The second American revolution in the separation of powers

Texas Law Review

Volumn 87, Issue 7, 2009, Pages 1409-1429

  Fontana, David ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 69249117723     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (130)

1. See, e.g., Sarah Baxter, Barnstorming Obama Plans to Pick Republicans for Cabinet, TIMES (London), Mar. 2, 2008, at 22 ("Obama is hoping to appoint cross-party figures to his cabinet such as Chuck Hagel, the Republican senator for Nebraska and an opponent of the Iraq war, and Richard Lugar, leader of the Republicans on the Senate Foreign Relations Committee.").
2. 2.Peter Baker & Thorn Shanker, Obama Planning to Retain Gates as Defense Chief, N.Y. Times, Nov. 26, 2008, at Al.
3. 3.Matthew L. Wald, Panel Approves Transportation Nominee, N.Y. TIMES, Jan. 22, 2009, at A22.
4. Jeff Zeleny, 2nd Pick to Run Commerce Dept. Withdraws Bid, N.Y. TIMES, Feb. 13, 2009, at Al.
5. While both Secretary Gates and Secretary LaHood are Republicans, Secretary LaHood probably counts as more of a Republican because he has been elected for office as a Republican. See, e.g., Wald, supra note 3 ("Mr. LaHood [is] a Republican former congressman from Illinois...."). Secretary Gates has long worked for Republicans, but he is not a registered Republican.
6. See Late Edition with WolfBlitzer (CNN television broadcast Nov. 9, 2008), available at http://transcripts.cnn.com/TRANSCRIPTS/0811/09/le.01.html (transcribing an interview with Senator Reid in which he explains that Secretary Gates has "never been a registered Republican").
7. See Peter Baker, In Announcing Withdrawal Plan, Obama Marks Beginning of Iraq War's End, N.Y. TIMES, Feb. 28, 2009, at A6 (discussing President Obama's plan to withdraw troops from Iraq and shift resources to Afghanistan).
8. Wald, supra note 3.
9. See infra section 11(B)(2).
10. For a discussion of the political and constitutional controversy surrounding this, see generally Bruce Ackerman & David Fontana, Thomas Jefferson Counts Himself into the Presidency, 90 VA. L. REV. 551(2004).
11. U.S. CONST, art. II, § 1, cl. 3, amended by U.S. CONST, amend. XII.
12. Id. amend. XII.
13. See Neal Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2319-22 (2006) (explaining the need for internal checks within each branch of government).
14. Sanford Levinson & Ernest A. Young, Who's Afraid of the Twelfth Amendment?, 29 FLA. ST. U.L. REV. 925, 925(2001).
15. Steven G. Calabresi, The President, the Supreme Court, and the Founding Fathers: A Reply to Professor Ackerman, 73 U. CHI. L. REV. 469, 475 (2006) (reviewing BRUCE A. ACKERMAN, THE Failure of the founding Fathers: Jefferson, Marshall, and the Rise of Presidential DEMOCRACY (2005)). Bruce Ackerman discusses the changes in understandings about the Executive Branch following the election of 1800, but more in terms of how the presidency was understood and not how the Executive Branch in general would operate.
16. See BRUCE A. ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS: JEFFERSON, MARSHALL, AND THE RISE OF Presidential Democracy 143-144 (2005) ("The presidential office also lacked the plebiscitarian symbolism it has since acquired.... This rhetorical development was only at its beginning in 1800.").
17. Steven Calabresi has written that the difference in timing for these elections is one of the defining virtues of the American regime of separation of powers. See Steven Calabresi, Why Professor Ackerman Is Wrong to Prefer the German to the U.S. Constitution, 18 CONST. COMMENT. 51, 57 (2001) ("Our Madisonian system of staggered elections every two years for the House of Representatives, every four years for the presidency, and every six years for one third of the Senate is a much more sophisticated way of sampling the popular will than that offered by the German system. It gauges and recalibrates not only the geographical spread of particular viewpoints but also the intensity with which opinions are held.").
