The 2024 presidential election is likely to be the first time since 1892 that an incumbent president is running against another former president. And with early primaries having such an outsized influence, the slate could be a virtual lock before Super Tuesday even rolls around—even though most Americans don’t want a Biden-Trump rematch.

John Davenport, Ph.D., professor of philosophy at Fordham and former director of Peace and Justice Studies, said there are three main problems with the uniquely American presidential primary system that have contributed to this likely matchup: the scheduling of the primaries, the way the delegates are determined, and a lack of uniformity in who can vote in each primary.

‘Glaringly Unfair Tradition’

The Constitution doesn’t say anything about how political parties or their nomination processes should work, because the authors didn’t foresee the power of parties, which now set their own primaries, Davenport said. One result is that just a few states keep holding the earliest primaries.

Davenport called it a “glaringly unfair tradition” that four states have cornered the market.

“Early primaries bring huge profits to businesses in early states and give them more influence. Iowa rescheduled its chaotic caucus to just a week after New Year’s Day in 2024, and New Hampshire’s Republican primary election was eight days later, followed soon by Nevada and South Carolina.” 

While outcomes in Iowa and New Hampshire are not always decisive, their small populations, combined with South Carolina’s, have enjoyed enormously disproportionate influence that can eliminate candidates who might have remained viable if the first primaries were held in more populous states, he said.

“Thus they can cut nine out of 10 American voters out of the process, especially when early frontrunners gain big leads,” he said, adding that “no other advanced democratic nation” allows this.

Lack of State Uniformity

Inconsistency in how delegates are awarded also affects who ultimately wins the party nominations.

Because the Republican primaries in Iowa and New Hampshire operate somewhat proportionally, Nikki Haley won 17 delegates to Trump’s 33 by garnering about 40% of the combined vote in those two states. But in South Carolina’s Republican primary this month, the majority winner in each district will take all of its delegates—meaning that Haley could get 38 to 40% of the votes but gain zero delegates out of the state’s 50-delegate total, That would make it much harder for her to raise funds for the races in Michigan and on Super Tuesday in early March. Davenport said. In still other Republican primaries, a candidate finishing first gets all or most of the state’s delegates.

By contrast, in Democratic primaries in all states, each candidate gets a number of delegates that is loosely proportional to their percentage of the popular vote. 

Who Gets to Vote?

Equally inconsistent is whether a state’s primaries are open to independent voters or just those in the party holding the primary.

New Hampshire’s Republican primary was open, and many independents voted, boosting Haley’s numbers. Nevada, which this year held both a Republican primary and caucus, closed those races to independents. 

What’s the Solution?

“Congress has the authority to change the primary election calendar, rotating the chance to hold early primaries among five or six regions of the U.S., so that every state gets a fair opportunity over five or six presidential election cycles to hold high-impact primaries,” said Davenport.

Federal law could also solve the delegate problem by mandating that political parties use one method to award convention delegates in all state primaries. And by mandating open primaries in all states, federal law could help moderate candidates continue longer in tight races, he said.

“These are just a few examples of sensible and non-partisan reforms,” said Davenport.

John Davenport has taught in undergraduate and graduate programs at Fordham since 1998. He is the author of several articles and books, including 2023’s The Democracy Amendments, which attempts to synthesize two decades of creative ideas to fix the federal system into a comprehensive program.

John D. Feerick, dean emeritus and the Norris professor of law at Fordham Law School, was instrumental in getting the amendment passed. In October 1963, Feerick, then a recent graduate from Fordham Law, published an article in the Fordham Law Review on the subject, and just a month later, President John F. Kennedy was assassinated, prompting members of Congress to revisit the subject. Four years later, in February 1967, the amendment was passed.

We sat down with him to learn more.

Full transcription below:

John D Feerick: I suppose my expectation, at that point, was the article would be retired to a library as a scholarly treatment on the subject, but what happened instead was two days later I got a call from the media because they had become aware of my article and all of a sudden people were asking me to share with them knowledge I had in the subject, and that just grew in intensity.

