Constitutional Minutia: The Vice Presidency
Posted on Sun Oct 05, 2008 at 09:42:54 AM EST
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Glenn Reynolds keeps writing about the constitutional role of the Vice Presidency issue that came up in the VP debate. Reynolds wrote about the issue in 2007 (I was unconvinced by his argument, but hell, maybe lots of other people were convinced) and now points to Josh Chafetz's piece at TNR. Chafetz gives a historic rundown of the original view of the Vice Presidency in the Constitution:
[O]ur Founding Fathers created a system in which the vice presidency went to the Electoral College runner-up. And even though they didn't anticipate the role that political parties would come to play, they knew enough to understand that this meant that the president and vice president might well be rivals. As a result, the Constitution gives the vice president no executive role at all, other than waiting for the president to die, resign, or become incapacitated. . . . The Founders didn't think that the executive role of the vice president would be flexible; they thought it would be almost non-existent. [Chafetz expressly concedes that the Vice President was envisioned as having a Legislative Branch role when he writes "Roger Sherman put it at the Philadelphia Convention, 'If the vice president were not to be President of the Senate, he would be without employment.'"]
It was not until the 1800 election, in which Thomas Jefferson and Aaron Burr tied in the Electoral College and it took 36 rounds of ballots in the House of Representatives before Jefferson emerged victorious, that it became clear what mischief could be worked by the original structure of the Electoral College [I disagree with Chafetz on this point as well, the flaw in the system of selecting the Vice President was first revealed in the 1796 election that placed Jefferson, by then a bitter political opponent of the Federalists and President John Adams, as Vice President.] That election led to the ratification of the Twelfth Amendment, which ensured that the party with enough electoral votes to choose the president would also get to choose the vice president. It was the Twelfth Amendment, not the 1789 Constitution, that made it possible for the vice president to assume more of a role within the executive branch--although it was not until the Harding Administration in the early 1920s that the vice president (Calvin Coolidge) regularly attended cabinet meetings, and it was FDR who first used his vice president (John Nance Garner) as a liaison to Congress.
(Emphasis supplied.) Chafetz purports to be slamming Palin here but in fact he is supporting her statements in the debate, unless one views 1804 (the year the 12th Amendment was ratified) as far removed from 1787 (I posit that would be a strange view given the fact Marbury v. Madison was decided in 1804 and we certainly think of Marbury as a "founding moment.") For Chafetz himself concedes that "[i]t was the Twelfth Amendment, not the 1789 Constitution, that made it possible for the vice president to assume more of a role within the executive branch . . ." (Emphasis mine.) And the Twelfth Amendment did not in any way change the Vice Presidential role in the Legislative Branch.
The fact is it was Biden who completely mangled the issue in the debate. And Chafetz admits this:
[Biden] sa[id] that "Article I of the Constitution defines the role of the vice president of the United States, that's the Executive Branch." It is true that Article I mentions the vice president, but Article I is devoted entirely to the legislative branch. In fact, let's look at what Article I, section 3, clause 4 actually says: "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."
But then Chafetz decides to rewrite Gwen Ifill's awful question:
Although Palin never directly answered Ifill's question, she seemed generally supportive of Cheney's position [on privilege claims], whereas Biden was clearly opposed.
This is simply false. Let's review exactly what Ifill asked:
IFILL: Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it it is also a member of the Legislative Branch?
Chafetz may have wanted Ifill to ask the question he presents, but she did not. She simply was ignorant of the issue. Indeed, Ifill is, like most of the Media (see how NYTimes Ed Board mangled it), is pretty ignorant on most every issue. Palin answered the question Ifill asked, and correctly in my view.
Chafetz writes:
[I]t should give us pause that both vice presidential candidates have some pretty strange ideas about the history and structure of the office to which they aspire.
I submit that of the 3 people on the stage that night, Palin was the one who got it right on that question. Ifill had no idea what the issue was about and Biden was the one who got it just plain wrong. It is ridiculous that the Left and the Left allies in the Media tried to use this episode to attack Palin. For it was the Media and the Democratic candidate who embarrassed themselves in this episode, not Sarah Palin.
By Big Tent Democrat, speaking for me only
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