18. U.S. CONST, art. I, § 2.
19. Id. art. II, § 1.
20. Id. art. I, §3.
21. Even before the financial crisis hit in September of 2008, polls indicated that Americans cared the most about a candidate who was good on economic issues. See, e.g., LYMARI MORALES, Gallup, Americans Prioritize the Economy over Terrorism: Majority Viewpoint Persists Across All Incomes and Among Independents (2008), http://www.gallup.com/poll/108415/Americans-Prioritize- Economy-Over-Terrorism.aspx (indicating that 56% of Americans favored a candidate whose greatest strength was fixing the economy versus 39% who favored a candidate whose greatest strength was protecting the country from terrorism). In 2002, by contrast, American policy towards Iraq was more important to voters than the economy.
22. See, e.g., GEORGE Gallup, The Gallup Poll: Public Opinion 2002, at 337 (2003) (citing a Gallup poll from October 2002 indicating that the public at large was slightly more concerned with the economy than the war, but that those "most likely to vote" ranked the Iraq war as their higher priority by a margin of 47% to 39%).
23. See PEW RESEARCH CTR., COUNTRY IS "LOSING GROUND" ON DEFICIT, RICH-POOR GAP: WAR SUPPORT SLIPS, FEWER EXPECT A SUCCESSFUL OUTCOME 1 (2007), http://people-press.org/reports/pdf/304.pdf (indicating that 55% of those polled in August 2006 said that the war in Iraq was "not going well" and 46% favored bringing soldiers home);
24. PEW RESEARCH CTR., EVEN as Optimism About Iraq Surges, Declining Public Support for Global Engagement 1 (2008), http://people-press.org/reports/pdf/453. pdf (indicating that 43% of those polled thought that going to war was the right decision and 50% supported bringing the soldiers home);
25. PEW RESEARCH CTR., MIDTERM ELECTION PREVIEW: AMERICANS THINKING ABOUT IRAQ, BUT FOCUSED ON THE ECONOMY 3 (2002), http://www.cfr.org/(search "Midterm Election Preview"; then follow "Acrobat Distiller, Job 26" hyperlink) ("Roughly six-in-ten (62%) currently favor military action against Iraq.").
26. See U.S. Const, art. II, § 1 ("Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ...."); id. amend. XII ("The Electors shall... vote by ballot for President....").
27. Id. art. I, § 3.
28. Id. amend. XVII.
29. See id. amend. XIV, § 2 ("Representatives shall be apportioned among the several States according to their respective numbers.").
30. M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. REV. 1127, 1132(2000).
31. See id. ("[T]he Constitution contains celebrated departures from pure separation, usually dubbed checks and balances: the Senate's advise-and-consent functions, thought to be executive in nature; Congress's involvement in the judicial function of impeachment; and the President's power to approve or veto legislation, involving him in the legislative function.").
32. This ability to identify which politician would be better at particular governmental functions is furthered by the Constitution's decision to prohibit any Executive Branch officials from serving in the Legislature, and vice versa-therefore prohibiting them from exercising multiple forms of authority beyond those overlapping powers provided by the Constitution. See Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel, 79 CORNELL L. Rev. 1045, 1062-65 (1994) (specifying the limitations the Incompatibility Clause imposes on government officials). This interpretation of the Constitution has recently been criticized by Seth Barrett Tillman.
33. Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution's Incompatibility Clause, 4 DUKE J. CONST. L. & PUB. Pol'Y Sidebar 1 (2008), http://www.Iaw.duke.edu/journals/ DJCLPP/index.php?action=downloadarticle&id=79.
34. See, e.g., Pete DuPont, Can Kerry Execute?, WSJ.COM, Aug. 12, 2004, http://www.opinionjournal.com/columnists/pdupont/?id=l 10005433 ("Among the 20th-century presidents, five of those with executive experience-Teddy Roosevelt, Franklin D. Roosevelt, Ike, Ronald Reagan and Woodrow Wilson-ranked as great or near great.... Which leads to the conclusion that America is usually better off with a president who has had executive experience before reaching the White House.").
