The Constitution Does Not Speak for Itself

The reigning mythology of the United States holds that the Constitution recognizes our fundamental rights and that the Supreme Court is our sentinel, guarding us from any Congress or presidential administration that may seek to steal our freedoms. We tell ourselves that the Constitution, standing above the daily fray of political struggle, is a surer shelter than any temporary majority might be. But the Constitution is just a piece of paper, and the Supreme Court has its temporary majorities as well. The question posed by James Madison in 1788 is just as salient today: should we trust “these parchment barriers against the encroaching spirit of power?”

The next four years promise renewed assaults against fundamental freedoms. Donald Trump has already launched an assault against birthright citizenship. The Fourteenth Amendment makes it clear that anyone born in the United States to immigrant parents, with or without documentation, is an American citizen. But what happens if the government ignores — or misreads — the plain text of the Constitution?

It is not a purely hypothetical question. To get some traction on an answer, we can look to a little-remembered constitutional controversy from 1841. Most Americans do not know that there is significant doubt as to the number of presidents the United States has had. If pressed, they might identify John Tyler as the 10th to hold the office, the first to assume the position after the death of the previous president — in Tyler’s case, the unfortunate William Henry Harrison, who died in 1841, a month after his inauguration. In 1841, however, the Constitution did not allow the vice president to become president. 

The unamended Constitution provides that “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 Same shall devolve on the Vice President.” The meaning of this clause is unambiguous. When the president dies, the vice president shall discharge the powers and duties of the office of president. The vice president does not become president but rather remains vice president while acting as president, exercising the powers and duties of both offices simultaneously. Tyler, however, argued that the text was unclear.

It may seem a dry academic exercise to relitigate the proper title of Acting President Tyler. The stakes of the constitutional crises we face today are so much graver. Even in 1841, weightier issues commanded the public’s attention. But the Tyler controversy provides a stark reminder that the Constitution does not speak for itself. Often, the media treat the Constitution as an inviolable, external limit on political life. There is no need to take seriously Trump’s musings about a third term or his threats to send American citizens to prisons in El Salvador, these observers assume. After all, the Constitution forbids it. So, too, did the Constitution forbid Tyler from claiming the presidency.

William Henry Harrison died in Washington at 12:30 a.m. on April 4, 1841. The Cabinet composed a letter the same day, addressed to “John Tyler, Vice-President of the United States,” and dispatched a messenger to carry “these melancholy tidings” to Tyler in Williamsburg, Virginia. Upon receiving the letter, Tyler quickly set off for Washington. Though the April 4th letter had been addressed to the “Vice-President,” Tyler insisted on claiming the presidency. On April 6, he took the presidential oath of office. Tyler remained prickly about his title throughout his time in the White House. When he received letters addressed to the vice president or the acting president, he returned them unopened.

Congress had reservations about Tyler’s unconstitutional claim to the title. On April 16, 1841, former president John Quincy Adams, then serving as a Whig congressman from Massachusetts, wrote in his diary: 

I paid a visit this morning to Mr. Tyler, who styles himself President of the United States and not Vice-President acting as President, which would be the correct style. But it is a construction of the Constitution, in direct violation both of the grammar, and context of the Constitution, which confers upon the Vice-President on the decease of the President, not the office, but the powers and duties of the said office.

On May 31, 1841, when one congressman moved to draft a resolution addressed to the “President of the United States,” Rep. John McKeon, a Democrat from New York, objected. McKeon “moved to amend the resolution by striking out the word ‘President,’ and inserting the words Vice-President, now exercising the Office of President,” citing the text of the Constitution. 

The plain reading of the Constitution’s provision that if the president is unable “to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President,” he argued, is that “the Same” it is referring to “the Powers and Duties of the said Office,” not “the said Office”; that is, the powers and duties of the office of president — rather than the presidency itself — shall devolve on the vice president. Moreover, if one reads this passage as saying that the office of president will devolve on the vice president, it is hard to interpret the Constitution’s directive that the Senate shall choose “a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States” as anything but surplusage. This language — clarifying that a vice president cannot simultaneously act as president of the United States and serve as president of the Senate — strongly implies that the vice president continues to hold that office while “exercis[ing] the Office of President”; otherwise, the provision would serve no purpose. The majority of the House rejected Rep. McKeon’s motion, but some congressmen continued to dissent. 

