As readers know, The Scrapbook is a longtime connoisseur of the Law of Unintended Consequences. And this election year has furnished more than a few examples.
Case in point: the Electoral College. Since Donald Trump won the electoral, but not the popular, vote in November, the left has been especially agitated about this “vestige of the founding era . . . when slavery was the law of the land,” as the New York Times put it in its demand for abolition last week. Indeed, so serious is left-wing grievance with the Electoral College these days that no less a figure than former president Josiah Bartlet (actor Martin Sheen) from TV’s West Wing joined other celebrities in publicly pleading with electors to change their votes. And some did. But not in the way that President Bartlet might have expected: Two Trump electors—so-called “faithless electors”—defected, but so did five Clinton electors.
It is at this point that The Scrapbook feels constrained to issue a solemn warning to those disappointed Democrats who wish to jettison the Electoral College: Be careful what you wish for. For abolition would require a constitutional amendment, and we can think of two modern amendments—both of which were rushed into the Constitution under political pressure—that neatly illustrate the Law of Unintended Consequences.
The first is the 22nd Amendment (1947), which limits the president of the United States to two terms. Franklin D. Roosevelt, who was elected to four terms, had died in 1945, and Republicans, who captured both houses of Congress in 1946, were determined to ensure that no future FDR would serve more than eight years as president. So the amendment was rushed through the legislative process and swiftly ratified by the requisite number of states. But of course, the very next Republican president was the immensely popular Dwight D. Eisenhower, who might easily have won a third term in 1960 had he chosen to run—and not been barred by the 22nd Amendment.
Then there’s the 25th Amendment (1965), a product of longstanding concern about presidential disability and the immediate circumstances following the assassination of John F. Kennedy. When Kennedy was killed, he was succeeded by his vice president, Lyndon B. Johnson. In the days before the 25th Amendment, however, there was no provision for the vice-presidential vacancy left when a president died. So the constitutional order of succession after the 55-year-old Johnson (who had suffered a serious heart attack a decade earlier) was the 71-year-old speaker of the House, John McCormack, and the 86-year-old Senate president pro tempore, Carl Hayden. The chattering classes of the day—and in particular, the Democratic 89th Congress—considered this geriatric scenario and collectively shuddered.
So the 25th Amendment, like the 22nd, was rushed through confirmation and ratification. It codified the issue of presidential disability—that is to say, what to do when a living president was unable to perform his duties—and in the case of a vice-presidential vacancy, provided for the presidential appointment of a new vice president, subject to Senate confirmation.
Almost immediately, it was put to the test. In 1973, Vice President Spiro Agnew resigned from office and, in accordance with the new 25th Amendment, President Richard Nixon appointed Representative Gerald Ford to succeed him. In the following year, however, Nixon himself resigned the presidency, pushing Ford into the White House. Whereupon Ford, in his turn, appointed New York governor Nelson Rockefeller to be the new vice president. And so, less than a decade after the adoption of the 25th Amendment, neither of the two senior executive officials of the United States government had been elected by a vote of the American people.
To be sure, Ford and Rockefeller were both estimable statesmen, and the Republic prevailed. But the interesting sequence of events in the wake of the Watergate scandal was not exactly what the authors of the presidential-disability amendment had in mind.
Moreover, there was an ironic postscript. The 25th Amendment itself had been prompted by the frightening prospect of the elderly Speaker McCormack succeeding the dynamic President Johnson in the White House. But when Johnson eventually died (1973), McCormack attended his funeral—and indeed, survived LBJ by another seven years. So The Scrapbook is fully confident that should progressives ever get their wish and discard the Electoral College, the very next Democratic candidate for president will lose the popular vote but win the electoral vote.
