOMAS
JEFFERSON, supra note 114, at 351.
118. See SENATE HISTORICAL OFFICE, OCCASIONS WHEN VICE PRESIDENTS HAVE VOTED TO BREAK TIE
VOTES IN THE SENATE 1 (Mar. 13, 2008), http://www.senate.gov/pagelayout/reference/four_column_table/
Tie_Votes.htm; see also Henry Barrett Learned, Casting Votes of the Vice-Presidents, 1789–1915, 20
AM. HIST. REV. 571, 571 n.1 (1915).
119. See Letter from Thomas Jefferson to James Madison (June 1, 1797), in THE PAPERS OF THOMAS
JEFFERSON, supra note 114, at 355 (determining the vote count in the Senate with respect to a Federalist
nominee).
120. See Letter from Thomas Jefferson to Colonel Burr (June 17, 1797), in THE PAPERS OF THOMAS
JEFFERSON, supra note 114, at 357–58 (criticizing Adams for vying for peace with Great Britain and
soliciting Burr’s support in New York).
121. See Letter from Thomas Jefferson to Edward Rutledge (June 24, 1797), in THE PAPERS OF
THOMAS JEFFERSON, supra note 114, at 361–62 (attacking Adams for ruining the country’s “most
respectable character” amongst foreign nations).
122. See Kentucky Resolution—Alien and Sedition Acts, THE AVALON PROJECT, http://avalon.law.yale.
edu/18th_century/kenres.asp (last visited Jan. 13, 2016) (describing the laws as “unconstitutional,”
“unnecessary,” and “obnoxious”).
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Although Vice President Jefferson refused to engage with the Executive
Branch, he remained immersed in his legislative functions. Jefferson’s crowning
achievement as President of the Senate was the completion of his Manual of
Parliamentary Procedure.123 Influenced by authorities on British parliamentary
procedure, the Manual emphasized decorum and order, containing passages
relating to privileges, motions, resolutions, treaties, and even impeachment
proceedings.124 Although not explicitly provided for under the Constitution,
Jefferson’s ability to promulgate such a manual likely derived from his Article I
powers. Regardless of Vice President Jefferson’s successes as President of the
Senate, his lack of interaction with the Executive Branch alienated the Office of
the Vice President from the White House.125 Vice President Jefferson’s constitutional and political arguments for not engaging with the Adams Administration
were later adopted by his immediate predecessors, undoing Adams’s efforts to
establish a bond between the Vice President and the President. With the
legislative model of the vice presidency established, it quickly became the norm
for the majority of nineteenth-century vice presidents.
2. Aaron Burr (1801–1805)
The ill will between Jefferson and Aaron Burr, generated by the election of
1800,126 compelled Burr to almost immediately pursue the legislative model,
augmenting the institutional isolation of the vice presidency from the Executive
Branch. Rather than consult Burr about federal appointments within Burr’s
home state of New York, Jefferson ignored his Vice President and solicited
advice from George Clinton.127 Any influence Vice President Burr hoped to
achieve would have to derive from his role as President of the Senate.128
Burr quickly excelled as President of the Senate, achieving universal praise
for his abilities as a parliamentarian.129 Eventually, Burr employed these skills
123. See Thomas Jefferson, A Manual of Parliamentary Practice: for the Use of the Senate of the
United States, in JEFFERSON’S PARLIAMENTARY WRITINGS: “PARLIAMENTARY POCKET-BOOK” AND A MANUAL
OF PARLIAMENTARY PRACTICE (Wilbur Samuel Howell ed., 1988).
124. See id.
125. See WILLIAMS, supra note 115.
126. See generally LARSON, supra note 99. A few years later, Jefferson declared, “I never indeed
thought [Burr] an honest, frank-dealing man, but considered him as a crooked gun, or other perverted
machine.” Letter from Thomas Jefferson to William Branch Giles (Apr. 20, 1807), in 10 THE WORKS OF
THOMAS JEFFERSON 387 (Paul Leicester Ford ed., 1905).
