Friday, July 3, 2015

Amendments 11 and 12 - Clarifying A Few Things

After a few posts not having to do directly with the Constitution, let's get back to the amendments.  We left off at the end of the Bill of Rights and now we will take a look at the first two amendments after the Bill of Rights.

Amendment 11, ratified in 1795, says this:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Which means what, exactly?  It means that a state cannot be sued in federal court except under certain circumstances (defined later).  This amendment was a reaction to the Chisholm v Georgia case after the Revolutionary war, in which a South Carolina man sued the State of Georgia for payments due for supplies delivered to the state during the war.  Georgia refused to appear, claiming sovereign immunity, and the court ruled against Georgia.  The ruling was so controversial that the 11th Amendment was adopted in response and was ratified in less than two years after the decision.  Essentially, it removed most federal jurisdiction over cases in which a state is sued by someone outside the state.  There's a lot of legal detail involved, but basically, it gave power back to the state court systems that Congress thought the Supreme Court had inappropriately given itself in the Chisholm case.

This is one of those amendments, like the 3rd, that makes a great party trivia question...

Amendment 12, ratified in 1804 has a much longer text, one of the wordiest of all amendments.  It reads:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists 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 President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, 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. 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 the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
This amendment fixed a flaw in the original method of electing the president, as set forth in Article II, in which each elector could cast two votes for president. For the first four elections, the process was this: the electors cast their votes and whoever got the most votes, assuming it was a majority of the total, was president. If no one got a majority, the top five vote-getters would be put to a vote in the House and the one who got a majority there would be president. Choosing the vice-president was easier - whoever came in second, even if he did not get a majority, was vice president.

By the third election for president (1796), the first major flaw was apparent.  Federalist John Adams got a majority of the electors' first votes and was elected president, but his rival, Democratic-Republican Thomas Jefferson, finished with the most second votes, and was therefore vice president.  It became clear that having rivals in the offices would not be conducive to good working relationships.

Four years later, the election of 1800, which we discussed previously here, exposed yet another flaw by showing that if electors split their votes evenly between members of the same party, two candidates from the same party would get the same number of votes, throwing the election into the House.  A plan for one Democratic-Republican elector to withhold his second vote for Aaron Burr was bungled, giving Burr and Jefferson the same number of votes.  The resulting House vote was a marathon affair, taking a total of 36 ballots to finally elect Jefferson president.

An interesting feature of the amendment is that if the election is sent to the House, each state has a vote, not each representative.  Since adoption of the amendment, a presidential election has gone to the House only once, in 1824, when John Quincy Adams defeated Andrew Jackson 13-7 (with William Crawford earning 4 votes), even though Jackson had earned the most (but not a majority) in the initial electoral vote 99-84 versus Adams (with two others totaling 78 votes).

The 12th Amendment, in effect, directed electors to make discrete votes for president and vice-president.

Next up - Amendments 13-15, the "Civil War Amendments" (and maybe a guest blogger - stay tuned!).

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