The Presidential Majority and Contingent Elections Clause

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; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing 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. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

—Michael T. Morley

Introduction

In elections held under the Presidential Majority & Contingent Elections Clause, each presidential elector cast two electoral votes. The candidate with the most electoral votes was generally elected President as long as he had received votes from a majority of electors. The runner-up was elected Vice President. If the Electoral College failed to elect a President, the House of Representatives would hold a contingent election for that office. Each state’s Representatives collectively cast a single vote, and a candidate needed to receive a majority to prevail. If two or more candidates tied for the position of Vice President, the Senate would choose among them. Contingent elections for President were held following the elections of 1800 and 1824. The nation’s only contingent election for Vice President occurred following the election of 1836. The Twelfth Amendment, ratified in 1804, changed most aspects of this clause.

The Mechanics of Counting Electoral Votes

The constitutional provisions that originally governed the Electoral College differed substantially from the current rules established primarily by the Twelfth Amendment. Under the Constitution as originally adopted, each presidential elector cast two electoral votes. To be elected President through the Electoral College, a candidate had to receive the “greatest Number” of electoral votes, and that figure had to reflect electoral votes from a majority of the presidential electors who had been appointed. The person with the next-highest number of electoral votes generally became Vice President.

As noted, the number of electoral votes required to win the presidency was based on the number of electors appointed, not the number of electoral votes cast. This distinction was particularly important under the original constitutional rules because each elector cast two undifferentiated electoral votes that were all tallied together. Mathematically, a candidate who had accumulated barely more than a quarter of the total number of electoral votes cast necessarily would have received votes from a majority of electors. For example, if fifty electors each cast two electoral votes, a total of 100 votes would have been cast. A candidate would need to receive only twenty-six to have accumulated votes from a majority of the fifty electors appointed.

The Twelfth Amendment has rendered this issue less salient because each elector now casts only a single electoral vote for the office of President (along with a distinct electoral vote for Vice President). Thus, the number of electors appointed and the total number of electoral votes cast are now generally equal.

Under both the original Constitution and the Twelfth Amendment, when a state fails to appoint one or more of its electors or Congress declines to accept their appointments as valid, the total number of “electors appointed” decreases. The number of electoral votes a candidate would need to win the presidency accordingly is subject to reduction as well. The fewer “electors appointed,” the smaller the “Majority” a candidate needs to prevail.

However, if Congress seats a state’s electors but rejects one or more of their electoral votes as invalid or otherwise declines to count them, those actions do not affect the number of “electors appointed.” Similarly, if an elector abstains, declining to cast an electoral vote (where permitted by state law), that person is still deemed to have been “appointed.” In these cases, the necessary “Majority” of electoral votes a candidate must receive to become President would be unaffected even though fewer electoral votes are available to be allocated among the candidates.¹

The Mechanics of a Contingent Election

The Presidential Majority and Contingent Elections Clause also provided for two possible contingencies in which the Electoral College failed to elect a President and the choice “immediately” devolved to the House of Representatives. First, when two or more candidates tied, each with votes from a majority of electors, the House of Representatives chose the President from between (or among) them. Second, when no candidate received electoral votes from “a Majority of the whole Number of Electors appointed,” the House chose the President from among the “five highest on the List.” The Constitution did not specify whether the House could consider more than five candidates when certain types of ties arose—for example, if two or more candidates each received the fifth-highest number of votes in the electoral college.

During either type of contingent election, the vote was “taken by States.” In other words, each state cast a single vote regardless of how many representatives it had. One or more representatives from at least two-thirds of the states had to be present to establish a quorum for this purpose.

When a contingent election is required, the House adopts rules to govern how each state’s vote will be determined. Following the presidential election of 1800, when the House anticipated that Thomas Jefferson and Aaron Burr would tie in the electoral college,² it adopted rules for a two-person race. The rules specified that each state’s representatives would “ballot among themselves” to determine how their state’s vote would be cast.³ Under the circumstances, the rules did not explicitly state whether a candidate had to receive ballots from a plurality or majority of those representatives in order to win the state’s vote. If a state’s representatives were “evenly divided,” its vote would be recorded as “divided,” which was effectively an abstention.⁴ Pursuant to the Presidential Majority and Contingent Elections Clause, a candidate had to receive votes from a “Majority of all the States” to be elected President.