In the election of 1840, the Whigs had secured majorities in both houses of Congress. Harrison was the first Whig president, and the party appeared poised to advance its legislative agenda of protective tariffs and the reestablishment of a national bank. Tyler saw himself as a defender of states’ rights and — his reliance on a rather strained reading of the Constitution to declare himself president notwithstanding — a believer in a strict construction of the Constitution. The Whigs had long complained about President Andrew Jackson’s use of the veto and the growing concentration of federal power in the executive. They were aghast when Tyler vetoed bills passed by his own party.

As Tyler increasingly clashed with the congressional Whigs, his party turned against him. On September 13, 1841, the Whigs in Congress expelled Tyler from the party. In 1842, a Whig congressman from North Carolina referred to Tyler as “the President, or the Vice President, or acting President, or whatever he was.” In 1843, a Whig congressman from Virginia declared, “I do impeach John Tyler, Vice President, acting as President of the United States, of the following high crimes and misdemeanors…” Tyler retained sufficient support in Congress, however, and the House declined to pursue impeachment.

Outside of Congress, the press actively debated Tyler’s constitutional status. Tyler’s opponents branded him with the epithet “His Accidency,” a mock title that Americans used to deride politicians who attained their office through the death of the previous incumbent. In general, the opposition of politicians and newspapers to Tyler’s claim to the presidency waxed and waned in concert with their opposition to his political positions.

The press made sophisticated constitutional arguments. As one Democratic newspaper explained on May 12, 1841: 

We were at first, with many of our contemporaries, under the impression that Mr. Tyler’s proper title would be The President. But on a further examination of the Constitution, we think he should be called the Acting President. The words of the [Twelfth Amendment] are: “And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.” It would have been just as easy and much more proper to have said shall be President, if the framers of the Constitution had so intended, as to say act as President.

To act as president and to be president, as the newspaper observed, are not the same thing. A president and an acting president both have the powers of the presidency, however, and substantive debate over the Whigs’ economic agenda eclipsed sniping over how Tyler ought to be addressed. 

Still, Tyler had the power of the presidency, and he refused to abide by the dictates of the Constitution. The Cabinet fell in line first. Indeed, members of the Cabinet actively supported Tyler’s claim to the presidency. Despite the scattered voices of dissent, Congress failed to robustly challenge Tyler’s violation of the Constitution, even after he became a president without a party. Newspapers opposed to Tyler continued to question his claim to office, but more often in snide asides than through extended argument. The issue never came before the courts. Tyler’s misappropriation of the title of president did not materially injure any party; no one would have had standing to sue. Concerned more with daily politics and economic issues, no institution inside or outside of government was committed to ensuring that Acting President Tyler obey the Constitution.

Tyler’s opponents eventually gave up. When Zachary Taylor died in office in 1850, the country accepted that Millard Fillmore was the new president. The “Tyler precedent” had been established. In effect, Tyler’s open violation of the Constitution had acted as a constitutional amendment. The Constitution now meant what Tyler said it meant. The words on the page became a dead letter. 

The 1963 assassination of John F. Kennedy drew renewed attention to the constitutional uncertainty surrounding presidential death and disability. In 1967, the 25th Amendment made legal — for future vice presidents — what Tyler had done. It provides that the vice president becomes president in cases of the president’s death or resignation and that the vice president acts as president — without assuming the office — in cases of temporary incapacity. When Richard Nixon resigned in 1974, Gerald Ford did not act as president; Ford was president. 

Tyler’s violation of the Constitution was so successful that it has become invisible. Hardly anyone questions that he was the 10th president, even though his claim to the office rested on an exceptionally strained reading of the Constitution. The words of the Constitution were the same in 1842 as they were in 1840, but their meaning had shifted. Tyler’s opponents read the Constitution correctly, but they were unable or unwilling to defend it. We reaffirm Tyler’s defiance of the Constitution every time we say that Abraham Lincoln was the 16th president (instead of the 14th) or that Franklin Roosevelt was the 32nd (instead of the 28th). 

The Constitution is only as strong as the people who breathe life into its words. No clarity of prose can serve any purpose unless the plain meaning of the text has the support of the public. Freedom is too important and the Supreme Court is too feckless to trust judges to protect our rights. We must stand sentinel for one another. When the government goes after those among us with the least power — the poor, the despised, the stranger — we must respond with the greatest force. Once power overawes the niceties of the nation’s fundamental law, it is nearly impossible to unring the bell. As the poet A.E. Stallings observes, you can “scrape the ruined toast,” but “what is burned is burned is burned.”