OF THE PRESIDENT'S PARTICIPATION IN THE LEGISLATIVE POWER.
THE president partakes
of the legislative power under wise and cautious qualifications, founded,
as the whole frame of our government is founded, on their tendency to
promote the interests of the people. He does not originate laws or
resolutions; he takes no part in the deliberations on them during their
progress; he does not act in relation to them indirectly by advice or
interference of any sort, until they have passed both houses: it is only
when their operations are concluded that his power begins.
A view of his other functions will belong to other parts of this work,
but as preparatory to the whole, it is necessary to set forth the manner
of his being elected.
To call an individual from private life in order that he may preside
over the interests of millions; to invest him with the various dignified
functions, and the extensive patronage which appertain to a station so
exalted; to secure as completely as possible, the free exercise of the
people's rights; to discourage and prevent the artifices of party, and of
individual ambition; and to accomplish all this by means of a fixed and
practicable system which should neither be misunderstood, perverted nor
resisted, was a task of no small difficulty.
Hereditary succession has its advocates among the lovers of peace and
regularity; and the turbulent elections of Poland have often been quoted
by those who did not distinguish between a military aristocracy and a well
ordered republic. But we had among ourselves more appropriate examples in
the elections of the governors of states, which an experience, short but
satisfactory, pointed out as models that might be carefully consulted.
The immense territory over which this officer was to preside, the
population already great, and annually increasing beyond the relative
growth of most other countries, the divisions of states, each separate and
independent, and the necessity of admitting to some extent the sensations
of local identity even in the act of general and consentaneous suffrages,
suggested certain combinations of the elective faculty which in a single
state would be useless and unwieldy.
To effect these purposes, an excellent theory was adopted. Each state is
to appoint in such manner as the legislature may direct, a number of
electors equal to the whole number of senators and representatives to
which the state may be entitled in congress, and these electors are to
choose the President, and Vice President by ballot only.
In thus fixing the proportional number of electors, we perceive a due
attention to the preservation of the state character, without impairing
the universality of action incident to the election itself.
The people of each state had created their respective legislatures
according to the forms of their own constitutions. Those legislatures are
to direct in what manner the electors shall be appointed, and
there is no restriction upon them in this respect, because it is one of
those instances in which it was right to leave a certain free agency to
We have seen that in the appointment of senators, the state acts by the
legislature alone. The legislature cannot divest itself of the duty of
choosing senators when the occasion requires it. It cannot devolve the
choice upon electors or on the people.
But the duties of the senate though dignified and exalted, are not so
various as those of the president. Their participation in the executive
business is small and at uncertain intervals. The president comes into
daily contact with the people, by his daily executive functions, yet it
was conceived that he might feel a greater dependence on the people than
the public interests would warrant, if his election sprung immediately
from them. On the other hand, if his election depended entirely on the
legislatures, it would carry the state character beyond its reasonable
bearings, and create a sense of dependency on them alone, instead of a
relation to the people at large. Under the old confederation, the
president was chosen by the members of the congress, and not by the state
legislatures who appointed those members.
From these coincidences it was found expedient that he should owe his
election, neither directly to the people, nor to the legislatures of
states, yet that these legislatures should create a select body, to be
drawn. from the people, who in the most independent and unbiassed manner,
should elect the president. As the election would thus in effect become in
a certain sense, the combined act of the legislatures and of the people,
it was further considered that while the latter were thus brought into
action, the state character was further to be maintained, and hence two
electors were, at all events, to be secured to each state. Thus as an
equal representation in the senate was already secured to each state,
however small the state might be, a certain degree of respectability and
effect was also secured to the smallest state, in the number of electors.
This concession to the small states could not, however, be allowed,
without allowing it also to the largest, since all are constitutionally
The manner in which these great objects were to be effected is now to be
It is directed that the electors shall meet in their respective states.
The particular place of meeting is properly to be fixed by the
legislature, but it cannot be out of the state; if the legislature should
inadvertently or designedly omit to designate the place of meeting, or if
any moral or physical cause should render it impossible for the electors
to assemble there, nothing appears in the Constitution to prevent them
from meeting at a place of their own choice.