The only other contingent election for President in the House occurred after the Election of 1824, in which none of the candidates received votes from a majority of electors. Since that election occurred after the adoption of the Twelfth Amendment in 1804, the House was required to choose from among the candidates with the three highest vote tallies in the electoral college. The House’s rules specified that a majority of the state’s representatives had to cast their ballots for a particular candidate for that person to receive the state’s vote; if no candidate received such a majority, the state’s vote would be recorded as “divided.”⁵ Again, votes from a majority of states were required for a candidate to win the presidency.

The Twelfth Amendment changed the process established by the Presidential Majority and Contingent Elections Clause in three primary ways. First, electors no longer cast two undifferentiated electoral votes. Instead, they cast one vote for President and one for Vice President. Accordingly, it is no longer possible for multiple candidates to each receive electoral votes from a majority of electors. Second, during a contingent election, the House may now consider only candidates who received the three highest numbers of electoral votes for President (meaning more than three candidates may be considered if some of them are tied). Third, the Vice President also must now receive votes from a majority of electors to be elected. If no candidate receives the necessary majority, the Senate chooses the Vice President from among the candidates who received the two highest numbers of electoral votes for that office. (See Essay No. 190.)

The Constitutional Convention

Throughout the Convention, the delegates considered various methods for electing the President. None of the initial proposals for establishing an electoral college specified either the number of electoral votes a candidate needed to win or what would happen if candidates tied.⁶

In late August 1787, the Committee on Postponed Parts presented its own recommendation for an electoral college. A candidate would become President if he received the “greatest number of votes” and that figure reflected votes from a “majority of the Electors.” If multiple candidates tied with the most votes, and that figure constituted such a majority, the Senate would choose one of them in a contingent election. Similarly, if no candidate received a majority in the proposed electoral college, the Senate would hold a contingent election to choose the President “from the five highest on the list.”⁷ Each Senator would have one vote. After the President was chosen, the remaining candidate “having the greatest number of [electoral] votes” would become Vice President. If two or more candidates had “equal votes” at that point, the Senate would choose the Vice President from between (or among) the tied candidates.⁸

Roger Sherman of Connecticut and Gouverneur Morris of Pennsylvania praised this proposal because it rendered the President “independent of the Legislature.”⁹ Sherman further explained that the system struck a balance between large and small states. Large states, which held more electoral votes, had an advantage in “nominat[ing]” candidates through the Electoral College. In the event of a contingent election, however, small states had an advantage since all states had the same number of Senators regardless of population.¹⁰ He further believed that requiring the Senate to choose the President from among the top five candidates in the Electoral College would prevent the election of “obscure characters.”¹¹

The Framers disagreed as to whether the contingent election process would be frequently invoked. George Mason of Virginia, for example, argued that a majority of electoral votes would “rarely . . . fall on any one candidate.”¹² As a result, “nineteen times in twenty the President would be chosen by the Senate, an improper body for the purpose.”¹³ Several others shared this concern, including Charles Pinckney and John Rutledge of South Carolina as well as Alexander Hamilton of New York.¹⁴ Under this view, the Electoral College in effect would nominate the candidates from among whom the Senate would choose the President.¹⁵

Other delegates such as James Madison of Virginia and Gouverneur Morris believed that contingent elections would be rare.¹⁶ They warned against amendments to the Presidential Majority and Contingent Elections Clause that would turn the Electoral College into a nomination process with electors focusing “too much to making candidates” rather than directly choosing a President.¹⁷ Abraham Baldwin of Georgia argued that as “intercourse” among the states grew, “important characters” would become “less & less unknown,” and the Senate would become correspondingly less likely “to have the eventual appointment thrown into their hands.”¹⁸ Morris agreed that because each elector was required to cast at least one vote for someone from a different state, a majority would likely coalesce around “characters eminent & generally known.”¹⁹ He added that because a candidate could win the presidency with only a quarter of the votes cast in the Electoral College, most presidential elections were likely to be resolved there.²⁰ Incumbent Presidents who performed well were especially likely to be re-elected with a majority of electoral votes.²¹

