The Constitution we have… (continued)

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!

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).