Patrick Verel: The 25th amendment to the US Constitution is probably best known for what is the fourth and final section, which spells out the way the president of the United States can be removed from office if they’re alive, but unable to fulfill the duties of the office. But the second section, which clarifies the process for replacing a vice president, is actually worthy of consideration as well, now, that President Trump has become the third president in the country’s history to be impeached and is facing a trial in the U.S. Senate.

John D. Feerick, sean emeritus and the Norris Professor of Law at Fordham Law School was instrumental in getting the amendment passed. In October 1963, Feerick, then a student at Fordham Law, published an article in the Fordham Law Review on the subject. And, just a month later, President John F. Kennedy was assassinated prompting members of Congress to revisit the subject. Four years later, in February 1967, the amendment was passed. We sat down with him to learn more.

I never realized that if it were not for the passage of the 25th amendment, Richard Nixon would not have had a clear path to choosing a replacement for his vice president, Spiro Agnew, when he resigned before him in 1973. Because he was able to appoint Gerald Ford as a replacement, Nixon could afford to resign, which he did in August 1974, without fear that the then democratic speaker of house would become president. Now, of course, it’s something that could come into play if the US Senate removed Trump from office and Mike Pence needed to then appoint a new vice president, lest Nancy Pelosi be next in line for the presidency.

When you were working with Senator Birch Bayh to craft the amendment, were you playing through these kinds of scenarios?

JF: Yes. And the reason they were part of the conversation is because if you look back in the history of the country, there was a period of 37 years where there was no vice president, and the next in line was in a statute. So there was no way to replace the vice president, and we saw all the reasons why there should be a replacement provision because the line of succession made it possible, the 1947 line of succession, for the other party to take over halfway through a president’s term if something happened to the president and there was no vice president. And so that kind of scenario was very much in not only on our minds but in conversations.

PV: And then you got to see it be tested in real-life when Spiro Agnew then resigned. I mean, how shocking could that have been?

JF: It was very shocking to me, I was a young lawyer at the time. And the idea of allegations of criminal conduct by the vice president, I think, prior to his vice presidency, but there might’ve been some lingering aspects to it. It was new, and shocking. And yet, there was this new amendment in place to replace the vice president and Gerald Ford was chosen for that purpose.

PV: Now, the issue of succession, obviously, was not new at the time. And, in fact, the law had been changed just 20 years earlier when President Truman presided over a law that restored the Speaker of the House to third in line from the presidency. Now, there are proposals to change the law again. What should be done, in your opinion?

JF: My own view of the subject, which I first expressed when I wrote a book published by the Fordham University Press called From Failing Hands, was ideally a cabinet line of succession. So that if anything happened to the president, and the vice president having a cabinet line of succession, that assures the continuation of the administration that began at beginning of a presidential term. And, we’ve had such a line of succession from 1886 to 1947, and I think that line was much better at assuring continuity in the presidency than the ’47 law.

PV: What were they thinking in 1947? Why did they do that? I mean, if it seems like they had a process that, you say, was a good one in the first place, why did they feel the need to change it anyway?

JF: Well, I think the theory was that the existing president could choose his successor because the successor would be in the cabinet where the sitting president then have a chance to nominate. And once that person’s confirmed, he would have, essentially, put in place, if something happened to the vice president at that time, a person. And President Truman felt a more democratic process in terms of choosing a president would be to have an elected person such as the Speaker tapped for that kind of service. And so the Speaker went in the line of succession, the 86th line of succession. Speaker went in first, president pro temp went in second, and then the cabinet. So the cabinet was kept in place in the line of succession after the speaker and the president pro temp.

PV: So it was a way of sort of empowering, I guess, members of Congress as opposed to the presidency, bringing that branch of the government into more of a equal stature, I guess, to the presidency?