The election is to be by ballot, the mode of proceeding best calculated
to secure a freedom of choice.
Of the two persons voted for, one at least shall not be an inhabitant of
the same state with the electors. The votes being transmitted to the
senate were to be opened by its president in the presence of the senate
and house of representatives. The person having the greatest number of
votes was to be president if such number was a majority of the whole
number of electors appointed, and if there was more than one who, had such
majority and had an equal number of votes, the house of representatives
were immediately to choose by ballot one of them for president. If no
person had a majority, the house should in like manner choose the
president out of the five highest on the list. The votes of the house were
to be taken not individually, but by states, the representatives from each
state having one vote. A quorum to consist of a member or members from
two-thirds of the states, and a majority of all the states was necessary
for a choice.
The mode of proceeding was somewhat different as to the vice president.
After the choice of the president, the person having the greatest number
of votes was to be vice president. If there remained two or more who had
an equal number of votes, the senate and not the house, were to choose
from them by ballot the vice president, and as it is not directed that in
this respect they shall vote by states, it follows that they vote
individually as in ordinary cases.
Such was the original plan of the constitution, but it has been usefully
altered by providing that the ballots of the electors shall be separately
given for president and vice president, and that the vice president shall
be elected, as in the case of the president, by a majority of the whole
number of electors appointed.
The number of candidates out of whom the selection is to be made by the
house of representatives, is reduced from five to three. The senate in
respect to vice president is confined to the two highest in votes.
In regard to the final choice of the president, it was deemed expedient
that the house of representatives should vote by states, because there
would always be reason to suppose that if the people at large were much
divided in opinion, their immediate representatives would be incapable of
coming to a decision, and no other mode of removing the difficulty occured
than in this manner to refer it to the states. In the senate, where the
representation is equal, the same inconvenience was not to be apprehended,
and by reducing the ultimate candidates to a smaller number, those who
represented states in which the votes had been lost, would be much less
influenced, even if such influence existed at all.
Another benefit also resulted from it. By the first mode of proceeding
the senate was restrained from acting until the house of representatives
had made their selection, which if parties ran high, might be considerably
delayed by the amendment, the senate may proceed to choose a vice
president immediately on receiving the returns of the votes. If under the
old mode, the house of representatives did not choose a president before
the fourth day of March next ensuing, the vice president then in office
was to act as president. So that although the public confidence might have
been wholly withdrawn from him, he would become president in effect
whereas on the present plan, if no president is elected by the house of
representatives, the vice president who will fill the office, will have
the fresh suffrages of the people.
So far therefore as relates to this part of the plan for choosing the
president and vice president, the arrangement seems now settled as
judiciously as the nature of our constitution will admit, although one
difficulty Dot provided for, may possibly some day occur. If more than
three of those highest in votes for president, or than two of those voted
for as vice president should be equal in number of votes, it is not
directed how the selection shall be made. In the original text it is
declared, that the votes of the house of representatives and the senate
shall be by ballot, and. so it still continues as to the house of
representatives, but it is not directed in the amendment, how the votes of
the senate shall be given. It is probable, however, that a vote by ballot,
would be adopted.
At present, (1824,) the electors are chosen by the people in seventeen
out of the twenty-four states, either by a general ticket, or in districts
fixed by the legislature. In the remaining seven, the legislature has
reserved to itself the power of appointing them. The former mode seems
most congenial with the nature of our government, and the popular current
now sets so strongly in favour of it, that the practice will probably
become general. 1
Vacancies in the office of president are provided for. "In case
of the removal of the president from office, or of his death, resignation
or inability to discharge the powers and duties of the office, it shall
devolve on the vice president," and congress shall have power to
provide for the concurrent vacancies of both.
This power has been executed by authorizing the president pro
tempore of the senate to perform those functions. The president pro
tempore of the senate is chosen by the senate during the absence of
the vice president, or when he executes the office of president, and it
has become usual for the vice president to retire from the senate a few
days before the close of the session, in order that a president pro
tempore may be chosen, to be ready to act on emergencies. If however
there should happen to be vacancies in all these three respects, the
speaker of the house of representatives is next empowered to assume the
office of president, and beyond this no provision has been made.
