The 12th Amendment enters The Bob Zadek Show’s constitutional discussions as a marker of change — the point at which the machinery of presidential selection was revised. Across the excerpts, guests refer to it in three distinct contexts: the history of impeachment, the design of the Electoral College, and the Founders’ preference for majority winners. No excerpt treats the amendment as its own topic; it is invoked to explain what the original system did and how it was altered.
The amendment and the vice presidency
Gene Healy, in a discussion of impeachment, describes what the presidential succession looked like before the 12th Amendment. At that time, he says, the vice president was the runner-up in the presidential election, so removing a president really did reverse an election: an impeachment of John Adams would have replaced him with Thomas Jefferson. Healy contrasts this with the modern arrangement, in which the president picks his running mate and both run on the same ticket — so that if Donald Trump were removed from office in a Senate trial, he would be replaced by Mike Pence, not Hillary Clinton, and the election would not be reversed. Before the 12th Amendment, Healy says, a presidential impeachment could produce sweeping policy changes, and the ratifiers either had not thought it through or were more tolerant of that prospect; they hoped political parties would not emerge as quickly as they did Which Impeachment Movie Are You Watching? (2019).
Bob Zadek frames the same episode’s discussion around the indirect election of the president. He observes that the president was not popularly elected, so impeachment in the eyes of the Founders was not undoing the will of the people; it was undoing the will of the Electoral College. He notes that the country politically is so different from the country of 1787 that one has to wonder whether the Founders’ views translate to 2019 Which Impeachment Movie Are You Watching? (2019).
The House contingency and the top three
Randall Holcombe, discussing the Founders’ design of the Electoral College, states that the Constitution originally said the House of Representatives chooses the president among the top five vote-getters, and that this was changed by the 12th Amendment to the top three electoral vote-getters. He describes the Founders’ expectation that electors would in most cases vote for a favorite son candidate from their own state, which meant nobody would get an electoral majority, so the House would choose from the top electoral vote-getters. Holcombe characterizes the Electoral College as a search committee of experts forwarding a list of names to the House [[episodes/john_marini_on__unmasking_the_administrative_state|John Marini on Unmasking the Administrative State (2019)]].
The same passage appears in a later episode with Holcombe, where he repeats the account: the Constitution originally specified the top five vote-getters, changed by the 12th Amendment to the top three Randall G. Holcombe on Liberty in Peril (2019). In both tellings, Holcombe uses the amendment to illustrate how the Founders sought to insulate presidential selection from democratic pressures — electors chosen by the states, voting on the same day, with the House as the ultimate contingency.
Majority versus plurality
Ned Foley, asked by Bob Zadek to compare the Electoral College with direct popular vote, says his own preference would be to replace the Electoral College with a national popular vote, but with a crucial caveat about majority versus plurality. The Founders, Foley says, cared about this point: they said you had to win a majority of electoral votes, and in the debates about the 12th Amendment that revised the Electoral College, they spent a lot of time on the distinction between majority winners and plurality winners. They wanted majority winners because they thought that represented the public as best as possible Enhancing Trust in Democracy (2022).
Foley says he would not want a pure popular vote if somebody could be president with 33% or 22% of the vote in a multi-candidate race; he thinks a candidate has to cross the 50% threshold. He identifies a problem in the current system: although a candidate needs a majority of electoral votes, that majority can be won by plurality victories in the states. He asks how many states Bill Clinton won a majority of the popular vote in when he first won in 1992. Zadek guesses Clinton received about 43% of the popular vote, which he attributes to Ross Perot. Foley confirms that Clinton never crossed 50% nationally, won a majority of electoral votes by winning enough states, and won a majority of the popular vote only in his home state of Arkansas and the District of Columbia; every other state he won with under 50%, some under 40% because Perot and Bush split the vote. Foley calls that not a good system and says it is not a partisan point Enhancing Trust in Democracy (2022).
Across episodes
The 12th Amendment is touched on in four episodes spanning 2014 to 2022. The treatment does not develop across them: Healy in 2019 uses it to explain why pre-amendment impeachment could reverse an election; Holcombe in 2019 uses it twice to explain the House’s choice set; Foley in 2022 uses it to show the Founders’ concern for majority winners. Each guest invokes the amendment for a different purpose, and no excerpt responds to or revises another’s account.
What the sources do not cover
The excerpts do not state when the 12th Amendment was proposed or ratified, what its full text provides, or which election prompted it. They do not name the cases or controversies that turned on it, and they do not describe the amendment’s treatment in any court. The sources also do not address the amendment’s relationship to the 17th Amendment or to later electoral reforms beyond the brief mentions noted above.