The Convention’s most important change in the Presidential Majority and Contingent Elections Clause was transferring the venue for contingent elections for President from the Senate to the House. Several members opposed entrusting the Senate with such power. Hugh Williamson of North Carolina warned that contingent elections in the Senate would lead to “corruption.”²² Edmund Randolph of Virginia, John Dickinson of Delaware, and Williamson also feared that Senators could “influence” the President’s actions.²³ Pinckney and Mason warned that the Senate might conspire with the President.²⁴ Several delegates, including Williamson, Randolph, and James Wilson of Pennsylvania, emphasized that they wanted to prevent the Senate from becoming “aristocratic.”²⁵

Opponents initially attempted to reduce or even eliminate the Senate’s role in presidential elections by making it easier for the Electoral College to choose the President. Mason, with the support of Williamson and Hamilton, proposed eliminating the requirement that a candidate receive votes from a majority of electors to win the Presidency.²⁶ This recommendation would have reduced the likelihood of contingent elections in the Senate. Elbridge Gerry of Massachusetts opposed this suggestion, however. He warned that, unless such a majority were required, three or four large states could join together to elect a President in the Electoral College.²⁷ Williamson retorted that in a contingent election in the Senate, small states with less than one-sixth of the population could elect the President.²⁸ Hamilton added that the Senate might elect the candidate with the fewest electoral votes.²⁹ Mason’s motions failed, and the Convention retained the majority vote requirement in the Electoral College.³⁰

Wilson then proposed unsuccessfully to transfer authority for contingent elections from the Senate to Congress as a whole.³¹ He argued that the House’s more frequent elections and turnover made it less susceptible than the Senate to “influence & faction.”³² Gerry later made a similar proposal, supported by Rufus King of Massachusetts, Williamson, and Morris. Gerry’s amendment would have given Congress authority over contingent elections only when a President was seeking re-election and none of the candidates secured the necessary majority in the Electoral College.³³ Sherman and Williamson commented that if Congress were to choose the President, “it ought to vote in the case by States” because larger states “would have so great an advantage in nominating the candidates” through the Electoral College.³⁴

Morris appeared to take inconsistent positions concerning the Senate’s power over contingent elections. He opposed Wilson’s motion to transfer the Senate’s authority to Congress on the grounds that limiting contingent presidential elections to the Senate would make the President potentially beholden to fewer people.³⁵ He nevertheless supported Gerry’s proposal concerning incumbents seeking re-election because transferring authority to Congress as a whole would supposedly reduce the Senate’s influence on presidential appointments.³⁶

On September 6, the Convention resolved the issue by voting overwhelmingly and with very little debate to transfer the Senate’s role in contingent elections to the House of Representatives when no candidate received a majority.³⁷ The Representatives from each state would share a single vote.³⁸ The Convention then voted to empower the House to select the President in the same manner when the leading candidates tied in the Electoral College with a majority of electoral votes.³⁹ It also unanimously adopted a quorum requirement for contingent elections, requiring at least one Representative from two-thirds of states to be present,⁴⁰ but the delegates declined to mandate that a majority of Representatives be present.⁴¹

Toward the end of the Convention, the Framers considered several further amendments to the Presidential Majority & Contingent Elections Clause. For example, the Convention twice rejected motions to specify that only electors “who shall have balloted” would count when determining the number of electoral votes needed for a majority. Supporters of the proposal sought to prevent “non voting electors” from increasing the number of electoral votes necessary for a candidate to win.⁴² The Convention instead clarified that the necessary majority was to be calculated based on “the whole number of Electors appointed”⁴³ in order to “remove ambiguity from the intention of the clause.”⁴⁴ Thus, electors who abstain or cast electoral votes that are rejected as invalid are nevertheless counted in determining the number of votes a candidate must receive to win the presidency.