127. See Letter from Thomas Jefferson to George Clinton (May 17, 1801), in 9 THE WORKS OF
THOMAS JEFFERSON 254–55 (Paul Leicester Ford ed., 1905). Within the letter, President Jefferson
remarked: “[T]here is no one whose opinion would command with me with greater respect than yours,
if you would be so good as to advise me . . . .” Id. at 255.
128. See NOBLE E. CUNNINGHAM, JR., THE PROCESS OF GOVERNMENT UNDER JEFFERSON 16 (1978).
David O. Stewart also discusses Burr’s general decline in influence among Republicans in New York.
See DAVID O. STEWART, AMERICAN EMPEROR: AARON BURR’S CHALLENGE TO JEFFERSON’S AMERICA 29
(2011).
129. See WILLIAM PLUMER, MEMORANDUM OF PROCEEDINGS IN THE UNITED STATES SENATE 1803–1807, at
74–75 (Everett Somerville Brown ed., 1923) (“[Burr] preserves good order, silence . . . [and] confines
the speaker to the point.”).
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to collude with Federalist senators and prevent the Jeffersonians from killing the
much loathed Judiciary Act of 1801, which had enabled President Adams to
pack the judiciary with Federalist appointees.130 On January 27, 1802, Burr
employed his tie-breaking vote to halt the repeal of the Act, seeking instead to
have the Act amended to make it more palatable.131 Burr’s tactics of countering
the administration echoed Vice President Jefferson’s earlier machinations. Furthermore, Burr presided over the impeachment trials of Federalist Judge Pickering of New Hampshire132 and Supreme Court Justice Samuel Chase.133 Although
Pickering was removed from office, “there [was] not a Constitutional majority
of votes finding Samuel Chase . . . guilty,”134 further hindering the Jeffersonians’ attempts to dismantle the Federalist-packed judiciary.
Deprived of influence within the administration (and facing indictment for
the murder of Alexander Hamilton),135 Burr abandoned hope of being renominated for Vice President. By President Jefferson’s second term, the vice presidency seemed to languish in the Legislative Branch, playing no active role in
the Executive. Moreover, the enactment of the Twelfth Amendment reduced the
office’s prestige. By having electors complete separate ballots when voting for
President and Vice President,136 the national perception of the vice presidency
diminished. The office would no longer be occupied by the second-mostqualified individual to serve as President. Rather, national parties and their
respective leaders dictated who appeared on the ballot. Under the Twelfth
Amendment, therefore, presidents and their vice presidents typically came from
the same party. There would be no more Adams–Jefferson or Jefferson–Burr
pairings. With parties controlling the nomination mechanism, the vice presidency, for much of the antebellum period, became occupied by political hacks
or by elder statesmen in the twilight of their political careers—like George
Clinton.137
130. See The Judiciary Act of 1801: “An Act to Provide for the More Convenient Organization of the
Courts of the United States,” FED. JUDICIAL CTR., http://www.fjc.gov/history/home.nsf/page/landmark_
03.html (last visited Jan. 14, 2016).
131. See 7 ANNALS OF CONG. 149–50 (1802).
132. See 8 ANNALS OF CONG. 315–16 (1803).
133. Such power is afforded to the Senate. U.S. CONST. art. I, § 3, cl. 6 (“The Senate shall have the
sole Power to try all Impeachments.”); see also United States v. Nixon, 506 U.S. 224, 237–38 (1993)
(affirming the Senate’s sole discretion over impeachment procedures).
134. 14 ANNALS OF CONG. 669 (1805).
135. See STEWART, supra note 128, at 50 (“[Burr] learned that a grand jury in New Jersey had also
indicted him for murder.”).
