Guest Essayist: Joe Postell, University of Colorado at Colorado Springs

Article II, Section 1, Clause

6:  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,9  the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

 This clause is the presidential succession clause, establishing procedures for dealing with the death, disability, resignation or removal of the President.   

At first the clause appears rather straightforward.  It declares that the Vice President is next in the line of succession, and that Congress can, by law, establish the remaining line of succession.  However, upon further inspection, there are a few important issues that are not clearly resolved. 

The Convention originally provided that the president of the Senate (which had not yet been determined to be the Vice President) would replace the President in the case of death, disability, resignation or removal.  In late August Gouvernor Morris suggested replacing the president of the Senate with the Chief Justice.  In early September the Convention settled on the Vice President. 

The first issue is whether the Vice President becomes the President in such cases, or whether the Vice President merely becomes the acting President.  This issue is important because if the VP merely becomes the acting President, he would be a temporary placeholder while a new President is selected.  In fact, the clause suggests that a special election for President be called in the case of the President’s death, disability, resignation or removal, rather than the automatic ascension of the VP to the office.  James Madison actually insisted upon the possibility of a special election for the President at the Convention. 

The other ambiguity of the clause had to do with the issue of the President’s “disability.”  As John Dickinson noted at the Constitutional Convention, “what is the extent of the term ‘disability’ & who is to be the judge of it?”  If the Congress can declare the President to be disabled, the Constitution’s separation of powers would be subverted by basically giving the Congress the power to choose the President.   

Both ambiguities were resolved by the Twenty-Fifth amendment, with an assist from John Tyler.  When President William Henry Harrison passed away in 1841, Tyler boldly claimed that he was not merely the VP acting as President, but was the President for the remainder of Harrison’s elected term.  By doing so he prevented the possibility that an election would be called to establish a new President (Harrison passed away very early in his term, a result of contracting pneumonia at his unusually long Inaugural Address.) 

Tyler was criticized for this action, but his precedent has stood the test of time.  The Twenty-Fifth Amendment, passed in 1967, codifies the Tyler precedent by stating that “the Vice President shall become President” if the President is removed from office, resigns, or passes away.  However, in the case of presidential disability (formally communicated to the Speaker of the House and the President pro tempore of the Senate), the Vice President merely becomes “Acting President.”

Amendment XXV also cleared up the issue of presidential disability by creating a procedure for establishing the president’s disability.  While the Tyler precedent helped ease the transition of power from President to VP in cases of death, resignation, or removal of the President, it also made VPs hesitate before assuming the presidency in the case of disability.  This is because the Tyler precedent suggested that whenever a VP assumed the presidency, he became President in full, not just Acting President.  Thus, if the President’s disability were cured, there would be a question whether the VP needed to revert back to his earlier position. 

After President Garfield was shot in 1881, for example, he was incapacitated for eighty days, while his VP hesitated to assume the office in case Garfield would recover.  The same issue occurred following Woodrow Wilson’s stroke in 1919. 

The Twenty-Fifth Amendment established a protocol for determining whether a disability existed, and how the President could be restored to power after the disability is gone.  It allows the President to declare himself disabled, and to resume the office when he formally declares that the disability has ended. 

In situations where the President is unable (or unwilling) to declare himself disabled, the Vice President, along with a majority of the cabinet, is authorized to declare the disability.  If the President disagrees with the decision of the VP and the cabinet, Congress has to resolve the disagreement. 

The succession of the chief executive of the country is, thankfully, an issue that has not caused great discord in American politics.  But the Framers were well aware that succession to the chief executive power, which was usually the throne, was an issue that had fractured societies for centuries.  As with so many other important constitutional questions, the Framers refused to allow these issues to be settled by appeals to the sword.  Rather, they established a framework for such contentious issues to be resolved by law, rather than arbitrary force or will. 

Guest Essayist: Joe Postell, University of Colorado at Colorado Springs

Article 1, Section 3, Clause 2
2:  Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes.  The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

This seemingly-minor provision of the Constitution is in fact highly important.  Although we rarely pause to consider it today, deciding that one-third of the members of the Senate would be up for re-election every two years is counter-intuitive.  Why not just say that each senator has a six year term and hold elections for the entire Senate every six years?  The House of Representatives does not have staggered terms, in which half of the Members are elected each year.  Why is the Senate different?

The most important characteristic the Senate is supposed to provide is stability, as James Madison makes clear in Federalists 62 and 63.  A huge problem during the 1780s was the mutability, or constant changing, of state laws.  The assumption of the Founders was that elections would tend to oust a relatively large percentage of incumbents in each election cycle, which would produce mutability in the laws.