35. My purpose here is not to highlight or critique the alleged normative virtues or vices of this uniformity. Much of this normative territory is covered by articles that are part of the recent revival of interest in what Neal Katyal has called the normatively beneficial regime of "internal separation of powers." See Katyal, supra note 12, at 2316 (discussing the virtues of "executive v. executive" disputes and checks and balances). William Marshall has highlighted the role of internal separation of powers in state constitutions. William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 YALE L.J. 2446, 2448 (2006). Katyal's and Marshall's normative considerations regarding the internal separation of powers might equally apply to the internal separation of perspectives. Many of the benefits-and detriments-of dividing up powers between different executive actors might also apply to ensuring that these actors have a range of partisan and ideological perspectives.
36. David Fontana, The Permanent and Presidential Transition Models of Defining Political Party Policy Leadership, 103 Nw. U. L. REV. 393, 398-404 (2009).
37. See Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 487 (1989) (Kennedy, J., concurring in the judgment) ("The President has the sole responsibility for nominating [principal officers]...");
38. see also U.S. CONST, art. II, § 2 ("[The President] shall have Power... [to] nominate,... by and with the Advice and Consent of the Senate,... Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States ").
39. See, e.g., Lois Romano, In Any Guise, Podesta a Smooth Master of the Transition Game, WASH. Post, Nov. 25, 2008, at CI (noting that President Obama will likely oversee over 8, 000 appointments).
40. See Anthony Bertelli & Sven E. Feldmann, Strategic Appointments, 17 J. PUB. ADMIN. RES. & THEORY 19, 22 (2007) (noting that Presidents typically appoint ideological analogues to lead executive agencies);
41. Nolan McCarty & Rose Razaghian, Advice and Consent: Senate Responses to Executive Branch Nominations 1885-1996, 43 AM. J. POL. SCI. 1122, 1122 (1999) (stating that Presidents typically appoint ideologically compatible party loyalists to pivotal positions).
42. See THOMAS J. WEKO, THE POLITICIZING PRESIDENCY: THE WHITE HOUSE PERSONNEL OFFICE 1948-1994, at 11 (1995) (detailing the centralization of appointments with the advent of the White House Personnel Office and emphasizing the importance of political appointments).
43. See, e.g., 28 U.S.C. § 505 (2000) ("The President shall appoint in the Department of Justice, by and with the advice and consent of the Senate, a Solicitor General, learned in the law, to assist the Attorney General in the performance of his duties.").
44. See, e.g., 12 U.S.C. § 242 (1992) (stating that members of the Federal Reserve Board can only be removed for "cause").
45. See Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 277 (2000) (stating that American parties are highly decentralized collections of state and local organizations unified under a common interest in the national elections, with broad positions flexible enough for enormous disagreement).
46. See, e.g., Jacob Weisberg, Interest-Group Conservatism, SLATE, May 4, 2005, http://www.slate.com/id/2118053/(notingtheinfluenceof liberalinterestgroupsduringDemocratic presidencies and conservative interest groups during Republican presidencies).
47. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2312, 2311-12 (2001) (claiming that the political middle has "fallen out" of Congress due to party polarization).
48. See MORRIS P. FIORINA WITH SAMUEL J. ABRAMS & JEREMY C. POPE, CULTURE WAR? THE MYTH OF A DIVIDED AMERICA 77 (2004) (arguing that the American political elite has polarized but that this does not reflect similar polarization among the electorate).
49. See Mark Tushnet, Forward: The New Constitutional Order and the Chastening of Constitutional Aspiration, 113 HARV. L. REV. 29, 42-46 (1999) (discussing the effects of primaries and ideologically homogeneous districts in influencing the partisan divide).
50. There is, of course, some question about whether the Vice President is an executive official in the first place. Former Vice President Richard Cheney argued that the Vice President was part of the Legislative Branch. Scott Shane, Agency Is Target in Cheney Fight on Secrecy Data, N.Y. TIMES, June 22, 2007, at Al. Thomas Jefferson made a similar point hundreds of years ago.
51. See Letter from Thomas Jefferson to Elbridge Gerry (May 13, 1797), in 8 THE WORKS OF THOMAS JEFFERSON 283, 284 (Paul Leicester Ford ed., 1904) ("I consider my office as constitutionally confined to legislative functions ....").
52. See generally JOEL K. GOLDSTEIN, THE MODERN AMERICAN VICE-PRESIDENCY: THE TRANSFORMATION OF A POLITICAL INSTITUTION 134-202 (1982) (discussing the ways in which the American Vice President has become more powerful over time).