JF: Not so much that. It’s more the fact that, say, the Speaker is chosen by the representatives of the people from all over the country to be the Speaker, and so there’s an indirect but very strong democratic presence there because of people being elected.

PV: When did you know that this was a thing you really wanted to put a lot of work into?

JF: I would say about the time I was graduating from law school, in 1961, I was a political science major at Fordham College. I fell in love with the constitution because of, maybe, the best teacher I ever had, professor at Fordham college, William Frasca. And then, at law school I expressed my interest in the constitution on the law review by writing notes for publication, as other students were doing, on constitutional subjects. So, I had a hankering for continuing to write, which I had done on the law review at the law school. And I happened to see that subject as a subject of disability of a president being a lingering weakness in the constitution. And it just struck me as something that would be very interesting to tackle.

And I had some experience with succession when I was vice president of the student body at Fordham College. I was vice president of the student body at Fordham, and the vice president had authority to decide election issues. And an issue developed during my tenure when the people who were going to replace our group, we were in senior year, you had third year people were elected to be the new officers. The president who was just elected in that ticket the year after me, was medically not well, and he resigned the position. Others said, then, it’s the other person, the other candidate for the presidency should become the president. And I said, no, because under the student constitution, the vice president succeeds to the presidency and that ruling stuck by the Fordham Court.

PV: So you had a little practice here for a much bigger issue.

JF: I had a little succession experience. When I got out of law school, I became interested in the subject and I wrote this article after looking at how other countries dealt with presidential succession, how the States dealt with succession to the Governor’s Office. I read all the articles and the debates, and the like. And I finally finished the article and it was published in October 1963. And my thought, at that point, was I sent reprints of the article around to people who had an interest in the subject. And little did I realize that a month later president of the United States would be assassinated. The week before President Kennedy was assassinated, I had communications from his brothers and The White House, because they got a copy of the reprint of my article, and said they had an interest in the subject. They, thanked me for sending the reprints.

And also from President Nixon. He was former vice president, at that point, for Eisenhower. And I suppose my expectation, at that point before the assassination, was the article would be retired to a library as a scholarly treatment on the subject. But what happened instead was a day after the president’s assassination, I got a call from the media … or two days later I got a call from the media because they had become aware of my article because it was commented on in The New York Times on Sunday, the 24th of 1963. And all of a sudden people were asking me to share with them knowledge I had on the subject and that just grew in intensity.

I was asked by the American Bar Association to be part of a small group, 12 people, most of whom were very senior to me to look at the constitution, and see how it might be addressed in terms of disability. And our recommendations became very important to Senator Bayh, and leaders of Congress, and we joined together, so to speak, in terms of promoting the idea of a constitutional amendment.

PV: Thinking a little bit about impeachment, since that’s what’s in the news right now, we now have two articles of impeachment that have been passed by the House of Representatives, and are going to be debated in the United States Senate. The current articles of impeachment are, to paraphrase, number one, President Trump abused his power by soliciting foreign interference by pressuring an ally, Ukraine, to announce an investigation into a political rival, former vice president Joe Biden, while withholding military aid and dangling a head of the state meeting, thereby corrupting the integrity of the United States elections. And number two, Trump obstructed Congress, a coequal branch of government, by withholding documents and preventing witnesses from testifying, thereby impeding Congress’ investigatory power.

So this will be the third time this has happened in your life, if you count Richard Nixon who resigned before he could be impeached. What’s different this time around?

JF: Let me come at that question a little broadly. An impeachment trial or an impeachment in the House of a president is a very horrible kind of thing. And yet because there’s serious allegations that have been brewing and it needs to be dealt with in the process, laid out in the constitution. And back in the time of Lincoln, we probably never had a more hostile relationship between the Congress and the president because of reconstruction. And in terms of Nixon, we had a situation where the president counselors and advisors, as I see it, encouraged him to resign. And so we never went to have an impeachment vote or a trial. In terms of Clinton, of course, there were allegations about sexual misconduct that became a part of the articles of impeachment, and we had a trial.

