The debacle of the old congressional calendar or: how you know the Constitution wasn’t divinely inspired

January 3, 2018

Today is the start of the second session of the 115th Congress. Under the 20th amendment to the Constitution, Congress is directed to assemble at least once a year, at noon on January 3rd, unless by law they appoint a different day. The 20th amendment also specifies that the terms of the Representatives and Senators will henceforth begin at noon on January 3rd of odd-numbered years.

Why were all these changes necessary? What calendar did they use before the 20th amendment? What was wrong with that old calendar?

Put simply: the Framers screwed up the calendar. Badly. And their error had enormous consequences for 19th century politics.

There’s a tendency in popular political culture to assign the Framers a laughably extreme degree of reverence, one way or another. In one popular view, they’re treated as god-like figures who could do no wrong and wrote an infallible Constitution. In the other view, they’re or a bunch of rich elites who designed a self-serving barely-democratic government, which rigged the system against the common man and completely sidestepped the obvious moral question of the day.

Obviously, both of those views are silly. But it takes a fair amount of looking to find a more honest assessment of the Framers; that they were reasonably noble but still self-interested representatives, struggling to adjudicate complicated multi-dimensional issues of political power, with little precedent to guide them and no crystal ball to see an utterly unfathomable future, and through part skill and part luck they landed on a pretty darn good constitutional design, which turned out to have a pile of flaws but a basic stability that allowed a modern nation to emerge mostly unscathed, despite being born in the age of both industrial and democratic revolution.

But given the importance of today—the Constitutional meeting day of a new session of Congress—I’m going to focus on one of the flaws.

The ridiculous old federal calendar

Prior to the 20th amendment, the calendar was frustratingly out of sync, with serious consequences. In Article 1, section 4 of the Constitution, the framers wrote that the Congress “shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.” December was chosen, in part, because it was compatible with the agricultural calendar.

The problem arose when the terms of the Representatives, Senators, and President began on March 4, 1789. This created a peculiar situation: the first session of each Congress was set to begin in December of the odd-numbered years, with the Members having been elected a full 13-months prior, in November of the prior even-numbered year. Even worse, the second session of any Congress did not begin until December of the even-numbered year, after the elections had been held for the next Congress (generating the concept of the “lame duck”). Furthermore, the second session was known as the “short session” because it was only 3-months long, leaving little time to do anything besides the appropriations bills.

This had enormous ramifications in the 19th century: during any two-Congress presidential administration, both second sessions were lame ducks, and the first session of the second Congress was conducted with the presidential election looming. As David Potter has written, this tended toward the first-session of the first Congress of an administration being the only real chance for major legislative successes. Dilatory actions in the second session could produce large concessions, as the hard-deadline of March 3 loomed; indeed, an enormous amount of second-session legislation was signed on March 3, often with the President sitting in the Capitol racing to beat a midnight deadline.

Consider the 1860 election: Lincoln and the GOP won in November, with South Carolina seceding on December 20th, 1860. But Lincoln would not be inaugurated until March 4, and the new Congress was not scheduled to meet until December of 1861! (They actually met in special session called by Lincoln on July 4). Instead, a month after the election, Buchanan’s state of the union message was read in the early days of the second session of the 36th Congress, which was left to try to broker a solution to the secession crisis. And a repudiated administration was left to try to solve the winter crisis and developing stare down in Charleston harbor.

How did the Framers screw this up so badly?

So where did the March 4th date come from? Why didn’t the terms of the members coincide with the start date of the session, as they do now?

The framers screwed up.

Thy did not specify on which date the new government of the United States would begin, in part because it was not known how long the ratification of the Constitution would take in the states. Most likely, they thought the ratification of the Constitution would be complete by spring 1788, such that elections could be held during the summer, followed by the selection of Senators and Presidential electors, all in time for the government to begin on the first Monday of December 1788. That way, the terms of the President and Members would correspond to the constitutional calendar, with the first session of each Congress beginning at the same time.