53. Id. at 249-271.
54. See Dana Milbank, In Cheney's Shadow, Counsel Pushes the Conservative Cause, WASH. POST, Oct. 11, 2004, at A21 (describing the prominent role of David Addington, Cheney's top lawyer and aid, in pushing for increased executive power).
55. See Council of State Gov'ts, The Book of the States 268 tbl.4.19 (37th ed. 2005) (listing the state attorneys general and the method by which each was selected).
56. See Cindy Skach, The "Newest" Separation of Powers: Semipresidentialism, 5 INT'L J. CONST. L. 93, 96 (2007) (describing semi-presidential systems as those in which "a popularly elected president with a fixed term of office" coexists with "a prime minister who is subject to a vote of no confidence in parliament").
57. A state attorney general and governor could be of the same political party and political persuasion; likewise, the president and prime minister in a semi-presidential system could have the same political profile. But the American internal executive homogeneity is essentially permanent and constant; the potential for executive heterogeneity created by state constitutions and semi-presidential constitutions means those constitutions create temporary executive heterogeneity rather than permanent executive heterogeneity.
58. See James E. Alt & David Dreyer Lassen, Fiscal Transparency, Political Parties, and Debt in OECD Countries, 50 EUR. ECON. REV. 1403, 1425 n.34, available at http://ideas.repec.Org/a/eee/eecrev/v50y2006i6pl403-1439.html ("In those countries with the most frequent coalition governments, 46 per cent of elections from 1980-2000 feature pre-electoral pacts among parties receiving significant votes.").
59. Wolfgang C. Müller & Kaare Strøm, Introduction to COALITION GOVERNMENTS IN WESTERN EUROPE 1, 2-3 (Wolfgang C. Müller & Kaare Strom eds., 2003).
60. Rory McCarthy, Hardliner Avigdor Lieberman Set to Become Israel's Foreign Minister, GUARDIAN, Mar. 17, 2009, at 23.
61. New Israel Defence Minister Named, BBC News, June 15, 2007, http://news.bbc.co.uk/2/hi/middle-east/6757305.stm
62. See, e.g., CONSTITUIÇAO FEDERAL [C.F.] art. 77, para. 1 (Braz.), translated in 3 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Rüdiger Wolfrum & Rainer Grote eds., 2009) ("[Ejection of the President of the Republic includes election of the Vice President registered with him."); id. art. 79, para. 1 ("[T]he Vice President of the Republic... assist[s] the President whenever called by the President for special missions.").
63. Richard Albert, The Evolving Vice Presidency, 78 TEMP. L. REV. 811, 874 (2005).
64. 55.Clifford Krauss, Argentine President Is Trying to Keep Coalition Together, N.Y. TIMES, Oct. 9, 2000, at A4.
65. Alexei Barrionuevo, Vote Creates Unlikely Foe for Leader of Argentina, N.Y. TIMES, Nov. 30, 2008, at A6.
66. Indeed, as one article discusses, the range of prominent powers held by presidents can include "the president's exclusive discretion to dissolve parliament (Italy), the requirement of countersignatures of cabinet decrees (Italy), suspensory veto over legislation (Czech Republic, Slovakia), the power to decree new laws (Greece for some time after 1975), and appointments to high offices, sometimes (as in the Czech Republic and Slovakia) including ministries." Scott Mainwaring & Matthew S. Shugart, Juan Linz, Presidentialism, and Democracy: A Critical Appraisal, 29 COMP. POL. 449, 451 (1997).
67. See supra note 29 and accompanying text.
68. See Steven G. Calabresi & Christopher S. Yoo, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH 30-39 (2008) (noting the historical accounts of the long-standing preference for strong executive power by Gordon Wood and Charles Thach). This Article is not meant to agree or disagree with arguments made by those like Calabresi and Yoo in favor of a unitary executive. I am not making an argument about the historical understanding of the President over other Executive Branch officials; I am merely discussing historical understandings about the range and diversity of those in the Executive Branch, not their relative power compared to one another. Also not making an argument about the relative power of the Executive Branch, Akhil Reed Amar and Vik Amar state: We use the term "unitary" executive to refer only to a White House in which the President and Vice President are of the same party. The term has a different meaning in cases and literature addressing the extent to which separation of powers principles give the President countermand or removal power over individuals and agencies who are located in the executive branch or who are exercising executive power.
