OPINON: Moving Back to an Apolitical Executive & Reclaiming the Moral Branch of Government

By Hutchinson Fann (PO ’21)

As Democratic presidential candidates emerge for a chance to battle President Trump in 2020, it is strange to remember that under our original Constitution, one of these people could instead become the next Vice President. Before the 12th Amendment was passed in 1804, electors cast votes for two candidates, and they could not designate which was their first- and second-choice. The winner became President, and the second-place finisher became Vice President.

This original structure of executive branch elections is commonly regarded as an unworkable technical mistake. Its results would certainly be comical in our current political environment: Hillary Clinton would be Donald Trump’s current Vice President, and Trump could soon find himself as second-in-command to a President Biden, Sanders, or Buttigieg.

But I want to argue here that this original executive structure reveals an intention behind the office that we would do well to remember. The original office seems unworkable to us today because it was meant to be something fundamentally different—a mostly apolitical executive tasked with protecting the entire national interest. And this, strangely enough, might be closer to the office the rest of our national government is still structured to accommodate.

To begin, the President in the original Constitution was elected in a manner insulated as many as three times from the people, suggesting it was not meant to be an office reflective of the popular voice. Electors were chosen in a manner decided by the state legislatures and cast two general votes, unable to differentiate their first choice from their second. If one candidate did not receive a majority of the votes, the election moved to the House of Representatives, which could choose any of the top five finishing candidates to become president. This final option was meant to be often decisive: as Joshua Hawley writes in the William & Mary Law Review, “[The Framers] saw the electoral college as a sort of presidential primary, narrowing the field, with the House making the final decision ‘nineteen times in twenty.’”

The election of the second-place finisher as the Vice President further suggests that the Executive was not meant to be an explicitly political office, for this structure did not allow for any reasonable political coordination. In order for two parties to compete under this system, each party would have to try to get some of their electors to not vote for the candidate they wanted to be their Vice President. For if a number of electors all voted for the same two candidates, then the two candidates would tie and the election would be thrown to House of Representatives—which could choose from any of the top five finishers.

But if the Executive Branch was not meant to be a political office furnishing a mandate, then what was it meant to be? In the Constitutional Convention, the word thrown out to describe the office was “Patriot King,” a leader tasked with protecting the entire national interest from encroachments by Congress. This idea of protection seems to follow the President’s one explicit policy power: the veto. And this follows the President’s unique oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” (Indeed, this oath raises the question of whether the Constitution calls for executive review more explicitly than it does for judicial review. That, however, is a debate for another day.)

Under this idea of protection, it can make sense to have two unattached statesmen that form a single administration: the President and Vice-President could hail from different regions (electors, under the original rules, had to vote for at least one candidate who wasn’t from their home state) and they could coordinate to protect the interests of people from the entire nation.

Despite this possible intention, however, the original executive branch was fatally susceptible to politics. It is often said that the Framers did not anticipate political parties, and here it makes sense to say that they simply did not anticipate the political potential of the executive branch. Because of its more unified structure, the executive branch could act quickly and energetically where Congress could not—a fearsome political tool on which the two emerging parties quickly capitalized.

In 1800 the office reached a breaking point when two Republican candidates, Thomas Jefferson and Aaron Burr, tried to coordinate their election but tied, throwing the election to a Federalist Congress. Ultimately, this tie led to the 12th Amendment: by this point, the political parties had become entrenched and it was clear that the original structure of the executive branch could not square with the realities of political competition.

But the executive branch’s ultimate and fatal susceptibility to political parties does not mean its initial intentions were not valuable. The executive branch was the Constitution’s major divergence from the Articles of Confederation, and one of its primary purposes was “energy”—to act quickly and decisively where Congress had not been able in the incipient years of the Republic. Another purpose was protection. Nowhere in the Constitutional deliberations was the executive said to usurp or even complement Congress’s role as the representative branch.

There are more than a few reasons to think that a return to some of the original intentions behind the Executive Office would be a good thing for our Republic. For one, the bloated, politicized Presidency today causes most Americans to conceive of the political system in a manner very different from how it is actual set up to function. When Americans think of politics, they do what psychologist Daniel Kahneman called “attribute substitution” and think predominantly of the president—it is the exciting office covered in the news. This focus on the presidency seems to often come at the cost of a focus on Congress, the actual lawmakers of our country. 77% of millennials cannot name one of their Senators; turnout for Congressional midterms hovers below 10%; and, consequently, Congresspeople are consistently, blindly re-elected at over a 90% clip, despite less than 20% approval ratings.

Democratic Presidential candidate Pete Buttigieg recently characterized the Presidency as a “moral office,” and I think this idea is on the right track: the President takes an oath to “support and defend the Constitution,” not to be faithful to any political agenda. Looking back at the original Constitution, I think this is closer to the executive office we were meant to have: two unattached statesmen tasked with protecting the entire national interest.

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