Gerry made two proposals. First, he suggested that at least three Representatives from a state should be required to participate in casting the state’s vote during a contingent election. If a state lacked sufficient Representatives, its Senators could participate.⁴⁵ Second, he proposed that a candidate be required to receive votes from a majority of states to win a contingent election in the House.⁴⁶ Gerry explained that these changes would prevent the President from being chosen by as few as five Representatives in a contingent election.⁴⁷ Madison added that the Convention should seek to prevent “the representatives of a Minority of the people” from “revers[ing] the choice of a majority of the States and of the people.”⁴⁸ George Reed of Delaware warned that under Gerry’s proposal, a small state would be disenfranchised if its Representative or a Senator were ill.⁴⁹ Gerry withdrew the first part of his motion, and the Convention adopted the majority-vote requirement for contingent elections.⁵⁰

The Convention further specified that when a contingent election for President is necessary, the House must hold it “immediately” after Congress has finished counting electoral votes.⁵¹ Conversely, it rejected proposals to limit contingent elections to the top three candidates in the Electoral College or expand them to include the top thirteen candidates.⁵²

With those changes, the provision was nearly in its final form.⁵³ On September 8, the Convention submitted its revised version to the Committee on Style.⁵⁴ The Committee made a few nonsubstantive modifications.⁵⁵ Most notably, in the part of the clause requiring that votes in contingent elections be “taken by states,” the Committee suggested adding the clarifying phrase “and not per capita.”⁵⁶ The Convention struck that new language as “superfluous.”⁵⁷ This final version of the Presidential Majority and Contingent Elections Clause was adopted as part of the Constitution.⁵⁸

The Ratification Debates

Contingent elections proved to be controversial during the ratification debates. In the Virginia ratification convention, James Monroe said that the process made the President beholden to the states rather than the people.⁵⁹ George Mason claimed that “this mode of election was a mere deception . . . on the American people” to trick them into believing they were electing the President when in fact the choice would usually devolve onto the House.⁶⁰ He warned that the House could choose a candidate who had received few electoral votes.⁶¹ William Grayson added that contingent elections were susceptible to foreign interference.⁶² In Maryland, Luther Martin warned that large states would exercise “undue influence” over presidential elections in the Electoral College by either selecting the President or choosing the candidates for a contingent election in the House.⁶³

During the North Carolina ratification convention, James Iredell supported the contingent election process. “It is probable,” he argued, “that the choice will always fall upon a man of experienced abilities and fidelity.”⁶⁴ At the Virginia ratification convention, Madison supported the Presidential Majority and Contingent Elections Clause on the grounds that the various stages of the presidential election process balanced the interests of both large and small states.⁶⁵ In Federalist No. 68, Hamilton explained that it was “unsafe” to “conclusive[ly]” allow a candidate who failed to receive a majority of electoral votes to become President. The Electoral College, combined with contingent elections in the House, “afford[ed] a moral certainty” that Presidents would be “in an eminent degree endowed with the requisite qualifications.”

The Election of 1800

The United States has held only two contingent elections for President: the elections of Thomas Jefferson in 1801 and John Quincy Adams in 1825. Following the presidential election of 1800, Democratic-Republican Thomas Jefferson and his ostensible running mate, Aaron Burr, tied in the Electoral College, each with votes from a majority of the electors.⁶⁶ The House of Representatives immediately held a contingent election, having adopted rules for that process shortly before the electoral votes were counted. Those rules required each state’s Representatives to decide collectively the candidate for whom their state’s vote would be cast. A state’s vote would be recorded as “divided”—effectively an abstention—if its Representatives were equally split between the two candidates.⁶⁷ If a question arose during balloting that a majority of Representatives deemed “incidental to the power of chusing the President,” the matter would be “decided by States, and without debate.”⁶⁸

At the time, there were sixteen states; a candidate needed votes from nine states to be elected President. In the first round of voting, Jefferson received votes from eight states, Burr received votes from six, and two were divided, effectively abstaining.⁶⁹ The same result occurred throughout the next thirty-four rounds of voting.⁷⁰ Finally, on the thirty-sixth ballot, Jefferson won ten states, Burr won four, and two states submitted blank ballots, allowing Jefferson to be declared President.⁷¹ In December 1803, Congress proposed the Twelfth Amendment to prevent a recurrence and ensure that a political party’s intended vice presidential candidate did not win the presidency instead. The amendment was ratified six months later.⁷²

