Contrary to John Yoo’s recent AEI report (“Who Decides Disputed Presidential Elections: Congress or the Vice President?“), it’s improbable that the framers would ascribe a critical role in resolving electoral vote disputes to an office whose insignificance its own holders have emphasized from the very beginning. Vice presidents, after all, possess no executive power. Only as the president of the Senate does the officeholder exercise any formal power—by casting tie-breaking votes in the Senate. Moreover, even his procedural rulings as the Senate’s presiding officer can be overruled by a majority of members. In turning down his own chance to be vice president in the 1840s, Senator Daniel Webster was reported to have said, “I do not propose to be buried until I am really dead and in my coffin.”
As the late constitutional scholar Walter Berns noted nearly two decades ago, the vice presidency was an afterthought in the Constitutional Convention—conceived only in its last days. And, indeed, they established the office of president of the Senate even before they created a vice president to hold the position. The Committee of Detail’s August 6 draft constitution proposed a president of the Senate elected by the chamber’s members and first in line to fill a presidential vacancy. At this point, there had been no mention of a vice president.
Not until September 4—just 13 days before the delegates finished—did the office of vice president first appear, in the Committee on Unfinished Business’ report. They proposed a vice president who would both be runner-up to the electoral college’s presidential choice and president of the Senate.
Why the late addition? As Berns argued and the committee’s name suggests, the process of finalizing most of the draft constitution had postponed discussion of some key remaining matters. The most important of these unresolved issues was the presidential election method, an issue that had bedeviled the Convention for most of the summer. In their report, the committee’s 11 members (one from each state in attendance) proposed (what would later be called) the Electoral College system. State electors would cast two ballots, only one of which could be cast for a candidate from an elector’s home state to prevent their preference for favorite sons from depriving any candidate of a majority, regularly throwing elections to Congress, which the delegates wished to avoid if possible. By casting two votes, electors could select both a favorite son and, presumably, someone else with perhaps greater national stature. Fearing, however, that this would not be enough to prevent a fractured vote, the committee also created a vice presidency, filled by the electoral runner-up, who would be the designated successor to the president. Now there would be an incentive for electors who might be disposed to vote for a local favorite to make a wise choice with their second vote. Nevertheless, the new vice presidential office was superfluous when it came to substantive governing. At the Convention, Hugh Williamson of North Carolina effectively underlined the point: “Such an officer as vice-president was not wanted. He was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time.”
Why, then, make the vice president the president of the Senate? Because the Senate was constitutionally designed to have an even number of members (two per state), there needed to be someone to break a tie. In the modern era, this tie-breaking power enhances the administration’s influence over a closely divided Senate. We should not, however, read this advantage back into the Convention delegates’ intentions; before political parties, there was no particular reason why the vice president and president would be politically aligned. Rather, the more prosaic reason for the decision was because, as Roger Sherman of Connecticut simply put it, absent that power “he would be without employment.”
The greater role vice presidents have taken on in more recent times is thus not one prescribed by the Constitution. They are more important now simply because modern presidents have made them so. Tellingly, John Adams, the nation’s first vice president, appears to have never been invited to attend a meeting of Washington’s cabinet. Adams captured the office’s bare-bones constitutional nature when he described the post as “the most insignificant office that ever the invention of man contrived or his imagination conceived.” In short, there is no reason to believe that the Constitution’s framers would have vested in this office the potentially crucial authority to resolve electoral-vote disputes—a power whose exercise might often determine the next president of the United States. And in many cases that person might very well be the vice president making the decision.
This is a section from a longer forthcoming article “Counting Electoral Votes: How the Constitution Empowers Congress—& Not the Vice President—To Resolve Electoral Disputes,” co-authored by Joseph M. Bessette and Gary J. Schmitt.
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