Article 2, Section 1, Clause 6

Document 4

Joseph Story, Commentaries on the Constitution 3:§§ 1475--78


§ 1475. The original scheme of the constitution did not embrace (as has been already stated) the appointment of any vice-president, and in case of the death, resignation, or disability of the president, the president of the senate was to perform the duties of his office. The appointment of a vice-president was carried by a vote of ten states to one. Congress, in pursuance of the power here given, have provided, that in case of the removal, death, resignation, or inability of the president and vice-president, the president of the senate pro tempore, and in case there shall be no president, then the speaker of the house of representatives for the time being shall act as president, until the disability be removed, or a president shall be elected.

§ 1476. No provision seems to be made, or at least directly made, for the case of the non-election of any president and vice-president at the period prescribed by the constitution. The case of a vacancy by removal, death, or resignation, is expressly provided for; but not of a vacancy by the expiration of the official term of office. A learned commentator has thought, that such a case is not likely to happen, until the people of the United States shall be weary of the constitution and government, and shall adopt this method of putting a period to both, a mode of dissolution, which seems, from its peaceable character, to recommend itself to his mind, as fit for such a crisis. But no absolute dissolution of the government would constitutionally take place by such a non-election. The only effect would be, a suspension of the powers of the executive part of the government, and incidentally of the legislative powers, until a new election to the presidency should take place at the next constitutional period, an evil of very great magnitude, but not equal to a positive extinguishment of the constitution. But the event of a non-election may arise, without any intention on the part of the people to dissolve the government. Suppose there should be three candidates for the presidency, and two for the vice-presidency, each of whom should receive, as nearly as possible, the same number of votes; which party, under such circumstances, is bound to yield up its own preference? May not each feel equally and conscientiously the duty to support to the end of the contest its own favorite candidate in the house of representatives? Take another case. Suppose two persons should receive a majority of all the votes for the presidency, and both die before the time of taking office, or even before the votes are ascertained by congress. There is nothing incredible in the supposition, that such an event may occur. It is not nearly as improbable, as the occurrence of the death of three persons, who had held the office of president, on the anniversary of our independence, and two of these in the same year. In each of these cases there would be a vacancy in the office of president and vice-president by mere efflux of time; and it may admit of doubt, whether the language of the constitution reaches them. If the vice-president should succeed to the office of president, he will continue in it until the regular expiration of the period, for which the president was chosen; for there is no provision for the choice of a new president, except at the regular period, when there is a vice-president in office; and none for the choice of a vice-president, except when a president also is to be chosen.

§ 1477. Congress, however, have undertaken to provide for every case of a vacancy both of the offices of president and vice-president; and have declared, that in such an event there shall immediately be a new election made in the manner prescribed by the act. How far such an exercise of power is constitutional has never yet been solemnly presented for decision. The point was hinted at in some of the debates, when the constitution was adopted; and it was then thought to be susceptible of some doubt. Every sincere friend of the constitution will naturally feel desirous of upholding the power, as far as he constitutionally may. But it would be more satisfactory, to provide for the case by some suitable amendment, which should clear away every doubt, and thus prevent a crisis dangerous to our future peace, if not to the existence of the government.

§ 1478. What shall be the proper proof of the resignation of the president, or vice-president, or of their refusal to accept the office, is left open by the constitution. But congress, with great wisdom and forecast, have provided, that it shall be by some instrument in writing, declaring the same, subscribed by the party, and delivered into the office of the secretary of state.

The Founders' Constitution
Volume 3, Article 2, Section 1, Clause 6, Document 4
The University of Chicago Press

Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.

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