Last night while flipping across the “news” channels, I came across the Rachel Maddow show and thought I heard a woman claiming to be a “Law Professor” from Yale say the 12th Amendment created the Electoral College. I looked at the transcript and read the entire interview:
“Heather Gerken. She is a law professor at Yale University. Professor Gerken, welcome to the show. Thanks for joining us.
HEATHER GERKEN, LAW PROFESSOR, YALE UNIVERSITY: Thank you for having me.
MADDOW: Let me start with the premise that I just outlined there, that it‘s gosh darn difficult to amend the Constitution. Do you think that‘s a fair assessment?
GERKEN: I think that‘s a quite fair assessment. I mean, in 220 years, we‘ve only done it 17 times. So the first 10 went through pretty quickly. But after that, it has taken a while. And it usually requires something pretty huge to get a constitutional amendment through.
MADDOW: Well, are there certain types of constitutional amendments that historically have been easier to pass than others?
GERKEN: Well, the sort of “oops” amendments when they realized they wrote something in the Constitution or failed to write something in the Constitution that really ought to be there.
So in 1800, when the country nearly fell apart over the presidential race, they amended the Constitution and gave us the 12th Amendment and the Electoral College. Or after FDR, they realized they really need to think about how many terms a president could serve. Or after Kennedy‘s assassination, they realized they had needed to think about presidential succession.
So these are kind of “oops” amendments. There are things that would have been nice to have there in the first place. But once you realized they need to be there, it‘s quite easy to pass because they‘re perfectly sensible and easy to figure out.
And the other half of the amendments are the ones that are hard to get. Sometimes they involve huge amounts of time and years and years of work. At one point, three of them involved a Civil War. So those are the ones where we are trying to catch up to our Democratic credentials when we sort of remember that this really isn‘t a country that‘s supposed to be controlled by white male property holders. And those are the things that are tough to get through as a general matter and they really took a fight.
MADDOW: When politicians say to Americans that they promised to amend the Constitution – I feel like in every election, there has always been somebody saying something about how they were going to amend the Constitution. It just seems notable now that it is happening for – so many different politicians saying they want to repeal multiple amendments and there are so many that have been proposed in the past decade and so many of them are on the conservative side.
I just – it makes me wonder if this is a dog whistle thing, if it means something politically, other than what it means literally. Because these – as literal promises, these seem rather meaningless.
GERKEN: Right. I mean, every time you hear a politician, anyone with political experiences says – you sort of want to say, “Have you cracked open your history book lately?” This takes a lot of work to get an amendment through.
Even though, in some ways, they‘re appealing to this deep intuition that Americans have which is, I think, one of the best intuitions, which is that the Constitution belongs to us and we have a right to change it when we want to change it.
But you do something – really, what they‘re talking about is a deep unease that Americans have in some parts of the country with what‘s going on now. And the way you tap into that unease is to talk about our Constitution that it is our Constitution.
So whether or not in the end of the day, it is really just a cynical rhetorical claim, they‘re speaking to people in a language that Americans understand.
MADDOW: Does threatening to change the Constitution, even if you can‘t pull it off, even if you can‘t actually amend it – historically, has that had an effect on our laws or even constitutional interpretation even if the amendment itself hasn‘t actually worked?
GERKEN: Well, this is what is so interesting. They said sometimes, you can amend the Constitution without amending the Constitution. So you just talk about the ERA. It‘s a great example as my colleague, Reeva Segal(ph), has pointed out. The people who worked for the ERA actually got everything they wanted by moving for the ERA.
They never actually got it into the texts of the Constitution. But everything that was embodied in that amendment was eventually given to them by the Supreme Court. So why did that happen?
Well, they used the ERA as an organizing tool. They changed people‘s minds about the place of women in society. And nine of the people whose minds were changed were sitting on the Supreme Court.
And those justices eventually began to read the broad part of the Constitution in a way that was perfectly consistent with the ERA. So they got the constitutional amendment. It just isn‘t in the text.
MADDOW: And it just took 85 years, roughly.
GERKEN: It did take a little while.
MADDOW: Heather Gerken, law professor at Yale University. Thanks so much for joining us tonight. It‘s really a pleasure to have you on the show.
GERKEN: Thank you very much.“
Not only did the “Law Professor” say the 12th Amendment created the Electoral College, she also said the US Constitution had only been amended 17 times. “we‘ve only done it (Amend the Constitution) 17 times. So the first 10 went through pretty quickly. But after that, it has taken a while.“ I wonder if she thinks the Bill of Rights were adopted as part of the Constitution, or is her copy of the Constitution missing 10 amendments?
Maddow then asks (not noticing the numeric inaccuracy),
“Well, are there certain types of constitutional amendments that historically have been easier to pass than others?“
GERKEN: Well, the sort of “oops” amendments when they realized they wrote something in the Constitution or failed to write something in the Constitution that really ought to be there.
So in 1800, when the country nearly fell apart over the presidential race, they amended the Constitution and gave us the 12th Amendment and the Electoral College.“
Actually Ms. Gerken, the “Electoral College” was in the original text of the Constitution.
Article 2 Section 1 Clause 3:
“The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list 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 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 choose 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 choose 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. 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 choose from them by ballot the Vice President.”
The 12th Amendment changed this so that each Elector “shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President.” The 12th Amendment also reduces to 3 the number of candidates the House of Representatives may choose from if no one receives an electoral majority.
Ms. Gerken continues,
“And the other half of the amendments are the ones that are hard to get. Sometimes they involve huge amounts of time and years and years of work. At one point, three of them involved a Civil War. So those are the ones where we are trying to catch up to our Democratic credentials when we sort of remember that this really isn‘t a country that‘s supposed to be controlled by white male property holders. And those are the things that are tough to get through as a general matter and they really took a fight.“
Aside from the 27th Amendment which took 202 years to be ratified, no amendment took more than 4 years after being passed by Congress, though sometimes it took a while to get Congress to act. Another point in which the “Law Professor” is misleading, at best and lying at worst, is her statement about “Democratic credentials”. Maybe she should read the Constitution and she’ll see that the United States of America is supposed to be a “Republic” not a democracy, in fact the word “democracy” or any of it’s variants is nowhere to be found in the Constitution.