136. See U.S. CONST. amend. XII.
137. Clinton’s name had long been circulated for consideration as Vice President. See Letter from
Abigail Adams to John Adams (Dec. 15, 1788), http://www.masshist.org/publications/apde2/view?id⫽
ADMS-04-08-02-0163. In the letter, Abigail Adams mentioned that Clinton had interest amongst
Antifederalists in New York and Virginia. Id. At the age of sixty-five, Clinton was elected Vice
President under Jefferson in 1804 and would also serve as James Madison’s Vice President until his
death in 1812; Clinton was the first Vice President to die in office. See George Clinton, ENCYCLOPEDIA
BRITANNICA, http://www.britannica.com/biography/George-Clinton-vice-president-of-United-States (last
visited Jan. 14, 2016).
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3. George Clinton (1805–1812)
After years of being considered for the vice presidency, George Clinton, the
longtime governor of New York, finally obtained the office in 1805. Since 1788,
Antifederalists had floated Clinton’s name for the vice presidency to challenge
Adams and to mesh the Antifederalist strongholds in Virginia and New York.138
The Clinton of the late 1780s had arguably envisioned himself adopting the
executive model of the Vice President. As Vice President, Clinton “could advise
[his former military commander] Washington, support constitutional amendments . . . and perhaps be heir apparent when Washington decided to retire.”139
Such hopes of functioning as the President’s confidante, however, were dashed
during Clinton’s tenure under Presidents Jefferson and Madison. Despite Jefferson’s previous consultations with him, Clinton was shunned from the administration as Jefferson relied more on the advice of Secretary of State Madison and
Secretary of the Treasury Albert Gallatin (also from New York).140
Isolated by the President, Clinton sought to embrace the legislative model.
His efforts, however, were largely unsuccessful. Compared to Burr and Jefferson, who were praised for their knowledge of parliamentary procedure, Clinton
was ineffectual as a presiding officer. “[A] worse choice than Mr. Clinton could
scarcely have been made,” Senator John Quincy Adams declared.141 However,
like Vice Presidents Jefferson and Burr, Clinton monopolized his role as President of the Senate to obstruct presidential policies and to hinder the administration that insulated him. Frustrated with Jefferson’s embargo (which was
economically ruinous for northern commercial states),142 Clinton read diplomatic memos during an open session of the Senate despite them being marked
confidential.143 As Madison’s Vice President, Clinton scuttled efforts to recharter the Bank of the United States, which had earned the administration’s
support.144 On February 20, 1811, Clinton revolted against the administration
138. See Letter from Abigail Adams to John Adams, supra note 137.
139. JOHN P. KAMINSKI, GEORGE CLINTON: YEOMAN POLITICIAN OF THE NEW REPUBLIC 165 (1993).
140. See id. at 279, 284; The Montpelier Found., Albert Gallatin, JAMES MADISON’S MONTPELIER,
https://www.montpelier.org/james-and-dolley-madison/james-madison/politician-and-statesman/
colleagues/albert-gallatin (last visited Jan. 25, 2016). Jefferson’s reliance on Madison and Gallatin as
his key counselors persisted throughout his administration. See The Montpelier Found., supra (“Gallatin and secretary of state Madison were Jefferson’s closest advisors.”).
141. 1 MEMOIRS OF JOHN QUINCY ADAMS 382–85 (Philadelphia, J. B. Lippincott & Co., Charles
Francis Adams ed., 1874). Adams further wrote: “Mr. Clinton is totally ignorant of all the most
common forms of proceeding in [the] Senate . . . . His judgment is neither quick nor strong . . . .” Id. at
385.
142. See KAMINSKI, supra note 139, at 278–79; see also Letter from George Clinton to Theodorus
Bailey (Mar. 25, 1808), http://www.nbclearn.com/portal/site/k-12/flatview?cuecard⫽32924 (describing
how the embargo has produced “much distress to all Classes of People”).
143. See 18 ANNALS OF CONG. 150–51 (1808); 1 MEMOIRS OF JOHN QUINCY ADAMS, supra note 141, at
516. In his address, President Jefferson clearly stated, “[the documents] are communicated so far
confidentially.” 18 ANNALS OF CONG. 150 (1808). Clinton never acknowledged that the papers were
marked confidential. See 1 MEMOIRS OF JOHN QUINCY ADAMS, supra note 141, at 516.
