Earlier this month, I became aware via the Legal History Blog that The Amendments Project at Harvard University had released a searchable archive of nearly all amendments that have been proposed to the US Constitution. Jill Lepore and David Woods Kemper are to thank for this incredible undertaking. The archive is available here.
From the announcement:
In total, the Amendments Project has compiled over 20,000 proposed amendments, including 11,000 officially introduced in Congress and 9,000 more put forward through petition. Compiling data from congressional records, the Congressional Petitions Database, and online petitions, the fully searchable database is the most comprehensive archive of attempted constitutional amendments to date. The search feature allows anyone to sort amendments by topic, date, sponsor, party affiliation, and type (e.g., petition, bill, etc.).
Naturally, I decided to poke around in the database to see what odd an interesting proposed amendments I could find. One of my favorites was proposed in a December 17, 1844 bill introduced by Ohio Representative Samuel Finley Vinton. Here's how it starts:
From and after the year one thousand eight hundred and sixty, the people in each State, entitled to vote for members of the House of Representatives of the United States, shall elect from among its citizens a candidate for the presidency of the United States; in which election a majority of all the votes given shall be necessary to a choice. If, upon the first vote in any State, no one person shall have a majority of all the votes given, another vote shall be had, which shall be confined to the two persons having the greatest number of votes at the former voting; and if, upon such second vote, the two persons voted for shall have an equal number of votes, the choice between them shall be determined by lot.
At first glance, this seemed straightforward. But the amendment's requirement that each state must elect "from among its citizens" a presidential candidate means that each state will be voting for a different candidate (assuming that one person cannot be a citizen of multiple states). As a result, each state will end up electing a different person to proceed to the next stage of the election process, where things get even more bizarre:
The election of candidates in each State shall be certified to the Congress of the United States; and after the certificates of election in all of the States shall have been transmitted to Congress, uniform balls, equal in number to the whole number of members of the Senate and House of Representatives, shall be deposited in a box; and before depositing thereof, the name of each State in the United States shall be inscribed on as many of said balls as shall be equal to the whole number of its members in both branches of Congress. And in the presence of both houses of Congress a ball shall be drawn out by lot, and the candidate elected by the State the name of which is upon the ball drawn out shall be the President. All of the remaining balls having upon them the name of that State shall then be withdrawn from the box; when, from those still remaining, another ball shall be immediately drawn out, in like manner as the first, and the candidate elected by the State the name of which is on that ball shall be the Vice President.
The following paragraph of the proposed amendment goes on to note that Congress shall pass laws governing the specifics of the process. It further states that "[t]he second and fourth sections of the second article of the constitution of the United States, and the twelfth article of the amendment thereto, shall become null and void on the taking effect of this amendment." It is unclear why Sections Two and Four are targeted for nullification, as they concerns the power of the president and process of impeachment--while Section One concerns the manner of presidential elections. Perhaps a secondary goal of the proposed amendment is to negate the powers of the executive.
One can see that the process isn't entirely random. A candidate who wins the vote in more populous states will end up with more balls in the drawing box, increasing the probability of that candidate's eventual selection. But because each state elects one of its own citizens for the eventual drawing, the ultimate drawing remains largely randomized--as even the most populous states will have a small minority of overall balls in the drawing box.
It is unclear what compelled Vinton to introduce such a proposal. His daughter, Madeline Vinton Dahlgren, wrote a glowing appraisal of his life and career in the Ohio History Journal, which briefly mentions the amendment, giving it a bland description of "regulating the mode of election of the President and the Vice President." But there's no other discussion of the proposal beyond this brief point. Still, Vinton had a fairly accomplished legal career, and had previously been elected to Congress for seven terms before returning to the practice of law. He eventually decided to re-enter politics, and introduced the proposal during this second phase of his political career. He was considered for a number of high-level posts, but declined them. Overall, this doesn't give off the impression of a politician who is an erratic weirdo, likely to fire off extreme legislation and proposed amendments.
A possible explanation is that the amendment was meant to highlight problems with the existing system of presidential elections. Abolishing or reforming the electoral college has long been a subject of proposed amendments (as one will soon learn by perusing the database), and this proposal of a random ball drawing may have been meant as a parody of the existing system. The problematic nature of the vice presidential selection process may also reflect dissatisfaction with the office of the vice president in general, as Vinton, a Whig, was enduring the presidency of John Tyler, who became president after William Henry Harrison died after only 31 days in office. Tyler ended up acting at odds with the Whig Party's agenda, leading to his eventual expulsion from the party in 1841. Vinton, a Whig, likely shared his party's dissatisfaction with their former vice presidential candidate (a possibility bolstered by the tone with which Dahlgren discusses Tyler in her article).
This approach of proposing an amendment as a satirical message wasn't unprecedented at the time. Indeed, only five days earlier, another Ohio Representative, Joshua Reed Giddings, had introduced a petition of Ohio citizens seeking an amendment to the Constitution to condition representation in the legislature by reference to "free inhabitants" only--a change that would reduce the political power of southern states with substantial populations of enslaved people. Many similar petitions and proposals were introduced in Congress around this time, but this one included a noteworthy addition, stating that if apportionment based on free inhabitants was "impracticable," then "the animal property of the free States be represented, as well as the slave property of the slave-holding States." A few moments of thought over how to interpret or implement this last provision reveals it to be a nightmare--does it refer to domesticated animals? Animals in general? What sort of animals? Cows? Chickens? Fish? As it turns out, none of this matters. This language does not appear to be a serious proposal to amend the Constitution to give animals political power--rather it's a political statement against the level of political representation enjoyed by states permitting slavery (albeit by means of drawing an unfortunate parallel between enslaved people and livestock).
Whether Vinton's proposed amendment was similarly meant as more of a political statement than a concrete policy proposal remains unclear. I'll continue digging, and may end up writing more on this and other strange amendment in the near future.
In the meantime, I strongly urge you to check out the proposed amendment database! It's fairly easy to navigate, and, as noted in the announcement quoted above, searches can be tailored in many ways, including by year, party, sponsor, and issue. Jill Lepore and David Kemper are owed a great deal of thanks for this accomplishment.
[UPDATE: August 19, 2023: I've added revisions accounting for the requirement that each state must vote for one of its own citizens, which adds a further level of chaos to the process, but solves a previously-flagged problem of the same person winning both the presidency and vice presidency.]
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