The Constitution we have…

The other day I noticed the cover of the current edition of American Prospect – not the 9/11 one but the following month’s, not online yet (or I’d post a link, of course) but on the stands and in libraries already. It shows a standard portrait of George Washington with a mouth balloon saying “Oops!” – illustrating an article by Harold Meyerson entitled “Did the Founders Screw Up? – Why presidential democracy no longer works for America.”

I don’t wish to get into the details of the article right now, but rather report what came to my mind first when I saw the cover: first, I thought the title was perhaps inaccurate in its provocative tone, in that there is considerable middle ground between (1) not quite anticipating developments two centuries in advance, and (2) screwing up; but then I was reminded of how the Constitution as originally written caused a near-disaster just 12 years later, in the election of 1800; though there have been several books on that subject recently, the one I immediately thought of  was Bruce Ackerman’s similarly titled The Failure of the Founding Fathers. So I went back to it to remind myself of some of its contents.

What is well known, or at least what I’ve known about the 1800 election since I was a kid, is that the Constitution origially had the Presidential Electors each cast  two ballots for the Presidency, at least one of which had to be for a candidate from outside the Elector’s own state; to be elected, one had to have the votes of a majority of the Electors; and the runner-up became Vice President. This failed to anticipate the formation of national parties putting forward candidates for both offices as a single “ticket;” thus Jefferson and Burr, the winners in 1800, ended up with an exact tie in the electoral vote, with nothing to indicate which should be Pres and which VP (though it seems clear that everyone intended Jefferson to be the head of the ticket). This threw the election into the House of Representatives, where the defeated Federalist party was still in charge and came close to electing Burr over Jefferson out of sheer mischief, until wiser heads prevailed. Promptly thereafter the 12th Amendment was adopted, giving us more or less the system we have now.

Things I hadn’t known, or hadn’t paid sufficient attention to, before I read them in Ackerman:

1) Only under the original system could there have been both an exact tie and an absolute majority of the Electors. There were 138 Electors that year; thus 276 votes were cast, but the necessary majority was a majority of the 138 only, that is 70. As it happened, Jefferson and Burr each got 73. This is why the run-off in the House was just between the two of them; if neither had gotten to 70, a more familiar provision would have taken effect allowing the House to choose between the top 5 candidates (changed by the 12th Amendment to top 3). This is why the Federalists weren’t able to simply elect their own candidate, presumably Adams though Ackerman suggests they might have preferred C. C. Pinckney as marginally more acceptable to at least some Jeffersonians.

2) In fact it could have turned out that way;  the ballot submitted by the four Georgia electors was technically deficient, and the Congress could have voted to dismiss them, leaving Jefferson and Burr tied at 69. Now, in accordance with the Constitution, the presiding officer of the joint session where the votes were counted was the President of the Senate, i.e. the sitting VP, Jefferson himself… but he could have been overruled on this if anyone had really wanted to make trouble, or if anyone really suspected hanky-panky in Georgia (which everyone knew intended to vote for Jefferson-Burr).

The plot thickens; but this is already long enough for a post, so I’ll end here for now and put up more tomorrow (a good bit is already written, so you can be pretty sure something will appear).