144. See Letter from James Madison to Charles J. Ingersoll (June 25, 1831), in Elliot IV, supra note
88, at 617. Madison later accused Clinton of abusing his vote to strike down the Bank, claiming that
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by voting against the Bank’s recharter.145 Doubtful of the Bank’s constitutionality, Clinton felt obligated “by a sense of duty” to strike down the bill.146
Secretary Gallatin later wrote: “From my experience both when Mr. Jefferson
was made Vice-President and when, in 1808, Mr. Clinton was re-elected to the
same office, I know that nothing can be more injurious to an Administration
than to have in that office a man in hostility with that Administration . . . .”147
Overall, Clinton followed the legislative model of the vice presidency, thus
increasing the gulf between the Vice President and the Executive Branch.
Interestingly, an element of subversion had crept into this conceptualization of
the vice presidency. Clinton, like his predecessors Burr and Jefferson, resisted
his presidents’ policies and, through this subversive conduct, was able to have
some impact. Commenting on the late Vice President’s legacy in 1812, Gouverneur Morris noted: “[T]o share in the measures of administration was not
[Clinton’s] part. To influence them was not in his power.”148 Essentially, the
predictions of Sherman and Ellsworth back in the late 1780s proved correct.149
The vice presidency’s constitutional nature would be predominately legislative.
Indeed, the legislative model of the vice presidency cast a long shadow on
nineteenth-century vice presidents and characterized the office during the tenures of Elbridge Gerry, Daniel Tompkins, and John C. Calhoun. It would not be
until the 1830s when the executive model of the vice presidency would finally
emerge.
C. THE EXECUTIVE MODEL
1. Martin Van Buren (1833–1837)
The friendship between Andrew Jackson and Martin Van Buren during the
early 1830s enabled Vice President Van Buren to pursue the executive model of
the vice presidency as envisioned by Hamilton. Grateful for Van Buren’s
counsel as his Secretary of State, Jackson expressed his desire for the New
Yorker to serve as Vice President. “If I am reelected . . . the people in mass
would take you up and elect you Vice President . . . . I am . . . anxious to have
you near me,” Jackson wrote.150
Following Jackson’s successful reelection with Van Buren on the ticket, Van
Buren proceeded to function almost as a modern vice president. Indeed, Van
Clinton simply “disapproved [of] the plan” rather than possessed a valid constitutional argument
against it. Id. “On a simple question of constitutionality [of the Bank],” Madison recalled, “there was a
decided majority in favor of it.” Id. (emphasis in original).
145. See 22 ANNALS OF CONG. 346–47 (1811).
146. Id. at 347.
147. Letter from Albert Gallatin to Walter Lowrie (Oct. 2, 1824), in 2 THE WRITINGS OF ALBERT
GALLATIN 296 (Philadelphia, J. B. Lippincott & Co., Henry Adams ed., 1879).
148. KAMINSKI, supra note 139, at 293.
149. See supra notes 55–57 and accompanying text.
150. Letter from Andrew Jackson to Martin Van Buren (Dec. 17, 1831), in 2 ANNUAL REPORT OF THE
AMERICAN HISTORICAL ASSOCIATION FOR THE YEAR 1918: THE AUTOBIOGRAPHY OF MARTIN VAN BUREN 508
(John C. Fitzpatrick ed., 1920) [hereinafter VAN BUREN AUTOBIOGRAPHY].
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Buren devoted the bulk of his time serving as advisor to the President, aiding in
speech writing and directing foreign policy.151 Although unable to actively
debate the National Bank issue on the Senate floor, Van Buren coordinated with
Jackson to appoint Senator Wright to speak on behalf of the administration.152
Additionally, Van Buren would implement his tie-breaking vote to enact Jacksonian-backed measures such as the July 1836 gag rule on antislavery petitions.153
By cooperating with Jackson, Van Buren secured the nomination for President
in his own right in 1836.