Today about 90% of incumbents are re-elected in an average election cycle.  But at the time of the Founding, incumbents were not as safe.  Joseph Story wrote in his Commentaries on the Constitution that “mutability in the public councils, arising from a rapid succession of new members” creates “serious mischiefs.  It is a well known fact in the history of the states, that every new election changes nearly or quite one half of its representatives.”  And the more new members in a legislative assembly, the more changes will be made to the laws, producing greater instability.  According to Story, “experience demonstrates, that a continual change, even of good measures, is inconsistent with every rule of prudence and every prospect of success.”

Why is instability in the laws so bad?  Madison gives five reasons in Federalist 62, all of which are highly relevant today.

First, instability is harmful because it undermines foreign policy.  The Senate has an important role in foreign affairs.  If the character of the Senate changes dramatically at one time, due to every member being elected, it could result in a dramatic shift in foreign policy.  This would make us seem less trustworthy to other nations in the world, and make them less agreeable to our interests.

Second, instability in the laws “poisons the blessings of liberty itself.”  This is because it undermines the rule of law, which requires that laws be settled and known to everyone.  But if the laws are constantly changing because the legislature is constantly changing, “It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”  Re-electing all senators at one time would undermine the stability in the laws necessary to preserve the rule of law.

Third, instability in the laws gives an “unreasonable advantage…to the sagacious, the enterprising, and the moneyed few, over the industrious” of the people.  This is because changes in the laws will be known and tracked by the wealthy, who will be able to take advantage of the new laws.  “Every new regulation concerning commerce,” Madison explains, “presents a new harvest to those who can watch the change, and can trace its consequences.”  Joseph Story concurred, that “the instability of public councils gives an unreasonable advantage to the sagacious, the cunning, and the monied capitalists.” Thus, instability in the laws, caused by volatility in the Senate, allows insiders to take advantage of all the new regulations.

Fourth, instability dampens entrepreneurship.  Who will be willing to consider new business opportunities if there is a concern that the government’s laws may change tomorrow?  Economies succeed when laws are stable and not constantly changing.  Madison writes, “What prudent merchant will hazard his fortunes in any new branch of commerce, when he knows not but that his plans may be rendered unlawful before they can be executed?”  Stability in the Senate ensures that entrepreneurs can create jobs without being afraid of what government might do in the near future.

But the fifth and “most deplorable effect” of constantly changing laws, Madison writes, “is that diminution of attachment and reverence” for the law which it produces in the people.  When the laws are constantly changing, citizens’ faith in their government and in their representatives is reduced.  This is the worst effect of unstable laws produced by unstable legislatures.

The primary purpose of the Senate is to produce stability in the government and in the laws produced by the government.  This provision of the Constitution promotes stability by ensuring that only one-third of all senators are up for re-election in a given election cycle.

Posted in Analyzing the Constitution Essay Archives | 12 Comments »

Wednesday, May 12th, 2010

Federalist #11

Over the past century, as America has become more involved in world affairs, many are wondering what the Founders would have said about such a trend.  Federalist #11 gives us a glimpse of how the Founders approached questions of international politics.  What we see is that the Founders were neither isolationists nor internationalists.  Their approach was to put America’s security and interests first, and to preserve American sovereignty and self-determination, but to adopt an active role in the world in order to achieve that end.

The 11th essay is part of a series (running from Federalist 2 through 14) on preserving the Union.  The 11th essay argues that preserving the Union will make the country stronger in its commerce with foreign nations.  Alexander Hamilton, writing as Publius, explains that European nations are jealous of America, because America will eventually be strong enough to prevent Europe from colonizing the Western Hemisphere.  (We see the roots of the Monroe Doctrine already in this essay.)  The nations of Europe “look forward, to what this country is capable of becoming, with painful solicitude.”  Publius predicts that the European countries will try to weaken and undermine the fledgling country.  If the country is not unified, these attempts will be more effective.

But by remaining unified, Publius argues, America can gain the upper hand over Europe.  By gaining strength, America can make its own policy as a fully independent nation rather than follow the dictates of Europe.  With its combined strength, America could enact regulations preventing countries from trading in its markets, thus leading them to adopt a friendlier stance towards American merchants.

Furthermore, a unified America could build a dominant navy.  This navy would protect America from attack, but more importantly, it would also allow America to receive equal and fair terms of trade, throwing its naval support “into the scale of either of two contending parties” in Europe.  America could use its navy to ensure independence, demanding equal treatment as a nation equal in standing to those of Europe.  Hamilton writes that “The rights of neutrality will only be respected, when they are defended by an adequate power.  A nation, despicable by its weakness, forfeits even the privilege of being neutral.”

