Resolution Rejecting the 12th Amendment

According to Delaware’s legislature, what is the problem with the Twelfth Amendment? Why does Delaware want to retain five as the number of candidates available to the House in the contingency election? How might this affect the separation of powers, or the relative influence of small and large states?
How does Delaware’s understanding of presidential selection compare to Thomas Jefferson’s vision for the presidency (First Inaugural Address (1801); Letters to Elias Shipman & Others (1801))? How does each line up with the logic of Federalist No. 68 (1788)?

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Jefferson famously called his election the Revolution of 1800, but, as his critics pointed out, that revolution took 36 ballots in the US House of Representatives to break the deadlock between Jefferson and his running mate Aaron Burr. Because the Framers did not anticipate the rise of national parties, the Constitution did not require members of the Electoral College to designate whom they intended to be president and whom they intended to be vice-president. In fact, they assumed that most presidential electors would choose someone from their home states with one of the choices, and a national consensus would emerge around the second choices of the electors. But when the parties organized around a national slate of candidates, this logic was overturned. In 1800, Jefferson defeated Adams but tied his own running mate, because Republicans forgot to cast aside one of the Burr ballots.

The Twelfth Amendment fixed this problem by requiring candidates to distinguish between the president and vice-president on their ballots. This was a step toward acknowledging the two-party system. But it also made it more likely that presidents would represent a majority of the Electoral College. Under the original Constitution, the House would choose from the top five candidates in the event that none received an Electoral College majority. The Twelfth Amendment lowered this number to three. Because the House vote is by state delegation rather than by individual member, this was a blow to the small states.

As the objections from Delaware illustrate, Federalists believed that the amendment would make the president too powerful, and it would provide too great an advantage for the most populous states. Thus, the opponents of the Twelfth Amendment perceived that the innovation would invite presidential claims of representing a national majority.

—Jeremy D. Bailey

Source: Journal of the House of Representatives of the State of Delaware, 1804, 26–27. Courtesy of the Delaware Public Archives.

First, Because at all times innovations of the Constitution are dangerous, but more especially when the changes are dictated by party spirit, are designed for temporary purposes, and calculated to accomplish personal views.

Second, Because as representatives of a small state, we are sensible that in the nature of things, every change in the Constitution will be in favor of the large states who will never be disposed to allow, and will always have the means to prevent a variation favorable to the interests of the small states.

Third, Because in fact, the proposed amendment does reduce the power and weight of the small states, in the case provided by the Constitution, for the choice of President by the House of Representatives, by limiting the selection to three instead of five candidates, having the greatest number of electoral votes.

Fourth, Because the present mode of election gives to the small states a control and weight in the election for President and Vice-President, which are destroyed by the contemplated amendment.

Fifth, Because it is the true and permanent interest of a free people, among whom the relations of majority and minority must ever be fluctuating, to maintain the just weight and respectability of the minority by every proper provision, not impeaching the principle that the majority ought to govern; and we consider the present mode of election as calculated to repress the natural intolerance of a majority, and to secure some consideration and forbearance in relation to the minority.

Sixth, Because we view the existing provision in the Constitution as among the wisest of its regulations. History furnishes many examples of nations and particularly of republics, in their delirious devotion to individuals being ready to sacrifice their liberties and their dearest rights to the personal aggrandizement of their idol. The existing regulation furnishes some check to this human infirmity, by the occasional power given to a few to negative the will of the majority, as to one man, leaving them every other qualified citizen in the country for the range of their selection.


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