However, the ninth state did not ratify the Constitution until the end of June 1788 and only 11 states had ratified by September. Since there was not enough time to hold elections and begin the new government in December of 1788, the Continental Congress was faced with an unappealing choice:  either delay the start of the still-fragile new government for an entire year (and begin in December 1789) or set a start date for the new government that did not coincide with the constitutionally-set calendar. So on September 13, 1788, the Continental Congress — based on the practical need for time to hold elections and select Presidential electors in the states, as well as a desire not to delay the new government for an entire year — specified the first Wednesday in January 1789 as the day for electors to be appointed in the states, the first Wednesday in February 1789 as the date for the electors to assemble and cast votes for President, and  the first Wednesday in March  as the start day for the new government.

This is a worse problem then it initially appears. Once the new government began on March 4th, the date could only be altered by Constitutional amendment, since the terms of the Representatives, Senators, and President were fixed at exactly two, six, and four years, respectively. (They couldn’t simply shorten the 1st Congress and start the terms of the 2nd Congress in December).  The only plausible remedy would be Constitutional amendment. What the Continental Congress should have done was originally make the date of the terms of the first Members retro-active to December 1788, allowing the 2nd Congress to be elected in summer 1790 and begin in December 1790; instead, the 2nd Congress was elected in summer/Fall 1790, the 1st Congress had its second session beginning in December 1790, the 2nd Congress began its term in March 1791, and the 2nd Congress’s first session began in December 1791.

Had the original vision of the Founders been in place in 1860, Lincoln and the newly elected Congress would have taken control in December 1860, prior to South Carolina secession, and months before Fort McHenry had been rendered a showdown by the inaction of the Buchanan administration and the stalemate in the second session of the 36th Congress. This is not to say that calendar caused the war. But it certainly didn’t help.

The 20th amendment

There’s a folklore belief that the delay between FDR’s election and the his inauguration was what spurred the amendment into being, but that’s largely urban legend: similar proposed amendments had passed the Senate every Congress since 1923, and the successful amendment was out of Congress well prior to the 1932 election, with specific language that it would not go into effect, even if passed, in time for the 73rd Congress.

Why didn’t they fix the problem earlier? One possibility was the old Senate: prior to the ratification of the 17th amendment in 1913, action by the state legislature was needed to pick Senators. But virtually all state legislatures held their sessions early in the calendar year, after Fall elections. If the federal calendar was adjusted to pull the terms of Members back from March into December, there was a real possibility of a large number of absent Senators in the first session, the state legislatures having not yet met.

Well, what about adjusting the start date of the session to match the March 4 term date? That was not possible, either, for an even more basic reason: the weather. I’ll let the Senate Committee on the Judiciary explain that:

[It is true that you could have a session] after the 4th of March, but [this would] not give the new Congress very much time for the consideration of important national questions before the summer heat in the Capital City makes even existence difficult and good work almost impossible. it is conceded by all that the best time for legislatures to do work is during the winter months. Practically all the States of the Union recognize this fact and provide for the meeting of their legislatures near the 1st of January.

More evidence for Nelson Polsby’s air-conditioning theory of American politics!

When the 20th amendment was drawn up and ratified, it also fixed a nagging secondary problem of the old calendar: since the President’s term and the congressional terms were identical, in any case where no one got a majority of the electoral votes and thus Presidential selection was handed to the House, it was the old outgoing House that got to vote, which made little sense. Under the 20th amendment, the Presidential term begins 18 days after the term of the new Congress, allowing the incoming House to choose the President in such a situation.

References

Max Farrand and David Maydole Matteson, The Records of the Federal Convention of 1787, vol. 2 (New Haven: Yale University Press, 1966), pp. 197-202 (August 8, 1787).

Worthington C. Ford, ed.,  Journals of the Continental Congress, 1774-1789, vol. 34 (Washington, D.C., 1904-37), pp. 522-523.

Potter, David. The Impending Crisis, 1848-1861, Harper (1977).

United States Congress, Senate, S. Rep. No. 26, 72d Cong., 1st Sess. (Washington: GPO, 1932).

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