Scott Douglas Gerber, a law professor at Ohio Northern University in Ada, Ohio, discusses the history of the vice presidency in anticipation of Joe Biden picking his vice presidential candidate...
Joe Biden, the presumptive Democratic nominee for President of the United States, will soon be announcing his choice for Vice President. Biden himself served two-terms as President Barack Obama’s Vice President. If elected, Biden will become the oldest President in American history. His choice of a Vice President is therefore particularly important.
Perhaps surprisingly, the U.S. Constitution says very little about the Vice President. The framers’ 1787 Constitution specified that: the Vice President would be president of the Senate (but could vote only to break a tie); the Vice President’s term, like that of the President, was four years; the Vice President was the person who finished second in the presidential election; and “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office,” the Vice President would assume the powers and duties of the President.
In the two centuries since the ratification of the Bill of Rights in 1791, four of the seventeen amendments to the Constitution have affected the Vice Presidency. When the presidential election of 1800 resulted in an electoral tie, the selection of the President defaulted to the House of Representatives, despite the clear intention of the Electoral College to choose Thomas Jefferson. The 12th Amendment was quickly enacted to mandate the election of the President and Vice President on separate ballots.
To shorten the gap between the election of the President and the Vice President and their inaugurations, the 20th Amendment was ratified in 1933 to move the presidential and vice-presidential inaugurations from March 4th to January 20th.
In response to Franklin D. Roosevelt’s unprecedented election to four terms as President, the 22nd Amendment was enacted in 1951 to limit the number of terms a President can serve to two, which also increased the likelihood of Vice Presidents running to succeed the term-limited President.
The 25th Amendment was adopted in 1967 to establish a process for filling vice-presidential vacancies: nomination by the President and confirmation by a majority of both houses of Congress. That Amendment also created a succession system to address temporary presidential incapacity and made clear that in the case of a presidential vacancy, the vice president assumes the presidency and not just its powers and duties.
That’s it. That’s all the Constitution says about the Vice Presidency. The astonishing evolution of the office—from what John Adams, the nation’s first Vice President, referred to as “the most insignificant office that ever the invention of man contrived or his imagination conceived,” to the modern view that the Vice President is the President’s principal advisor and likely successor—has come from the practices of several specific Presidents.
Strangely enough, the transformation of the Vice Presidency began when one of the worst Presidents in American history—Warren G. Harding—invited his Vice President—Calvin Coolidge—to meet regularly with the President’s Cabinet. The next major step occurred when President Dwight D. Eisenhower authorized his Vice President, Richard M. Nixon, to undertake diplomatic missions, to serve as a party surrogate and administration spokesperson, to assist with legislative projects, and to chair several executive committees. In 1961, Lyndon B. Johnson became the first Vice President with an office in the Executive Office Building near the White House.
But the most significant changes of all were instituted by President Jimmy Carter when he situated his Vice President, Walter F. Mondale, in a West Wing office next to the Oval Office and ordered that Mondale receive copies of memoranda to Carter and that the Vice President could attend any meeting on the President’s schedule. In short, no longer was the Vice President primarily an officer in the legislative branch. He—and, almost certainly soon, she—was the second most important person in the executive branch.
The polls project that Joe Biden will defeat President Donald Trump in the November election. If that proves true, what makes Biden’s upcoming pick the next transformative moment in the evolution of the Vice Presidency is the emphasis that Biden is placing on social justice in making his selection. None of the names on Biden’s short-list are men, and many are women of color. Biden himself was a successful Vice President, and he has stated publicly that the number one consideration in his selection process has to be that the Vice President be ready to succeed to the Presidency on day one. But he’s also aware that, of the forty-eight individuals who have served as Vice President since the Constitution went into effect in 1789, not one has been a woman and not one has been a person of color. This is 2020, and Joe Biden obviously realizes that women and people of color are qualified to be Vice President—and President—too.
Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project. His nine books include, most recently, The Art of the Law: A Novel (2018).
Suggested citation: Scott Douglas Gerber, The Social Justice Vice Presidency, JURIST – Academic Commentary, August 3, 2020, https://www.jurist.org/commentary/2020/08/scott-douglas-gerber-social-justice-vice-presidency/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org.
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