And the one thing I noticed, in just the limited reading I’ve done, about Clinton is that the leaders in the Senate, both political parties Lott and Daschle, worked very closely together to develop rules that were eventually approved by the whole Senate. And were very tenant to the constitution in terms of the seriousness of the matter and the obligations members of Congress had in the two different bodies. I’m not sure where this is at right now in terms of if it hasn’t gotten to the Senate, it may get to the Senate very shortly. And I, certainly as a citizen, will be looking very carefully at how the leaders in the Senate of both parties go about their responsibilities under the constitution.

My expectation would be that this Congress, as their predecessor congresses, despite the differences that are there, obviously, will be very mindful of their obligations under the constitution.

PV: So you still have faith that what was written down and the rules that were set forth will help us kind of get through this?

JF: I believe so. And it has in the past. And I think it was 1868, it was more hostility, I mean between the president … between the executive and the legislature than probably ever before in the history of our country, including now.

PV: Yeah, it’s interesting. I feel like when you think about these things, knowing the history of the country and how we’ve gone through periods of strife, as it were, it must be somewhat comforting to you when you look around and seeing what’s happening now.

JF: Oh, very much so. I think we have a process. If, after this experience, people want to reexamine what the constitution has given us, they have a right to do so. And we have changed provisions in the constitution, but this impeachment process comes into the constitution influenced greatly by English legal history and parliamentary history involving impeachments, involving high crimes and misdemeanors, the very same terminology we have in our constitution, has a long history. And I think it’s how do you make it work? What are your rules? How do you deal with getting information? How do you deal with witnesses? There’s a lot yet to be done here.

PV: Now, I understand you’ll be delving into a lot of this in a memoir that’s going to be coming out in April.

JF: For the last 18 years, I’ve been taking account of where I am in life. And as the oldest of immigrant parents who came here and they had no high school education, but America offered them a promise of a better life. And I talk about that the history in my family. And then, I talk about my own life because my own life was very much tied to the dream my parents had for all of their children. Pursue opportunities that come your way, and contribute as best you can. All of that’s wrapped up in this book. It’s called That Furthest Shore: A Memoir of Irish Roots and American Promise.

PV: So you’ve been working on it for 18 years?

JF: 18 years.

PV: Wow. That’s going to be very gratifying to see that finally hit the shelves.

JF: I’m glad it’s over. Really.

PV: Was it hard to do? Was it hard to sum it all up?

JF: Yeah, very hard. And initially the idea of my writing a book about myself, so to speak, I’m not comfortable with that, but I said it wasn’t about myself really. Yes, it’s about myself, in one sense. It really was about my parents, and their dreams, and I did have experiences that fulfill their dreams.

Alexander Hamilton, James Madison, and other members of the country’s founding generation would be likely be dumbfounded by that answer, said Saul Cornell, Ph.D., Fordham’s Paul and Diane Guenther Chair in American History.

In The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780s–1830s (Cambridge University Press, 2019), a new book he co-wrote with Gerald Leonard, Ph.D., of the Boston University School of Law, Cornell tells the story of how the Constitution was shaped; what it was supposed to do when it was ratified; and just as important, how it began to change almost immediately after it was ratified.

A Sharp Break With the Past

For starters, he said it’s worth remembering that in one generation in the late 1700s, aristocracy and monarchy, which were the two central institutions of European government for thousands of years, were tossed aside by the leaders of the American Revolution.

“So, what were the American revolutionaries going to do to replace it? We tend not to think about that because we’ve done it successfully for 200 years and we take it for granted. Today most countries in the West are parliamentary democracies, but our constitutional form is unique,” he said.

The original answer to this question, he said, was far from the “government for the people, by the people” majority rule that we envision the country to be now.