The Election of 1824

In 1824, four major Democratic-Republican candidates ran for President.⁷³ None of them won a majority of electoral votes.⁷⁴ Andrew Jackson received ninety-nine votes; John Quincy Adams, eighty-four; William H. Crawford, forty-one; and Henry Clay, thirty-seven. The House adopted rules for the contingent election similar to those from 1801, except they expressly required a majority of a state’s Representatives to cast their ballots for a candidate in order for that candidate to receive the state’s vote.⁷⁵ At the time, there were twenty-four states; a candidate needed votes from thirteen to prevail. Because the Twelfth Amendment limited the House to the top three candidates, Henry Clay was ineligible to receive votes in the contingent election. After a single round of voting, John Quincy Adams was elected President with thirteen states’ votes; Jackson received seven votes, and Crawford received four.⁷⁶

The Election of 1836

In 1836, Democratic presidential candidate Martin Van Buren and vice presidential candidate Richard Mentor Johnson ran against several different Whig candidates. Van Buren received a majority of electoral votes, winning the Presidency.⁷⁷ Although Virginia’s Democratic electors voted for Van Buren for President, they refused to vote for Johnson as Vice President and instead cast their electoral votes for former South Carolina Senator William Smith.⁷⁸ These defections left Johnson just shy of a majority of electoral votes for Vice President, triggering the only contingent election for that office in American history. Pursuant to the Twelfth Amendment, the Senate chose between Democrat Johnson and the runner up for Vice President in the Electoral College, Whig Francis Granger.⁷⁹ At the time, the Senate was composed of fifty-two Senators. Johnson won in the first round of balloting by a vote of 33 to 16 with three Senators abstaining.⁸⁰

Early Commentary on Contingent Elections

Writing in 1803, St. George Tucker lauded the overall electoral process as “securing the tranquility of elections” and ensuring a “wis[e]” choice of President.⁸¹ He cautioned, however, that affording each state a single vote in contingent elections regardless of population enables “intrigue and cabal [to] have their full scope.”⁸² He went so far as to speculate that a “bold and desperate party” with “command of an armed force, and of all the resources of government” might exploit the opportunity to “establish themselves permanently in power.”⁸³ These observations may very well have been inspired by rumors of backroom dealings and mobilization of state militias by Democratic-Republican governors that may have contributed to Jefferson’s victory.⁸⁴

In 1829, William Rawle defended the Constitution’s requirement that Representatives vote by state in contingent elections from a pragmatic perspective. He speculated that if a majority of electors were unable to agree on a candidate, then a majority of individual Representatives in the House would similarly be unlikely to do so.⁸⁵ Requiring Representatives to vote by state “remov[es] the difficulty.”⁸⁶

Writing after the elections of both 1800 and 1824, Justice Joseph Story claimed that the Electoral College had a “constant tendency, from the number of candidates, to bring the choice into the house of representatives.”⁸⁷ He warned that Representatives “may[] be influenced by many motives, independent of [a candidate’s] merits and qualifications.”⁸⁸ Story further observed that the “discords” generated by a contingent election “will probably long outlive the immediate choice, and scatter their pestilential influences all over the great interest of the country.”⁸⁹

Open Questions

• Under the Presidential Majority Contingent Elections Clause as originally drafted, what would have happened if no candidate received a majority of electoral votes and two or more candidates tied for fifth place in the Electoral College?⁹⁰ The clause specified that only the “five highest [candidates] on the List” were eligible to participate in a contingent election for President in the House. If multiple candidates tied for fifth place or other comparable ties occurred, would this language have allowed six or more candidates to participate in a contingent election? Congress intended for the Twelfth Amendment to resolve this ambiguity. It states that the House may choose from among “the persons having the highest numbers, not exceeding three on the list of those voted for as President.”⁹¹ This change in phrasing was adopted to clarify that all presidential candidates who received the greatest, second-greatest, or third-greatest numbers of votes in the Electoral College, even if ties occurred, could participate in a contingent election.⁹²
• May the House vote for a candidate who dies in the course of a contingent election? This has never occurred. The closest historical analogue is Congress’s decision following the 1872 election to reject three electoral votes that had been cast for presidential candidate Horace Greeley after his death.⁹³ Members reasoned that the votes were invalid because a deceased candidate is constitutionally ineligible to serve as President; this reasoning would appear to apply equally to a contingent election. The Twelfth Amendment does not address this issue, but the Twentieth Amendment empowers Congress to pass legislation specifying what happens when a presidential or vice presidential candidate dies during a contingent election. Congress has yet to enact any such statutes, however. The most prudent course of action would be for Congress to authorize votes for deceased candidates in contingent elections for both President and Vice President to ensure that neither the House nor the Senate is compelled to vote for someone opposed by a majority of states.

