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10/25/2012

Eugene Volokh on the Twelfth Amendment and Framers' Error
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh: And Sometimes the Framers Erred.  Core observation:

[W]hat happens if no-one gets a majority of the electoral vote, either because three candidates split the electoral vote, because enough electors refuse to vote for the candidate that they were expected to vote for, or because the electoral college splits evenly (today, 269-269)? ... [Under the Twelfth Amendment] the House, voting by states, elects the President, but the Senate, voting by Senators, elects the Vice-President. And, as ABC News notes, the majority of House delegations is Republican, and would thus presumably vote for Romney; this will likely stay this way following the election. But if the Senate majority remains Democratic, then the Senators will presumably vote for Biden. ...

What’s more, this is eminently predictable — by the time the Twelfth Amendment was enacted in 1804, American leaders were well aware that parties would be important, and that Presidential and Vice-Presidential candidates would run on tickets together. Yet the Twelfth Amendment provided for selection of the President and Vice-President by two different processes, which might well yield different results. ...

But it’s still important, I think, that in the event the President dies or becomes disabled, the agenda of the Administration continue without massive interruption — and a sudden, unplanned switch in the middle of a presidential Term from one party to another is likely to be such an interruption. (I’m no historian of the Civil War era, but as I understand it much of the problems that Andrew Johnson faced stemmed from his being of a different party from Abraham Lincoln; the two were elected on a wartime unity ticket.) So the Framers of the Constitution, and then the authors of the Twelfth Amendment, seem to have erred in this respect, though as to circumstances that, admittedly, are quite rare in American history.

That seems right (though I'm not sure how the Amendment would be drafted to produce a better result: perhaps its framers recognized the problem but saw no ready solution).

Professor Volokh's observation reinforces a more basic point: any meaningful theory of interpreting the Constitution must accord with the reality that the document has flaws.  If one's theory of constitutional interpretation doesn't produce at least some results in disputed cases that are distasteful from a policy perspective, then likely its not a theory of interpretation at all (a theory of moral philosophy or public policy perhaps, but not of interpretation, because it's not bound by the document in any meaningful way).

From this perspective, consider an opening point in Akhil Amar's recent book America's Unwritten Constitution.  Amar notes that the Constitution expressly provides that the Chief Justice, not the Vice President, presides over the Senate's trial of an impeached President (even though ordinarily the Vice President presides over the Senate).  Obviously this exception is made because the Vice President has a personal interest in the question whether the President is removed from office, as the Vice President would then become President.

But, Amar continues, who presides over the Senate when the Vice President is impeached?  The Constitution doesn't say expressly, so does that mean the Vice President presides -- at his own trial?

Amar can't believe this is right, and so finds an unwritten principle that no one can be the judge of one's own case.  That's reflected expressly in the provision regarding trials of the President, but Amar thinks it holds as well (indeed, even more so) in trials of the Vice President.

Well, maybe ... but the idea of founding error provides a simpler solution.  Most likely, the drafters overlooked the situation.  That's what the text indicates.  True, the framers had a general idea that, as a matter of public policy, no one should be a judge in a case where they have an overriding personal interest.  To implement that view, the framers made a specific exception for trials of the President; the need for an exception for trials of the Vice President apparently didn't occur to them, or they would have made a similar exception.  And that's the flawed document we have, because the specific exception, not the general principle, is what's in the text.  A different "interpretation" isn't really an interpretation; it's an attempt at improvement (or, put another way, amendment) -- just as the Twelfth Amendment was itself an attempt at improvement over the even messier provisions of the original Constitution.

FURTHER NOTE:  For an additional Twelfth Amendment conundrum, see this post by Gerard Magliocca at Balkinization.  (My answer: no, as Vice President Joe Biden may not break a tie and vote for himself, for the textual reason stated in one of the comments).