“We still mistakenly think we were always meant to be a democracy. We don’t realize what a struggle it was to take a government that was not designed to be a democracy and make it one,” he said.

Far from being open to a full-fledged democracy, the founders actually established a republic governed by an enlightened elite.

The book, which is geared toward everyone from casual readers to graduate students, sets the scene of the creation for the Constitution, which was ratified in 1788. At the time, he noted, constitutionalism pervaded American culture in a way that’s inconceivable now.

“People were saying in private letters that, ‘Everyone from the doorman at the tavern to the governor is talking about the constitution.’ While I’m sure there were some people who were too drunk to know what was going on, or just not paying attention, what’s remarkable is how many people were caught up in it and paying attention,” he said.

Government by the Few for the Many

Of course, that didn’t mean that everyone actually got a say in the conversation about the Constitutions.  Women, slaves, and native Americans were not directly part of the great debate.

“The general view of most legal scholars is that the people must have been quiescent or just inarticulate. But in fact, they were very much trying in whatever ways were available to them to have their voices heard. There were a lot of people doing the best they could to take the ideas of the American Revolution and make them their own,” he said.

The founders also created the Electoral College as another check against unrestrained democracy setting it up to be something akin to the College of Cardinals, the small group that chooses the Pope.

“You’re essentially creating a filtering mechanism so that the people will not directly elect a president who might not be sufficiently educated, informed, or wise enough,” he said.

He noted that the Electoral College was also meant to be a bulwark against the rise of political parties. Thomas Jefferson famously quipped, ‘If I could not go to heaven but with a party, I would not go there at all.’ It was a generation, Cornell said, that was very suspicious of democracy.

“The Founders wanted the people to be involved, but they feared turning over the reins of government to the people; they were deeply worried about that,” he said.

“They’ve looked at the history of Rome, and they know that republics fell because of rabble rousing and the mob: turbulence eventually led to tyranny. So they were trying to create a republic, not a democratic form of government, with checks and balances built in throughout.”

A Populist Movement Emerges

Things began to change pretty quickly, though, thanks to people like Andrew Jackson, a Democrat who was president from 1829-1837. A product of the west, Jackson embraced a more democratic vision for the country, but he did so by appealing to voters who would deny equal rights to women and minorities and who cheered on his vicious treatment of native Americans.

“It was not pre-ordained that America would exclude woman, blacks, Indians. The idea that there was no room for these nonwhite, non-European people in the growing American republic takes center stage with the rise of Jackson,” said Cornell.

The notion of using legal barriers to exclude everyone but white men from political power is obviously absurd today, but Cornell said we’d still be wise to consider the balancing act that the founding generation embraced when they crafted the Constitution. Although ideally democracy and liberty go hand in hand, for most of western history that has not been the case. Many of the populist leaders who have risen to power in recent years, for instance, have done so via democratic processes, but they do not necessarily value or promote liberty, certainly not liberty for all.

“We have this idea that democracy and liberty always support one another. Well, democracy doesn’t always lead to freedom. That’s an important lesson we need to learn,” he said.

If there’s one image that encapsulates Cornell’s thoughts about the American Constitution, he said, it’s the image of Odysseus tied to the mast of a ship in Homer’s The Odyssey. Odysseus understood that if he did not bind himself to the mast it would drive him mad, so, he had his crew plug their ears with wax, and instructed them to not untie him.

“Constitutional governments strive to tie the people to the mast so that they will stay alert but not be swayed by the siren songs of demagogues. The founders sought to build the right kind of mast to tie ourselves to, so we can get back to our safe harbor,” he said.

“If you tied yourself up so tight that you strangled yourself, you haven’t really done yourself much good. If you don’t tie yourself tightly enough to that mast, you’re going to just jump in the water, and you’re another victim of the siren’s song. The nature of constitutional government is to find the right balance between liberty and order:  popular government restrained by the rule of law.”