A weak nation becomes the servant of stronger countries, and unity is the key to building American strength.  Hamilton goes so far as to say that America “might make herself the admiration and envy of the world” by adopting the right policies.  Alternatively, if union is abandoned, other countries would be able “to prescribe the conditions of our political existence.”

Hamilton looks to the future, envisioning the eventual position of America as a strong country which serves as an example of liberty to the world.  He goes so far as to write that we should “aim at an ascendant in the system of American affairs.”  Through Union America will “be able to dictate the terms of the connection between the old and the new world.”

But in contrast to nations which use their strength for self-aggrandizement, America can use its standing in the world to protect the sovereignty and independence of nations from European interference.  The Founders were not isolationists, yet they did believe that their principles put strong limits on what they could do in international affairs.  Their principles required that military power be used to defend American sovereignty, but defending sovereignty requires respecting the sovereignty of other countries.

In this essay, we see that Hamilton and his readers were not opposed to American involvement in world affairs.  But they did not think that the purpose of foreign policy was not to go on a crusade for liberty around the world.  Rather, they sought to be involved in world affairs in order to secure their independence.

Counter intuitively, the Founders believed that the only way to be independent of the entangling affairs of other nations was to be active in the world.  Only by asserting itself on the world stage could America become strong enough to dictate its own affairs in the pursuit of its interests.  If America isolated itself, the Founders believed, it would be placing itself in a position of weakness and disadvantage.

The wisdom of the Framers is especially relevant today, when Americans are concerned about becoming the “world policeman” yet wish to avoid isolating themselves from the rest of the world.  The Founders’ principles of security and respect for the sovereignty of other nations provide a middle ground between isolationism and internationalism.

Dr. Joe Postell is Assistant Director of the Center for American Studies at the Heritage Foundation


Guest Blogger: Joseph Postell, Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation

In the midst of discussing questions of tax power and policy, Federalist 35 ventures into a fascinating argument about the nature of representation in a democratic republic – a very relevant question today.

The argument about representation is a response to an Anti-Federalist claim that the House of Representatives will be too small to contain citizens from all classes and occupations, and that this will prevent “a due sympathy between the representative body and its constituents.”

When we first read this, we can’t help but identify with the Anti-Federalists.  In 21st Century America there could hardly be less sympathy between our representative body and its constituents!

But upon further investigation, Hamilton argues, we will see that the Anti-Federalists’ argument is “made up of nothing but fair sounding words.”  Most significantly, he rejects the call for “an actual representation of all classes of the people by persons of each class.”

There are two related problems with the Anti-Federalists’ argument, according to Hamilton.  The first is that it misunderstands the nature of representation.  The Anti-Federalists presumed that representation should produce a legislature that is a “mirror” of the public at large.  It should look like a microcosm of the people themselves if they could assemble directly for the purpose of making laws.  Representation, in this view, is merely a practical mechanism which should reflect direct democracy as much as possible.  It should not refine public opinion.

The second but related problem with the Anti-Federalists’ argument, Hamilton claims, is that representatives are not mere guardians of a particular interest.  They are supposed to pursue the common good of the whole society.  To argue that a legislative body should contain a composite of classes and occupations equal to the society at large is to imply that a cobbler’s interest can only be pursued by a cobbler, that an attorney’s interest can only be pursued by an attorney, and so on.

Such a claim is an affront to the Founders’ principle of equality, because it assumes that it is impossible for representatives to transcend the particular interests of society and pursue the good which is common to all.  It implies that our interests are so different that they cannot be reconciled, and that the only alternative we have is a constant struggle of class against class, economic interest against economic interest.

In essence, the basic question is this: are we merely the sum of a variety of interests, or is there something higher than our parts?  Should our legislature simply be composed of a variety of classes and occupations, each looking out for itself, or should representatives be chosen who can transcend these particular interests and combine them for the good of the whole?

Hamilton and the Founders were not so naïve as to think that various economic interests will always be harmonious.  But they argued that representation would subordinate the pursuit of these particular interests to the pursuit of the general good.  The way to do this is not to give every interest a seat at the table, but to keep representatives accountable to all of their constituents.

Hamilton argues, “Is it not natural that a man who is a candidate for the favor of his people and who is dependent on the suffrages of his fellow-citizens…should take care to inform himself of their dispositions and inclinations and should be willing to allow them the proper degree of influence upon his conduct?”  Electoral accountability is the way to ensure that representatives pursue the public good, because it forces representatives to be informed of all of the interests of their constituents.

