Electoral College

Citing Madison’s acknowledgement that the Constitutional Convention had not sufficiently debated and considered the method of electing the President. Also noting that Madison wrote out a new Amendment to remedy this defect two decades after the Twelfth Amendment had been adopted, suggesting that even in 1823 he thought the process could be improved. Arguing that Madison especially took issue with the one-state, one-vote aspect of the Twelfth Amendment, which he viewed as a “departure from the Republican principle of numerical equality.”

Discussing the use of history in constitutional interpretation of the provisions related to the vice presidency. Noting that the original intent of the Amendment was that the Vice President should serve only temporarily as President in cases of death or disability. Arguing that the Twelfth Amendment (and others) were ratified in response to historical practice.

Arguing that the Twelfth Amendment’s adoption suggests that constitutional change occurs through institutional evolution. Concluding that originalists should take institutional evolution into account, rather than relying on constitutional formalism. Discussing the rationale underlying the ratification of the Twelfth Amendment.

Arguing that the Twelfth Amendment consequentially changed the structure of constitutional government. Arguing that the presidency designed at the original Constitutional convention was to be an apolitical office above partisanship. Contending that the Twelfth Amendment unified the Executive branch under one political party. Looking to the Philadelphia convention and the Crisis of 1800 to examine the intent and meaning of the Amendment.

Describing problems with the Twelfth Amendment’s text, including its ambiguity. Analyzing the history of the Amendment, largely the prior ratification debates, to argue that the Framers didn’t explain who should be empowered to count the votes. Ultimately arguing for an amendment that enhances the clarity of electoral procedures.

Critiquing standard historical accounts and justifications of the electoral college. Arguing that the nation could implement a system of national popular election consistent with the Constitution. Providing a different analysis of the Philadelphia conventions and noting that the major divisions contemplated were not among large and small population states but among regions.

Providing an extremely thorough account of whether the 1887 Electoral Count Act is constitutional by drawing on primary source material. Analyzing the original meaning of the Twelfth Amendment to argue for the unconstitutionality of the Act. 

Reviewing David Currie’s book, The Constitution in Congress: The Jeffersonians, 1801-1829, which includes the debates over how the President should be elected. 

Arguing that the Twelfth Amendment receives less scholarly attention than it deserves. Assessing why the Amendment did not matter more during Bush v. Gore and principally delving into the political realities underlying the Amendment’s proposal and ratification. Breaking down each part of the Amendment, with particular attention to the Habitation Clause.

Analyzing the text, purpose, and precedent surrounding the Twelfth Amendment. Concluding that it (and the similar language in Article II) does not bar the election of a President and Vice President from the same state but does prohibit electors from voting for a President and Vice President who are inhabitants of the same state. Claiming that the Founders were mostly concerned with citizens’ competing loyalties between states and the federal government when voting.