69. Akhil Reed Amar & Vik Amar, President Quayle?, 78 Va. L. Rev. 913, 923 n.43 (1992).
70. See, e.g., Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787 - 1801, 115 YALE L.J. 1256, 1271-72 (2006) (arguing that textual evidence suggests that the framers did not intend for the President to have such broad powers).
71. See, e.g., Michael Sevi, Original Intent, Timetables, and Iraq: The Founders' Views on War Powers, 13 TEX. REV. L. & POL. 73, 80 (2008) (finding that seven of eight states that adopted new constitutions between 1776 and 1787 included provisions for reducing executive power, including, inter alia, "destroying the unity of the executive office and instituting an executive council, which made the governor more a chairman of the board than a singular leader").
72. See, e.g., WILLI PAUL ADAMS, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE MAKING OF THE STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA 265 (Rita Kimber & Robert Kimber trans., expanded ed., Rowman & Littlefield Publishers, Inc. 2001) (1973) (discussing provisions of South Carolina's constitution of 1776 requiring council approval of certain executive decisions);
73. MARC W. KRUMAN, BETWEEN AUTHORITY AND LIBERTY: STATE CONSTITUTION MAKING IN REVOLUTIONARY AMERICA 120 (1997) (discussing provisions of an early version of the constitution of Maryland requiring the governor to obtain the approval of an executive council).
74. See 5 FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES 2791 (Francis Newton Thorpe ed., 1909) (quoting language from the North Carolina constitution as representative of state constitutional treatment of these councils).
75. ADAMS, supra note 62, at 272-73.
76. See CALABRESI & YOO, supra note 59, at 31 ("The majority of these state constitutions required governors to obtain the consent of a council of state chosen by the legislature before taking any major executive action.").
77. Pa. CONST. § 19 (1776) (repealed 1790);
78. see also J. PAUL SELSAM, THE PENNSYLVANIA CONSTITUTION OF 1776, at 194-195 (1971) (discussing the plural executive created by Pennsylvania's 1776 constitution and its provisions for separate and staggered elections for councilors).
79. See ARTS. OF CONFEDERATION art. X (describing the executive powers of the "committee of the States");
80. see also PAUL CHRISTOPHER MANUEL & ANNE MARIE CAMM1SA, CHECKS & BALANCES? 60 (1999) (remarking that the Articles of Confederation did not have a separate executive branch).
81. See ARTS. OF CONFEDERATION art. IX, § 5 (stating that Congress has the power to appoint a "Committee of the States" and "such other committees ... as may be necessary for managing the general affairs of the United States").
82. See, e.g., CALABRESI & YOO, supra note 59, at 30 (noting the framers' "disdain for the weak executive branches created for the federal government by the Articles of Confederation and for the states by the post-1776 state constitutions").
83. See U.S. CONST, art. II, § 2 ("The President... may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.").
84. See id. art. I, § 3 ("The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.").
85. See id. art. II, § 1, amended by U.S. CONST, amend. XII ("The Electors shall meet in their respective States .... And they shall make a List of all the Persons voted for, and of the Number of Votes for each .... 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.").
86. See id. art. II, § 1, amended by U.S. CONST, amend. XXV ("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 said Office, the same shall devolve on the Vice President....").
87. See Marshall, supra note 29, at 2451, 2450-2451 (noting that the office of attorney general existed in all thirteen states at the time of the founding and that "[a]s the nation matured, many states created independent attorneys general and afforded the Office even greater autonomy by making it a popularly elected position").
88. See Office of the Attorney General, http://www.state.ri.us/govrracker/ index.php?page=DetailDeptAgency&eid=3877 (reporting that the office has been an elected position since its creation in 1650).
89. See Marshall, supra note 29, at 2451 (citing Ohio's first constitution as an example of a state dispersing the executive power over several independent officers).
90. Charles O. Paullin, The Vice President and the Cabinet, 29 AM. HIST. REV. 496, 496-500 (1924) (discussing the history of the vice-presidential role in cabinet meetings).