Overall, although the executive model of the vice presidency rarely occurred
in the nineteenth century, Van Buren’s precedent foreshadowed the modern
relationship between the President and the Vice President. Almost immediately
after, the Whigs and Democrats sought to ensure that their vice presidential
candidates emulated Vice President Van Buren’s executive model.
2. George M. Dallas (1845–1849)
The disastrous presidency of “His Accidency” John Tyler provided a significant reminder that the Vice President was a heartbeat away from the nation’s top
office. After assuming the powers of the President following the death of Whig
President Harrison, Tyler proceeded to dismantle Henry Clay’s ambitious agenda,
including Clay’s attempt to recharter the Bank of the United States.154 Learning
from the Tyler Presidency, Democratic Party bosses, after extensive deliberation, selected the affable, qualified, and loyal George M. Dallas to serve as
James Polk’s running mate in the 1844 election.155
Following Van Buren’s precedent, Dallas acted upon the executive model of
the vice presidency. During the early days of the administration, Dallas suggested cabinet nominees and potential appointees.156 Aside from a good working relationship with each other, Polk ensured that Dallas remained “au courant
with affairs of state, both foreign and domestic.”157 In return, Dallas supported
151. See JOHN NIVEN, MARTIN VAN BUREN: THE ROMANTIC AGE OF AMERICAN POLITICS 368–72 (1983).
152. See VAN BUREN AUTOBIOGRAPHY, supra note 150, at 729–30. Van Buren reportedly informed
Wright, “The President, as well as myself, feels that his real views have not, thus far, been sufficiently
developed on the floor . . . . We are desirous that a fuller and more authoritative exposition of them
should be made . . . and that you [Wright] should make it.” Id. at 729.
153. See CONG. GLOBE, 24th Cong., 1st Sess. 522 (1836).
154. John Tyler, Veto Message (Aug. 16, 1841), in 4 A COMPILATION OF THE MESSAGES AND PAPERS OF
THE PRESIDENTS, 1789–1897, at 63–65 (Washington, Gov’t Printing Office, James D. Richardson ed.,
1897). It would be difficult to categorize what model Vice President Tyler pursued because he was only
in the office for about a month before succeeding to the presidency on April 4, 1841. John Tyler,
HISTORY, http://www.history.com/topics/us-presidents/john-tyler (last visited Jan. 14, 2016).
155. See WILLIAMS, supra note 115, at 52 (describing how the Democrats eventually selected the
public-service-oriented Dallas after the party’s first choice for Vice President declined the nomination).
156. See Letter from G. M. Dallas to James K. Polk (Dec. 15, 1844), in Roy F. Nichols, The Library:
The Mystery of the Dallas Papers I, 73 PENN. MAG. HIST. & BIOGRAPHY 349, 355–59 (1949) (recommending that Polk consider Robert Walker for Secretary of State and advising that Polk refuse to retain any
of his predecessor’s cabinet officers).
157. WILLIAMS, supra note 115, at 52.
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the President on both domestic and foreign policy, coordinating with Senate
leaders to enact legislation on controversial issues such as the tariff and
westward expansion. Indeed, Dallas utilized his influence to secure the ratification of the President’s peace treaty with Mexico.158 Committed to Polk’s
campaign promise of a lower tariff, Dallas forsook his protectionist state of
Pennsylvania and voted in favor of the Walker Tariff of 1846 to break the tie in
the Senate.159 Explaining his vote, Dallas echoed the arguments proffered by
Madison, Maclaine, Davie, and Sherman regarding the national character of the
vice presidency. Because of his position as a “direct agent and representative of
the whole people,” Dallas could not allow the tariff’s “less kindly [impact]” on
his “native commonwealth” to affect his judgment.160 By describing himself as
a national figure like the President, Dallas inherently distinguished his office
from the state-appointed senators. During his closing remarks before the Senate
in 1849, Dallas again asserted his acceptance of the executive model when he
tacitly compared his ability to cast tie-breaking votes to the President’s legislative veto.161 Like Van Buren before him, Vice President Dallas viewed himself
as a national official who resided primarily within the Executive Branch.