If the vice president succeeds to the office of president, he continues
in it till the expiration of the time for which the president was elected;
but if both those offices are vacant, it becomes the duty of the secretary
of state to take measures for the election of a president.
The effect of the last amendment has not been adverted to by congress.
As the Constitution now stands a vice president cannot be elected till the
Notification is to be given, as well to the executive of each state as
in one at least of the public newspapers printed in each state, that
electors of a president shall be appointed or chosen within thirty-four
days next preceding the first Wednesday in the ensuing December, unless
there shall not be two months between the date of the notification and the
first Wednesday in the ensuing December, in which case the election shall
be postponed till the ensuing year. But if the term of the office of the
president and vice president would have expired on the third of March next
following such vacancies, no extra election is necessary, as the
regular election will then take place on the same day which the secretary
of state is otherwise directed to notify.
For the office of both president and vice president is fixed to commence
on the fourth of March in each year, and the regular election takes place
on the first Wednesday of the preceding December.
Under these multiplied provisions, no inconvenience can be apprehended.
It can scarcely ever happen that there shall be at one and the same time
no president, vice president, pro tempore president of the senate,
and speaker of the house of representatives.
It must however be acknowledged that in no respect have the enlarged and
profound views of those who framed the constitution, nor the expectations
of the public when they adopted it, been so completely frustrated as in
the practical operation of the system so far as relates to the
independence of the electors.
It was supposed that the election of these two high officers would be
committed to men not likely to be swayed by party or personal bias, who
would act under no combination with others, and be subject neither to
intimidation or corruption. It was asserted that the choice of several
persons to form an intermediate body of electors, would be much less apt
to convulse the community with extraordinary movements, than the choice of
one who was himself to be the final object of their wishes. 2
Whether ferments and commotions would accompany a general election by
the whole body of the people, and whether such a mode of election could be
conveniently practised in reference to the ratio of representatives
prescribed in the constitution, is yet to be ascertained; but experience
has fully convinced us, that the electors do not assemble in their several
states for a free exercise of their own judgments, but for the purpose of
electing the particular candidate who happens to be preferred by the
predominant political party which has chosen those electors. In some
instances the principles on which they are chosen are so far forgotten,
that electors publicly pledge themselves to vote for a particular
individual, and thus the whole foundation of this elaborate system is
Another innovation has also been introduced. Members of congress,
entrusted only with the power of ordinary legislation, have frequently
formed themselves into a regular body at the seat of government, and
undertaken to point out to the people certain persons as proper objects of
their choice. Although the mild and plausible garb of recommendation is
alone assumed, yet its effect is known and felt to have been often great
and sometimes irresistible.
If the Constitution, as originally proposed, had contained a direct
provision that the president and vice president should be chosen by a
majority of the two houses of congress, it is not probable that this part
of it would have been adopted.
That the chief executive magistrate should be the creature of the
legislature; that be should view in them the source from which he sprung,
and by which he was to be continued, would at once destroy the dignity and
independence of his station, and render him no longer what the
Constitution intended, an impartial and inflexible administrator of the
public interests. To the people alone he would no longer consider himself
responsible, but he would be led to respect, and would be fearful to
offend, a power higher than the people.
Such principles cannot be found in the Constitution; and it is wholly
inconsistent with its spirit and its essence, to effectuate indirectly,
that which directly is not avowed or intended. These instances fully prove
that the safety of the people greatly depends on a close adherence to the
letter and spirit of their excellent Constitution; but it is probable that
a late failure will prevent a renewal of the last mentioned attempt. And
in reference to the election of 1828, it has not been renewed, but, with a
strict adherence to the forms prescribed, the voice of a great majority of
the people has decided the choice.
Before we close the subject, it is proper to add that, in one respect,
the caution of the Constitution cannot be violated — no senator or
representative or person holding an office of trust or profit under the
United States can be an elector, and therefore the vote of every such
person would be void.
1. There are now (1829) but two
states, viz. Delaware and South Carolina in the electors are appointed by
2. Fed. No. 8.
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