91. An example from around the time of the Twelfth Amendment serves to prove this point. Aaron Burr, serving as Vice President during President Thomas Jefferson's time in office, was widely ignored, and in retaliation Burr once cast a tie-breaking vote as President of the Senate against Jefferson's wishes. See JULES WiTCOVER, CRAPSHOOT: Rolling THE DICE ON THE VICE PRESIDENCY 22 (1992).
92. See U.S. CONST, art. II, § 1, amended by U.S. CONST, amend. XXII ("The Electors shall... vote by Ballot for two persons .... The Person having the greatest Number of Votes shall be the President.... [A]fter the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President.").
93. 13 ANNALS OF CONG. 178 (1803) (statement of Sen. Tracy) ("[T]he ruling party of the day, ha[s] brought forward this amendment, for the purpose of preventing the choice of a Federal Vice President at the next election.");
94. see also ACKERMAN, supra note 14, at 204 (" By requiring the electors to vote separately for the two offices, they would prevent the Federalists from slipping their man into second place.").
95. Statements in support of a plural executive were made by several members of the Committee on Detail debating the matter. FOUNDING THE AMERICAN PRESIDENCY 31-32, 33 & n.3 (Richard J. Ellis ed., 1999).
96. See James Madison, DEBATES IN THE FEDERAL CONVENTION OF 1787, at 25 (Gaillard Hunt & James Brown Scott eds., Oxford University Press 1920) (1893) ("[T]he Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection.").
97. See FOUNDING THE AMERICAN PRESIDENCY, supra note 81, at 33 ("The New Jersey Plan left unspecified the number of persons who would make up the federal executive, but it clearly anticipated that it would be more than one person.").
98. See id. at 37 (stating that a one-person executive resulted from the vote).
99. See Calabresi & YOO, supra note 59, at 30 (discussing how the framers' disdain for the weak executive branch in the Articles of Confederation led them to the theory of the unitary executive).
100. 86.U.S. CONST, art. II, § 1 (emphasis added).
101. See ACKERMAN, supra note 14, at 19 ("Washington... included both Hamilton and Jefferson in his first cabinet, and desperately sought to keep these great rivals in harness. But it was not to be. By the end of his first administration, Jefferson and Hamilton were already locked in bitter conflict.").
102. See JOHN FERLING, JOHN ADAMS: A LIFE 332 (1992) (reviewing the results of the election, in which Adams received seventy-one votes to Jefferson's sixty-eight).
103. See id. at 341 (recounting Adams's attempts to include the two Republicans in the envoy to Paris).
104. See, e.g., The FEDERALIST No. 10, at 77 (James Madison) (Clinton Rossiter ed., 1961) ("[A]mong the numerous advantages promised by a well-constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.");
105. John F. Hoadley, The Emergence of Political Parties in Congress, 1789-1803, 74 Am. POL. SCI. REV. 757, 778 (1980) ("[W]hen the new government was created by the Constitution, most political leaders shared a strong anti-party tradition. Parties were perceived as agencies which would hinder the progress of good government....").
106. See, e.g., David Brion Davis & Steven Mintz, The Boisterous Sea of Liberty 259-60 (1998) (noting that despite a belief that parties were evil, divisions among national leaders emerged as early as 1791 and the first political party evolved in 1794).
107. JOHN F. HOADLEY, ORIGINS OF AMERICAN POLITICAL PARTIES 1789-1803, at 144(1986).
108. See Letter from Thomas Jefferson to Spencer Roane (Sept. 6, 1819), in 15 THE WRITINGS OF THOMAS JEFFERSON 212, 212 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1904) ("The revolution of 1800 ... was as real a revolution in the principles of our government as that of 1776 was in its form; not effected indeed by the sword, as that, but by the rational and peaceable instrument of reform, the suffrage of the people.").
109. See Lolabel House, A Study of the Twelfth Amendment of the Constitution of the United States 42 (1901) (unpublished Ph.D. dissertation, University of Pennsylvania) (recapping the legislative genesis of the Amendment's requirement that votes be designated for a specific office).