1. Derek T. Muller, Electoral Votes Regularly Given, 55 Ga. L. Rev. 1529, 1545 (2021). ↩︎
2. Letter from Alexander Hamilton to Oliver Wolcott, Jr. (Dec. 16, 1800), https://perma.cc/3QDR-UAMN. ↩︎
3. H.R. Jour., 6th Cong., 2d Sess. 791 (Feb. 9, 1801); Annals of Cong., 6th Cong., 2d Sess. 1010 (1801). ↩︎
4. Id. ↩︎
5. H.R. Jour., 18th Cong., 2d Sess. 213 (Feb. 7, 1825); 1 Reg. of Debates in Cong., 18th Cong., 2d Sess. 510–11 (Feb. 7, 1825). ↩︎
6. 1 Farrand’s 77, 80–81; 2 Farrand’s 22, 32, 50, 57–58, 97, 99, 105, 107, 108–09, 397, 404. ↩︎
7. 2 Farrand’s 494, 498. ↩︎
8. Id. ↩︎
9. Id. at 499, 500. ↩︎
10. Id. at 512–14. ↩︎
11. Id. at 499. ↩︎
12. Id. at 512. ↩︎
13. Id. at 500–01. ↩︎
14. Id. at 501, 511, 524–25, 530. ↩︎
15. Id. at 512–13. ↩︎
16. Id. at 512–13, 523. ↩︎
17. Id. at 500, 513. ↩︎
18. Id. at 501. ↩︎
19. Id. at 512. ↩︎
20. Id. at 501, 512. ↩︎
21. Id. at 512. ↩︎
22. Id. ↩︎
23. Id. at 501, 513, 522. ↩︎
24. Id. at 511–12. ↩︎
25. Id. at 512, 513, 515, 522, 524. ↩︎
26. Id. at 507, 512–13. ↩︎
27. Id. at 514. ↩︎
28. Id. ↩︎
29. Id. at 524–25. ↩︎
30. Id. at 507, 513. ↩︎
31. Id. at 502, 507, 513. ↩︎
32. Id. at 502. ↩︎
33. Id. ↩︎
34. Id. at 502, 527. ↩︎
35. Id. at 502. ↩︎
36. Id. at 522. ↩︎
37. Id. at 518–19, 520, 527, 531. ↩︎
38. Id. ↩︎
39. Id. at 519, 527. ↩︎
40. Id. at 518–20, 526–28. ↩︎
41. Id. at 519, 520, 528. ↩︎
42. Id. at 507, 515, 518, 526. ↩︎
43. Id. at 507, 515, 518, 526. ↩︎
44. Id. at 515. ↩︎
45. Id. at 532, 535. ↩︎
46. Id. ↩︎
47. Id. at 535. ↩︎
48. Id. at 536 (emphasis in original). ↩︎
49. Id. ↩︎
50. Id. at 532, 536. ↩︎
51. Id. at 518, 520, 526, 502. ↩︎
52. Id. at 501–02, 507, 514–15. ↩︎
53. Id. at 521, 529 & *note, 534, 536, 573. ↩︎
54. Id. at 547, 553. ↩︎
55. Id. at 598, 605, 607. ↩︎
56. Id. at 598. ↩︎
57. Id. at 598 & n.19, 621, 628. ↩︎
58. Id. at 622, 633. ↩︎
59. 3 Elliot’s 488–90. ↩︎
60. Id. at 493. ↩︎
61. Id. ↩︎
62. Id. at 490. ↩︎
63. 1 Elliot’s 378. ↩︎
64. 4 Elliot’s 107. ↩︎
65. 3 Elliot’s 495. ↩︎
66. H.R. Jour., 6th Cong., 2d Sess. 799 (Feb. 11, 1801); S. Jour., 6th Cong., 2d Sess. 125 (Feb. 11, 1801); Annals of Cong., 6th Cong., 2d Sess. 1024 (1801). ↩︎
67. H.R. Jour., 6th Cong., 2d Sess. 791–92 (Feb. 9, 1801); Annals of Cong., 6th Cong., 2d Sess. 1009–11 (1801). ↩︎
68. H.R. Jour., 6th Cong., 2d Sess. 792 (Feb. 9, 1801); Annals of Cong., 6th Cong., 2d Sess. 1011 (1801). ↩︎
