We’ve finished the original Constitution and the first eleven amendments. Today, we’ll consider the Twelfth Amendment.

This post is part of a series that will make more sense if it is read in order. If you haven’t read the earlier posts in this series, please click here to start with the first one. One reason I’ve broken this series into fairly small parts is that we have a tendency to rush through reading the Constitution and miss a lot of it. I hope the readers of this series will ponder the points in each session. I also hope you will comment on each post as we go along.

Throughout this series on the Constitution, my comments will be in black normal font, and the text of the document will be in this color and italicized.

ARTICLE XII.

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.14—The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

This amendment was proposed by Congress on December 9, 1803, and ratified on June 15, 1804. It provides a completely different method of selecting the President and Vice-President from that put forth in Article II of the Constitution. It had only been sixteen years since the original provision was passed, but our leaders already recognized the need to change it.

For perspective, let’s re-examine Section 1 of Article II. To paraphrase, it said the person with the most votes became President, while the one with the second most became Vice-President. Politics making strange bedfellows, as they say, this was not an ideal situation. In 2000, this would have made Al Gore Bush’s Vice-President. How well do you think they would have gotten along.

While our first elections did not necessarily make the occupants of these two most powerful offices enemies, it didn’t produce a cohesive team, either. This amendment was proposed and ratified to insure that the President and Vice-President represent at least similar interests. The goal was to provide a degree of cohesiveness in the administration.

This Twelfth Amendment is necessarily wordy, because it’s dealing with a lot of contingent possibilities. The purpose of a lot of the wording is “if this doesn’t work, and that doesn’t work either, then we’ll do this.” Rather than spend pages dealing with all the possible contingencies, let’s take a look at what is supposed to happen.

Referring back to earlier posts about constitutional provisions, we can recall that the major conflict in national politics at the time was between the big states and small states. The big states wanted all power to be apportioned according to population. The small states, afraid of being trampled by the big states, wanted power to be apportioned equally among the states.

Our bicameral Congress was the result of compromise between the two factions. The House allots power according to population, while the Senate gives each state equal representation. This amendment uses the same principle for voting for President and Vice-President. Simply stated, each state has a number of electors equal to the combined number of Congressmen and Senators allotted that state. The popular vote, cast by the people, determines which slate of electors get to choose, then the electors make the actual choice.

Every election year, people start whining about the Electoral College, which is the name we’ve give to the gathering of these electors. “Why have this complicated system? Why not just go by the popular vote?”

We’ve lived with this compromise between large and small states in Congress for some 229 years now, so why do we fuss about using the same principle for electing our President? We accept the compromise every two years for Congressional elections, but we raise cane about it every four years for Presidential elections. How does that make sense.

In addition to balancing the big and small states, the Electoral College also gives a balance among different geographical areas of the country. To give an exaggerated example, suppose a candidate is able to make 92% of the people in one section of the country believe that he or she best represents their interests, while 52% or even 60% of those in the rest of the nation see that the other candidate is really best, should that small section of the country be able to elect a candidate abhorrent to the rest of the nation?

What are your thoughts about trashing this important part of our Constitution?

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Benjamin Franklin, exiting Constitutional Convention:

“We’ve given you a republic, if you can keep it.”

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For more information about David N. Walker, click the “About” tab above.

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Contact him at dnwalkertx (at) gmail (dot) com or tweet him at @davidnwalkertx.