After roughly fifty years, the constitutional nature of the vice presidency had
yet to be fully determined. Although the legislative model dominated the early
1800s, the resurgence of the executive model revealed the Vice President’s
greater potential in influencing the national government and laid the foundation
for the office’s eventual transition to the Executive Branch.
Overall, despite their perceived powerlessness, the early vice presidents had
some control over their destinies. Through their ambiguous constitutional role,
the vice presidents were able to achieve some degree of influence and power. As
illustrated by the above examples, a vice president’s decision to pursue an
executive, legislative, or hybrid model stemmed not only from his personal
views about the office, but also from the political climate of the time and that
vice president’s relationship with the sitting president. Although the executive
model seemingly guaranteed the vice presidency the greatest level of influence,
vice presidents who maintained the legislative or hybrid route were also able to
affect national politics—either through functioning as a mediator between the
presidency and the Senate, as seen with John Adams, or through opposing their
president’s policies, as seen with Jefferson, Burr, and Clinton.
158. See CHARLES J. BIDDLE, 1 EULOGY UPON THE HON. GEORGE MIFFLIN DALLAS 36 (1865), https://
archive.org/details/eulogyuponhongeo01bidd.
159. See CONG. GLOBE, 29th Cong., 1st Sess. 1156 (1846); see also WILLIAMS, supra note 115, at
52–53 (explaining the disastrous political repercussions of Vice President Dallas’s vote).
160. See CONG. GLOBE, supra note 159.
161. See CONG. GLOBE, 30th Cong., 2d Sess. 646 (1849) (“A right to vote upon any question pending
before this body, when its members are equally divided, is given to the Vice President by the
Constitution . . . .”).
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CONCLUSION
Although normally deemed an afterthought, the vice presidency is a unique
office from a constitutional perspective and deserves attention. The Vice President’s duality under Articles I and II sets it apart from all other constitutional
officers. Despite the relatively rushed discussions at the Constitutional Convention, the historical record reveals that the vice presidency was extensively
discussed and debated following the Convention’s adjournment. Yet despite the
contests between the Federalists and Antifederalists at the state ratifying conventions, the founding generation was unable to reach a consensus over how to
envision the Office of the Vice President (as with many other parts of the
Constitution).
The historical record also demonstrates that the early vice presidents were not
“insignificant” as Vice President Adams bemoaned back in 1793. Rather, like
the presidency, the contours of the vice presidency were shaped largely by the
individuals who occupied the office. As discussed above, to grapple with the
ambiguous constitutional language surrounding the vice presidency, the legislative, executive, and hybrid models were advanced. The first vice presidents
implemented these models in their efforts to obtain power and influence. The
conception of the vice presidency as a hybrid executive–legislative officer
quickly died following Vice President Adams’s tenure. Rather, the legislative
model of the vice presidency rose to prominence during the early nineteenth
century due in part to the prevalence of earlier state constitutional practices, the
Jeffersonian conception of separation of powers and strict constructionism, and
the political successes of the Democratic–Republicans. Although the Vice President’s transition to the Executive Branch has been said to have originated in the
early twentieth century, the roots of the modern vice presidency can arguably be
traced to the nineteenth-century vice presidencies of Martin Van Buren and
George Dallas, both of whom pursued the executive model and subsequently
reaped a certain degree of power and influence in their presidents’ administrations. Moreover, even vice presidents who found themselves ostracized by their
presidents were able to find a modicum of influence and power in their role as
President of the Senate. As seen with the Jefferson, Burr, and Clinton examples,
vice presidents pursuing the legislative model adopted an element of subversion
that often led to attempts to thwart their presidents’ objectives and goals.
