How the Presidency Changed Forever
Sick of the campaign? Blame the 12th Amendment.
Both President Barack Obama and Republican challenger Mitt Romney are battling to shape the political future of the country. In so doing, argues MU Assistant Law Professor Joshua Hawley, both men embody an approach to the presidency that bears little resemblance to the one contemplated by the authors of the Constitution when they met in Philadelphia in 1787.
The framers did not mean the presidency to be a political office active in the legislative process, says Hawley, who is preparing a law review article on the topic. He traces the birth of the modern political presidency to the ratification of the 12th Amendment to the Constitution in 1803.
“Though Congress was meant to be the policymaking branch, it was not well structured to exercise a lot of political authority,” Hawley says, given that it was divided into two branches and chosen by different electorates to staggered terms. It was similarly ill‐suited to devising a coherent policy agenda — “and it turns out the presidency they designed, because it is unitary in nature, was pretty well‐suited to exercise authority,” he says.
That is why Congress almost immediately turned to Treasury Secretary Alexander Hamilton for advice on structuring the economy, causing a backlash among those who disagreed with his prescriptions. “By the 1790s, political parties figured out the executive can be a politically important branch, and they started to compete for it,” Hawley says.
But the way the president was chosen by the Electoral College made that extremely difficult.
As a remedy, the 12th Amendment made a small but important change in how members of the Electoral College voted for the president. Before the amendment, there was no such thing as a vice presidential candidate. Electoral College members each cast two votes for president; whoever received the majority became president, and whoever placed second became vice president. The 12th Amendment allows members of the Electoral College to designate their votes for president and vice president and says that whoever receives a majority of votes in their respective category is the winner of that office.
Changing the rules meant Electoral College members, who are forbidden from coordinating with one another, could cast both votes for the candidates of their favored political party without fear of a tie (as happened in 1800 when Aaron Burr, who was Thomas Jefferson’s running mate, nearly snatched the presidency away from him). To avoid that potential in 1796, a few supporters of John Adams in the Electoral College “wasted” their second vote to ensure Adams finished with more votes than his running mate — but with no way to coordinate, too many of them wasted their votes and allowed rival Jefferson to win the vice presidency.
But the amendment had further‐reaching impacts than merely simplifying voting.
Hawley describes the original purpose of the presidency as an apolitical one: mainly to protect against majority abuses in Congress and carry out Congress’ laws. The Electoral College was invented as a way to choose a capable administrator without going through an impractical popular vote or the political intrigue of having Congress fill the position.
If someone wanted to be the kind of president the framers originally intended, he or she wouldn’t even run for the office, Hawley says, as the framers did not envision popular campaigns. Candidates, as such, would wait to be recognized for their talents by the Electoral College.
But by the passage of the 12th Amendment, Hawley points out, amendment authors admit a far different mindset, contending that the president is a representative of the people and that reform of the Electoral College is needed to ensure the people’s will is carried out.
“The very different mode of selection reflects a very different conception of how the president would behave,” Hawley says.
The result of the amendment, Hawley says, is that it became possible for parties to effectively campaign for the presidency and, upon winning, claim a legislative mandate from the people. The amendment’s passage caused a structural change in the presidency, turning it forever from one of apolitical administrator to political policymaker.
Traditional explanations for that change — that it’s a recent consequence of Franklin Delano Roosevelt’s New Deal activism or that it was always somehow that way — are “insufficiently attentive to how Constitutional text actually shapes our political tradition and political evolution,” Hawley says. “As it turns out, the political presidency is not new — it’s old. But it’s not as old as the original Constitution.”