69. H.R. Jour., 6th Cong., 2d Sess. 801 (Feb. 11, 1801); Annals of Cong., 6th Cong., 2d Sess. 1025 (1801). ↩︎
70. H.R. Jour., 6th Cong., 2d Sess. 801–03 (Feb. 11, 1801); Annals of Cong., 6th Cong., 2d Sess. 1025–28 (1801). ↩︎
71. H.R. Jour., 6th Cong., 2d Sess. 803 (Feb. 11, 1801); S. Jour., 6th Cong., 2d Sess. 127–28 (Feb. 11, 1801); Annals of Cong., 6th Cong., 2d Sess. 1028 (1801). ↩︎
72. Nathan L. Colvin & Edward B. Foley, Lost Opportunity: Learning the Wrong Lesson from the Hayes–Tilden Dispute, 79 Fordham L. Rev. 1043, 1048–49 & n.25 (2010). ↩︎
73. Ronald J. Krotoszynski, Jr., The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power, 89 Notre Dame L. Rev. 1021, 1056 n.124 (2014). ↩︎
74. H.R. Jour., 18th Cong., 2d Sess. 220–21 (Feb. 9, 1825); 1 Reg. of Debates in Cong., 18th Cong., 2d Sess. 526 (Feb. 9, 1825). ↩︎
75. H.R. Jour., 18th Cong., 2d Sess. 212–15 (Feb. 7, 1825); 1 Reg. of Debates in Cong., 18th Cong., 2d Sess. 509–15 (Feb. 7, 1825). ↩︎
76. H.R. Jour., 18th Cong., 2d Sess., 222 (Feb. 9, 1825); 1 Reg. of Debates in Cong., 18th Cong., 2d Sess. 527 (Feb. 9, 1825). ↩︎
77. Cong. Globe, 24th Cong., 2d Sess. 167 (1837); H.R. Jour., 24th Cong., 2d Sess. 358–59 (Feb 8, 1837). ↩︎
78. Cong. Globe, 24th Cong., 2d Sess. 167 (1837); H.R. Jour., 24th Cong., 2d Sess. 358–59 (Feb 8, 1837). ↩︎
79. Cong. Globe, 24th Cong., 2d Sess. 167 (1837); S. Jour., 24th Cong., 2d Sess. 229 (Feb. 8, 1837). ↩︎
80. Cong. Globe, 24th Cong., 2d Sess. 167 (1837); S. Jour., 24th Cong., 2d Sess. 229 (Feb. 8, 1837). ↩︎
81. 1 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, App. Note D, at 326 (1803). ↩︎
82. Id. at 327. ↩︎
83. Id. ↩︎
84. Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy 106 (2005); Ron Chernow, Alexander Hamilton 638–39 (2004); Joanne B. Freeman, The Election of 1800: A Study in the Logic of Political Change, 108 Yale L.J. 1959, 1963 (1999). ↩︎
85. William Rawle, A View of the Constitution of the United States of America 54, 321 (2d ed. 1829). ↩︎
86. Id. at 54. ↩︎
87. 3 Story’s Commentaries § 1458. ↩︎
88. Id. ↩︎
89. Id. ↩︎
90. Id. at § 1465. ↩︎
91. Amend. XII. ↩︎
92. Annals of Cong., 8th Cong., 1st Sess. 93, 677–80, 725 (1803). ↩︎
93. Cong. Globe, 42d Cong., 3d Sess. 505 (1873). ↩︎