“This dependence” on the votes of the people, Hamilton concludes “and the necessity of being bound himself and his posterity by the laws to which he gives his assent…are the only strong chords of sympathy between the representatives and the government.”

In today’s politics, it often seems like representatives more often seek to satisfy particular interest groups than pursue the common good of the whole.  Some have argued that the Founders wanted it to be this way.  But in Federalist 35 Hamilton reminds us that a representative republic allows us to be governed by those who place the public good over the clash of particular interests.

Most importantly, we can only pursue the common good by abandoning the idea of separating ourselves into classes.  Dividing ourselves into separate classes overlooks the natural human equality that is the basis of our rights, and it overlooks the common interests and affections that bind us together as Americans.

Joseph Postell is the Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.  He recently received his Ph.D. from the University of Dallas.


Tuesday, June 15th, 2010

Guest Essayist: Joseph Postell, Assistant Director of the B. Kenneth Simon Center for American Studies at the Heritage Foundation

One can only imagine the difficulty James Madison had writing Federalist 40.  The question was this: did the Constitutional Convention overstep its authority by abolishing the Articles of Confederation in favor of a new government, rather than merely reforming the Articles?

Consider that when the Convention assembled in the summer of 1787, a government already existed in America.  Although it had failed in practice, the delegates were supposed to revise, not to abolish the Articles.  Moreover, according to the Articles, changes had to be ratified by all of the states in order to become law.

Imagine if the same thing happened today – if the states established a convention to revise the Constitution, but which instead called for scrapping the entire document and building a new one from scratch…and which created entirely new procedures for ratifying those changes!

Indeed, there were difficult legal questions regarding what the Constitutional Convention did.

Madison’s response to these issues seeks to answer two questions: “whether the Convention were authorized to frame and propose this mixed Constitution,” and “how far considerations of duty…could have supplied any defect of regular authority.”

In answering the first question, Madison defends the legality of the Convention’s recommendations.  In the first place, Madison replies, the delegates’ duty was to establish a government adequate to its purposes as well as to revise the Articles.  But if these two objectives were incompatible, “Which was the more important, which the less important part?”  The objective of forming an adequate government, he implies, trumps the delegates’ assignment to revise the Articles.

Furthermore, Madison argues, how do we know when we have crossed the line from revising a form of government to abolishing it?  Can we “mark the boundary” between “alterations and further provisions” and “transmutation of the government”?  At what point does altering the government become destroying it?

Because the Constitution preserved the essentials of the Articles of Confederation, Madison alleges, the delegates simply revised the Articles rather than abolish them.  Under the Constitution “the states are regarded as distinct and independent sovereigns.”  Furthermore, “One branch of the new government [the Senate] is to be appointed by these [State] legislatures.”  Finally, “in the new government as in the old, the general powers are limited, and…the states in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.”

Madison admits that the Convention departed from the Articles in one respect: the amendment process.  However, Madison argues that this was good, because of “the absurdity of subjecting the fate of 12 states, to the perverseness or corruption of a thirteenth.”

Having answered the first question, Madison asks the second question – whether the delegates’ duty to their country could compensate for any defect of authority.

In response, Madison reminds his readers that the Convention merely proposed a Constitution for the people to approve or reject.  Without ratification, the Convention’s plan was “of no more consequence than the paper on which it was written.”

The Constitution was ratified by the people, not by the Convention.  How could the people lack the legal authority to change their Constitution?  The delegates, Madison continues, “must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence” to forms “would render nominal and nugatory, the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’”

The lessons of Federalist 40 are important even today.  Madison explains that in a free society the people are the masters of the government, rather than vice versa.  In a situation where the government cannot adequately pursue the good of the people, it is the right of the people to revise the forms of government to ensure that the substance of government is in accordance with first principles.

The Founders, Madison explains, did not intend to create a rigid government, forever impervious to change.  Such a government would deny the people the basic right to govern themselves.  Instead, the Founders left us an amendment process because they foresaw the need for future changes.

However, Madison also cautions us against changing “the essentials” of the Constitution: our federal system, the separation of powers, and the limited powers of the national government.  Though we should always determine our constitutional forms, we have the responsibility to uphold the principles of the Declaration of Independence: that government exists to protect natural rights and must be limited in order to do so.

Tuesday, June 22nd, 2010

Joseph Postell is the Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.  He recently received his Ph.D. from the University of Dallas.