110. DAVID K. WATSON, 2 THE CONSTITUTION OF THE UNITED STATES: ITS HISTORY, APPLICATION AND CONSTRUCTION 1557 (1910).
111. See House, supra note 94, at 42 (quoting an earlier version of the Amendment which stated "[t]hat in all future elections of President and Vice-President, the persons shall be particularly designated, by declaring which is voted for as President and which as Vice-President").
112. Vikram David Amar, The Cheney Decision-A Missed Chance to Straighten Out Some Muddled Issues, 2004 Cato Sup. Ct. Rev. 185, 204. As Mike Seidman pointed out to me in commenting on a draft of this Article, even as they resolved the issue of designation, the drafters of the Twelfth Amendment could have made it more likely to have a President from one party and a Vice President from another party, because they could have created one set of electors to choose the President and one set of electors to choose the Vice President.
113. Marshall, supra note 29, at 2452.
114. See U.S. CONST, amend. XII ("The Electors shall meet in their respective states and vote by ballot for President and Vice-president... and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice president....") (emphasis added).
115. Id.
116. See House, supra note 94, at 51 (discussing how this scenario is possible if an election is decided by Congress).
117. 102.For instance, John Quincy Adams objected to the Twelfth Amendment because he felt it was "intendfed] to prevent a federal Vice President from being chosen." NEAL R. PEIRCE & LAWRENCE D. LONGLEY, THE PEOPLE'S PRESIDENT: THE ELECTORAL COLLEGE IN AMERICA AND THE DIRECT VOTE ALTERNATIVE 43 (1981) (quoting 13 Annals of Cong. 128(1803)).
118. A similar proposal had been discussed in 1797 in both houses of Congress, 1798 in the Senate, 1799 in the House of Representatives, and was passed by the House of Representatives on May 1, 1802 but did not receive the requisite two-thirds majority. Id. at 42. Part-but not all-of the disagreement was from the Federalists, because all Federalists (except Alexander Hamilton) opposed the Twelfth Amendment. DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE JEFFERSONIANS, 1801-1829, at 40 (2001).
119. See Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the Second Half-Century, 26 Harv. J.L. & PUB. POL'Y 667, 738 (2003) (recounting Lincoln's decision to add Johnson to the ticket to appeal to Northern Democrats and border-state Unionists).
120. In this way, then, the Article tells a story about constitutional change different from that told by David Strauss, who argues that constitutional amendments have proved to be largely irrelevant. See David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. Rev. 1457, 1459 (2001) ("[Constitutional amendments have not been an important means of changing the constitutional order."). In the case of the internal structure of the Executive Branch, the Twelfth Amendment-or perhaps more importantly, the Twelfth Amendment's rules plus how those rules interacted with subsequent political and legal realities-did have significant consequences.
121. Amar & Amar, supra note 59, at 925.
122. See Beverly J. Ross & William Josephson, The Electoral College and the Popular Vote, 12 J.L. & POL. 665, 690 (1996) ("In the first 150 years of the nation's history, assertions were made in judicial proceedings that electors must cast their ballots in accordance with the popular vote of their states. These assertions relied on common law theories of contract or public officer duties.").
123. JAMES Q. WILSON, AMERICAN GOVERNMENT: INSTITUTIONS AND POLICIES 190 (1980).
124. See Albert, supra note 54, at 831-32 (cataloguing the slights upon the vice presidency from all manner of American statesmen).
125. LOUIS CLINTON HATCH, A HISTORY OF THE VICE-PRESIDENCY OF THE UNITED STATES 71 (1934).
126. See supra notes 93-97 and accompanying text.
127. See Amar & Amar, supra note 59, at 943, 943-44 (arguing that the system of tying presidential and vice-presidential candidates "seems more an inherited product of the nineteenth century's political climate and the twentieth century's inattention than a deliberate, self-conscious choice").
128. See House, supra note 94, at 50-51 ("The enormous consequence of [the Twelfth Amendment] has been to make party government constitutional. It has made it imperative that the President and Vice-President be party representatives and practically impossible that they be chosen at the outset from different parties, unless the election devolves upon the House or Senate.").
129. Goldstein, supra note 43, at 47.
130. CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA 55 (1966).