By Walter Berns
Why should John Edwards or anyone else want to be vice president? One of the men who held the post spoke of it as "the most insignificant office" ever contrived by the wit of man, and the men who wittingly contrived it — I mean, of course, the Framers of the Constitution — may have been of the same opinion. At least, they said nothing whatever about the qualifications of those who were to hold the office; unlike presidents and members of the House and Senate, vice presidents — so far as the Constitution is concerned — may be of any age and any nationality.
But the vice presidency is taken more seriously today than it apparently was by the Framers. The reason for this has nothing to do with the office itself — after all, its powers are almost nonexistent — and much to do with a presidential candidate's chances of winning an election. Interestingly enough, the reason the Framers created the office in the first place had something to do with — in fact, had only to do with — the election of the president.
The Framers had a hard time settling on the method by which the president was to be chosen. It was proposed that the president be chosen by the national legislature; by a part of the legislature; by state governors; by popular vote of the people; by electors appointed by the state legislatures, the national legislature, or in districts within the states; or by the people directly. But there were objections to each of these methods. A chief executive chosen by the Congress would make him its agent, which would be a violation of the principle of the separation of powers. If by state governors, "the executive thus chosen will not be likely to defend with becoming vigilance and firmness the National rights against State encroachments" (as James Madison wrote in his notes about the argument put forward by Edmund Randolph at the Convention in 1787).
By popular vote of the people? George Mason of Virginia "conceived it would be as unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would, to refer a trial of colours to a blind man." Besides, said Hugh Williamson of North Carolina, "the people will be sure to vote for some man in their own State, and the largest State will be sure to succeed."
By electors appointed by the state legislatures? This proposal engendered no discussion whatever; put to the vote, only Maryland and Delaware favored it. "We seem," said Elbridge Gerry of Massachusetts, "to be entirely at a loss on this head." Indeed they were. As Madison said, "there are objections against every mode that has been, or perhaps can be proposed."
What is of interest here is that during the entire course of the debate — which began in May when Randolph introduced the so-called Virginia Plan for the Constitution and continued for over three months — no mention was made of a vice president.
This was not the result of oversight. The convention was aware of the necessity to provide for the case of the president's removal, death, or resignation. Thus, in its report of August 6, the Committee of Detail recommended that in such an event "the powers and duties of his office" be exercised by the president of the Senate. The office of vice president did not make its appearance until September 4 when, in its report, the Committee on Unfinished Parts recommended the establishment of the electoral college.
As adopted in the Constitution, the report provided that the electors were to vote for two people, "of whom one at least shall not be an Inhabitant of the same State with themselves," and "the Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed.... In every case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be Vice President."
A careful consideration of this provision reveals why we have a vice president. Each elector was given two votes, both to be cast for president (it was not until the adoption of the 12th Amendment in 1804 that electors were required to cast one vote for president and the other for vice president). Why two votes? Because, if each elector had one vote, and if he cast it for "an Inhabitant of the same State with [himself]," no one would win an electoral college majority and the choice of the president would devolve upon the Senate (subsequently changed to the House of Representatives).
But give the electors two votes each and the result would likely be the same. That is because, without a second office to fill, they would have reason to "throw away" their second votes. Consider the situation that would have attended the selection of the first president had George Washington (everyone's first choice) not been a candidate. There were 69 electors casting a total of 138 votes for president. The number required for election was 35 ("a Majority of the whole Number of Electors appointed," not a majority of the ballots cast). If, as the Framers assumed, most electors were to cast their first votes for a favorite son, no one would win a majority, and the issue would turn on the second votes. How would they be cast? Would the Virginians, for example, having cast their first votes for Thomas Jefferson, cast their second for John Adams? Not likely. To do so might give Adams (Massachusetts' favorite son) the 35 votes needed for election. They would be more likely to cast them for, say, Daniel of St. Thomas Jenifer of Maryland or (except that he had been killed in a duel) Button Gwinnett of Georgia — someone for whom no other elector was likely to cast a second vote. In a word, to enhance the chances of their first choice, electors would be inclined to "throw away" their second votes.
The vice presidency was created to make it less likely that electors would do this. With two offices to fill, and knowing that the vice president would succeed to the office in the event of the president's death or removal, they would have reason to cast their second votes for the best man from some other state rather than for a nonentity. "Such an officer as vice-president was not wanted," said Hugh Williamson on September 7. "He was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time."
The vice president's only constitutional duty is to preside over the Senate (and cast a vote only in the event it "be equally divided"); and he was given that assignment only because, as Roger Sherman put it, "he would [otherwise] be without employment." With little to do — Dick Cheney is an exception to this — most vice presidents have spent their time in office doing little, and the republic is none the worse off for the little they did. But nine of them succeeded to the presidency, a fact that John Kerry (we hope) remembered when choosing his running mate.