The Constitution we have… (continued)

September 14, 2011

3) But how did it come about that a lame-duck Congress – the one with a Federalist majority, which had just been resoundingly overturned – came to be responsible for not only counting and certifying the electoral vote, but also stepping in and picking the winners if no one had the necessary majority? I used to think it was a simple straightforward matter of timing; whereas now, under the 20th Amendment, the Congressional term starts on January 3 and the Presidential term on the 20th, in those days all terms started on March 4. Well, that’s true as far as it goes, but why? I assumed that the Constitution had originally specified the March date, but no, it seems that was introduced more or less by accident; all the Constitution said was that Congress was to meet on the first Monday in December every year unless it voted to change the date. The original intent seems to have been that the states would arrange elections in the fall of every even-numbered year, and the new Congress would convene that December. (It occurs to me that this meshes well with the provision later adopted by the second Congress, that the Electors would cast their ballots on the first Wednesday in December. If things had gone as originally intended, the new Congress would have been in place by then, to receive and inspect the ballots, hold its own election if no one had the necessary majority, and have a new President in office by maybe sometime early January.)

But by the time there were enough ratifications to put the Constitution into effect, it was already September of 1788, and when the old Continental Congress met for the last time to certify the result and arrange the transition, they considered it too late to get the new Congress elected to meet that year. At the same time, no one wanted to wait till the following December, so they split the difference and came up with the March date for the first Government under the Constitution to take office. As it happened the new Congress wasn’t able to assemble a quorum till April 6, when they counted the electoral votes which, to no one’s surprise, unanimously elected George Washington.

Well, a month wasn’t a long time in those days, so no one saw a problem in Congress pre-dating the start of its own term and Washington’s to March 4, the date originally intended; but then, because the President’s term was specified as 4 years, and their own as 2 for Representatives and 6 for Senators, subsequent Presidents and Congresses could not take office before that date (in the odd-numbered, non-election year), and the country was stuck with a lame-duck period unlike anything else in the modern world; worse yet, they never saw fit to provide (except sometimes on an ad hoc basis) an alternative to the December date for Congress to actually convene, so we were stuck with a really absurd rhythm in which a Congress would be elected in the fall of an even-numbered year, but not be able to meet (unless the old Congress specifically summoned them, which happened occasionally) until the  December of the next year; it would then have a “long session” which would last as long into the year after that as needed, i.e. the next election year, and then re-convene for a “short session” in December after the election, to take care of business through March 3; then there would be no Congress in session until the next December.

Again, that’s enough for one day. It will take me a while longer to digest the next major section of Ackerman’s book, devoted to issues relating to the Federal judiciary in the wake of the 1800 transfer of power: the “midnight judges,” the Jeffersonians’ attempts to get rid of as many of them as possible, and the resulting court cases, including of course Marbury v. Madison.

Maybe I’ll write of other things in the meanwhile. Bear with me!

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