Guest Essayist: Gary S. McCaleb, Senior Counsel, Alliance Defense Fund

Article II, Section 1, Clause 4

4:  The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

“Chusing the Electors,” or “Interstices and the Constitution”

“Interstice” is a word that has long bemused me for some long-forgotten reason.  Interstice refers to the space between things; usually small gaps within a larger framework.  You can’t escape interstices—you will find interstices even between the most precisely machined and measured surfaces.

The language of our Constitution might be thought of as being precisely machined—each part fits “just so” with the next part, and the whole has worked so well that it has been amended just 17 times since the it and the Bill of Rights became effective over 200 years ago.  Having so few gaps that have had to be plugged by amendments over the years suggests that the Constitution’s interstices are pretty darn small.

The clause of which I speak today reinforces that notion, as it exemplifies the Founders’ attention to detail in their drafting.  It reads, “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

This was originally numbered as Clause 4 of Article II, Section I, but, well, an excessively large interstitial gap showed up in the original Clause 3, which dealt with how votes were counted in the Electoral College.  The election of 1796 revealed that under the original Clause 3 vote-counting scheme, the nation could wind up with a president from one party and a vice-president from the opposition party.  And the election of 1800 further exposed the flaw, as it became evident then that a straight party-line vote by the electors would result in just that scenario:  a president and vice-president from different parties.  That was scarcely a recipe for smooth government.

So the 12th amendment was enacted to solve that problem; the original Clause 3 was thus superseded, and voilá, the original Clause 4 was renumbered to Clause 3 with its original text unchanged.

Of course, this short Clause does not stand alone in the great legal scheme of things; Congress had to act to set the date, and it did; 3 U.S.C. § 7 reads, “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.”  So despite the great hullabaloo about the popular elections in November, the “real” election takes place in December, when the Electoral College votes.

By deferring to Congress to set the exact date for the electors to vote, the Framers built flexibility into the Constitutional system so that minor procedural adjustments could be made without invoking the cumbersome amendment process.  That approach reflects great wisdom, when you consider that these men who drafted with quill pens created a document that functions effectively in an age of near-instantaneous communication.  So even a humble, small procedural clause in the end demonstrates just how finely crafted this document is…!

Gary McCaleb serves as senior counsel for the Alliance Defense Fund at its Team Resource Center in Scottsdale, Arizona, where he leads a litigation team comprised of attorneys and support staff at offices in District of Colombia, Arizona, Kansas, California, Louisiana, Georgia, and Tennessee. He has litigated religious liberty and free speech cases in federal and state trial and appellate courts throughout the United States. McCaleb graduated with honors from Regent University School of Law in 1997 and is admitted to the Arizona state bar.

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