More importantly, the tenures of the early vice presidents created a lasting
impact that is still felt in today’s political system. Jefferson, Burr, and Clinton
underscored the havoc and headaches a disloyal vice president could wreak on
an administration. Conversely, Martin Van Buren and George Dallas demonstrated the value of having a vice president aligned with the views and objectives of his president. Over time, this conception of a vice president grounded in
the Executive Branch prevailed. Today it would be almost impossible to imagine a sitting vice president engaging in the legislative model and potentially
using his or her power as President of the Senate to scuttle an administrationbacked bill or nominee.
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As the 2016 presidential election draws closer, the subject of the vice
presidency will only gain traction. Indeed, given the advanced ages of the
current presidential front-runners, pundits, party officials, and the public will
arguably pay greater attention to the issue of presidential succession and the
vice presidential candidates.162 Due to the overall increase in the power and
influence of the Vice President over the past twenty years, observers of the 2016
election will additionally focus on how potential vice presidential candidates
will complement their running mates in terms of experience and ideology.
Throughout the most recent presidential administrations and election cycles,
presidents and presidential nominees have come to rely on their vice presidential counterparts to attract certain demographics, assuage concerns about political inexperience in certain arenas, and function as mouthpieces for the
administration.163 The twenty-first-century presidency requires a twenty-firstcentury vice presidency to assist with all of the expansive duties and responsibilities that now come with the Office of the President.
For too long the vice presidency has been the butt of many political punch
lines. Attention should and must be paid to this office. Although the Vice
President’s only explicit constitutional duties involve presiding over the Senate
and stepping into the presidency in the event of death or removal, a Vice
President should be immersed in the functions of the Executive Branch in
case he or she is unexpectedly thrust into the nation’s highest office. Keeping
the Office of the Vice President confined to the legislature, when that office is a
heartbeat away from the presidency, runs counter to the principles of effective
governance and accountability to the electorate. As John Adams remarked, “I
am Vice-President. In this I am nothing, but I may be everything.”164 Rather
than permit the vice presidency to wallow in obscurity and powerlessness, it is
crucial not to overlook the “second situation under the Constitution of the
United States.”165
162. At the time of this Note’s drafting, several prominent candidates from both parties are in their
late sixties and early seventies. For example, front-runner Donald Trump is sixty-nine. Democratic
front-runner Hillary Clinton is sixty-eight. Bernie Sanders is seventy-four. Discussions about potential
vice-presidential candidates started as early as spring of 2014. See, e.g., Sean Sullivan, Handicapping
the 2016 Vice Presidential Field. Yes, You Read That Right, WASH. POST (Mar. 7, 2014), https://www.
washingtonpost.com/news/the-fix/wp/2014/03/07/handicapping-the-2016-vice-presidential-field-yesyou-read-that-right/.
163. This is effectively demonstrated in the dynamic between President Obama and Vice President
Joe Biden. Vice President Biden brought to the Obama Administration the ability to appeal to
middle-class white voters and years of Senate experience (especially in foreign policy). See Ewen
MacAskill, US Election: Biden Shows Why Obama Chose Him As a Running Mate, GUARDIAN (Aug. 28,
2008, 1:31 AM), http://www.theguardian.com/world/2008/aug/28/uselections2008.joebiden1. A vice
president acting as spokesperson for the administration can sometimes have significant political
consequences. For example, reports indicate that Vice President Biden’s endorsement of same-sex
marriage compelled the Obama Administration to hasten its stance on the issue in 2012. See, e.g., Edward
Isaac-Dovere, Book: W.H. Scrambled After Biden Gay Marriage Comments, POLITICO (Apr. 16, 2014, 7:53
AM), http://www.politico.com/story/2014/04/joe-biden-gay-marriage-white-house-response-105744.
164. MACLAY, supra note 98, at 3.
165. 6 ANNALS OF CONG. 1550 (1797).