After 1800: Hamilton and the Twelfth Amendment

I wrote earlier about Hamilton’ role in the Election of 1800, in which Thomas Jefferson and Aaron Burr received an equal number of electoral votes and Hamilton was the force behind Jefferson’s controversial victory in the Senate vote.  After the election, people immediately began calling for reform to prevent the events of 1800 from occurring in future elections.  Although Republicans ultimately embraced the reform, the impetus for inserting such a provision into the Constitution largely came from Hamilton and his fellow Federalists.

In Federalist No. 68, Hamilton noted that “the mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.”  He emphasized that “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”

Hamilton recognized that the backdoor politics that came to the brink of creating a Burr presidency was contrary to the goals of the Constitution, and was a major supporter of the movement to pass a Twelfth Amendment to distinguish the positions of President and Vice President.  Henry Cabot Lodge identified Hamilton as the originator of the Twelfth Amendment.

In his 1901 Study of the Twelfth Amendment of the Constitution of the United StatesLolabel House noted that though the Twelfth Amendment was “finally passed as a Republican party measure, the earliest advocates of the principle involved were Federalists.  It was recommended first by the Federalist Legislature of New Hampshire, twice by the Federalist Legislature of South Carolina, unanimously in New York, where the majority was Federalist…”

Hamilton proposed the resolution to the Federalist-dominated New York State Legislature on January 29, 1802.

Resolved, as the sense of the Legislature, that the following amendments ought to be incorporated into the Constitution of the United States as a necessary safeguard in the choice of a President and Vice President against pernicious dissensions as the most eligible mode of obtaining a full and fair expression of the public will in such election.

Hamilton’s proposed version of the Twelfth Amendment:

1st. That Congress shall from time to time divide each State into Districts equal to the whole number of Senators and Representatives from such state in the Congress of the United States, and shall direct the mode of choosing an Elector of President and Vice President in each of the said Districts, who shall be chosen by Citizens who have the qualifications requisite for Electors of the most numerous branch of the State Legislature, and that the districts shall be formed, as nearly as may be, with an equal proportion of population in each, and of Counties and, if necessary, parts of Counties contiguous to each other, except when there may be any detached portion of territory not sufficient of itself to form a District which then shall be annexed to some other part nearest thereto.

2nd. That in all future elections of President and Vice President the persons voted for shall be particularly designated by declaring which is voted for as President and which as Vice President.

The version of the amendment that was ultimately passed by Congress differs from Hamilton’s proposal in that it did not adopt Hamilton’s proposed language regarding the role of districts.  The Twelfth Amendment was passed by Congress on December 9, 1803.  Interestingly, contemporary newspaper The Balance reported that was a movement in the Senate, “contrary to all precedent,” to get the bill signed by the President before sending it to the states.

12th Amendment


[The Balance, December 27, 1803]




This bill was ultimately voted down, and the amendment was sent to the states for ratification.  The Twelfth Amendment was finally ratified on June 15, 1804.

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States

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