Temecula Constitution Class, Amendments 11 and 12

Join us at Faith Armory on Winchester Road in Temecula at 6:30 pm for this insightful study of the United States Constitution.

Lesson 10

Limiting the Courts and Changing Electoral Procedures

10.1 – Amendment XI, Further Limiting the Courts

The Judicial Branch was added almost as an after thought. The judiciary was originally designed to be the weakest of the three branches of government. The Anti-Federalists feared the judicial branch becoming a judicial oligarchy, and therefore the judicial branch was constructed to only apply the law to cases they hear. All opinions the judges may have of the law after reviewing the law was considered to be only opinion. Any changes to law, regardless of what the courts felt about the law, could only be made legislatively. However, soon after the Constitution and the Bill of Rights, fears of a tyrannical court arose, and so additional limits were placed on the federal courts by the 11th Amendment. No case against a state by citizens of another state, or by the citizens or subjects of a foreign state, shall be heard by a federal court.

The 11th Amendment changes the intent of Article III. As limited as the courts were supposed to be, the Founding Fathers realized the courts weren’t limited enough, and as a result, the 11th Amendment wound up being ratified in 1795.

Federal judges maintained that the federal courts should have the power of judicial review, or the power to determine the constitutionality of laws. In response to the judicial urgings for the powers to judge the extent of the federal government’s powers, in the Kentucky and Virginia Resolutions of 1798, Thomas Jefferson and James Madison warned us that giving the federal government through its courts the power of judicial review would be a power that would continue to grow, regardless of elections, putting at risk the all important separation of powers, and other much-touted limits on power. The final arbiters of the Constitution are not supposed to be the courts, argued these Founding Fathers who were believers in the limiting principles of the U.S. Constitution. The power of the federal government must be checked by state governments, and the people. The States and the People are the enforcers and protectors of the U.S. Constitution.

The problems of federal intrusion on the states via the federal court system arose in the case of Chisholm v. Georgia in 1793, which eventually led to the proposal, and ratification, of the 11th Amendment. A citizen of South Carolina sued Georgia for the value of clothing supplied by a merchant during the Revolutionary War. After Georgia refused to appear, claiming immunity as a sovereign state, as per the Constitution (Article III, Section 2) the federal courts took the case. The nationalist view by the justices deemed that in this case Georgia was not a sovereign state, therefore the Supreme Court entered a default judgment against Georgia. What ensued was a conflict between federal jurisdiction and state sovereignty that reminded the anti-federalists of their fears of a centralized federal government consolidating the states, and destroying their right to individual sovereignty.

Realizing that the clause in Article III gave the federal courts too much power over state sovereignty, Congress immediately proposed the 11th Amendment in order to take away federal court jurisdiction in suits commenced against a state by citizens of another state or of a foreign state. This is the first instance in which a Supreme Court decision was superseded by a constitutional amendment, and evidence that the founders saw the legislative branch as being a more powerful part of government over the judiciary.

Terms:

Judicial Branch – the branch of the United States government responsible for the administration of justice

Judicial Review – The unconstitutional authority of the federal courts to review law, interpret the Constitution regarding laws, and then determine the constitutionality of laws.

Separation of Powers – A division of governmental authority into three branches: legislative, executive, and judicial.

State Sovereignty – The individual autonomy of the several States.

Questions for Discussion:

1.  Why did the Founding Fathers design our governmental system with the Judicial Branch being the weakest of the three branches of government?

2.  Why is judicial review only supposed to be an opinion?

3.  How did Chisholm v. Georgia change the authorities granted to the federal judiciary?

4.  How does the 11th Amendment protect State Sovereignty?

Resources:

Chisholm v. Georgia, 2 Dall. 419 (1793), Cornell College – Politics: http://cornellcollege.edu/politics/courses/allin/365-366/documents/chisholm_v_georgia.html

Jefferson’s Draft of the Kentucky Resolutions – October 1798, Avalon Project, Yale University: http://avalon.law.yale.edu/18th_century/jeffken.asp

Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution – Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).

Madison’s Notes Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp

Virginia Resolution of 1798, Constitution.org: http://www.constitution.org/cons/virg1798.htm

10.2 – Amendment XII, Electoral Procedures for Electing President Changed

Text of the 12th Amendment: 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.

The Twelfth Amendment changes the procedure for electing the President and Vice President originally provided for in Article II, Section 1, Clause 3. The procedure has remained the same since its ratification, save for the States changing their procedures from appointing the electors by the choice of the state legislatures, thus following the instructions of the state legislatures, to the citizens voting for who the electors are expected to vote for. Though the electors are free to vote for anyone eligible to be President, in practice they usually vote for the candidates chosen by the voters in their state. 1824 is the last election in which electors were primarily appointed by their state legislature. In that election, six states followed that procedure.  South Carolina was the final State to follow that practice, ceasing the appointment of their electors by the State legislature upon the approach of the American Civil War.

Each state is constitutionally allowed to choose how to appoint or elect their electors, and the methods vary state to state. Generally, electors are nominated by their state political parties in the months prior to Election Day. In some states, the electors are nominated in primaries, the same way that other candidates are nominated. Other states nominate their electors in party conventions.

The need for the Twelfth Amendment became apparent after the problems that arose in the elections of 1796 and 1800. The Twelfth Amendment was proposed by the Congress on December 9, 1803, and was ratified by the requisite number of state legislatures on June 15, 1804.

Before the Twelfth Amendment, electors could vote for two candidates, though at least one had to be from a state different from that of the elector. A majority of the vote needed to be received in order to win the presidency. If more than one candidate received a majority vote, then the House of Representatives chose the President.

In 1800, after a tie in the Electoral College, the House tied 36 times. That particular election was marked by a battle between the Federalists, and Jefferson’s Democratic-Republicans. Even though Burr was Jefferson’s running mate, Aaron Burr wound up Jefferson’s adversary when the vote went to the House. The lame-duck House controlled by the Federalists threw their support behind Burr, because they did not trust Jefferson’s philosophy of a limited government.

Before the Twelfth Amendment, the choice of the Vice President went to the second place winner of the presidential election. The Vice President, unlike the President, did not require the votes of a majority of electors. If a tie arose, the Vice President was chosen by the Senate, with each Senator casting one vote. Though it was not specified in the Constitution whether the sitting Vice President could cast a tie-breaking vote for Vice President, because the sitting Vice President is President of the Senate and casts the tie-breaking vote, it is assumed that if that situation had arisen, the sitting Vice President would indeed be the deciding vote for his successor. Because the second place winner became Vice President, it was very possible for the President and the Vice President to be from different parties. In fact, that is what happened in the 1796 election. John Adams won that election as the Federalist Party candidate, and Jefferson became the Vice President as a Democratic-Republican candidate. The fear was that by the two men being of different parties, the Vice President may do what he could to impede the ability of the President, or could even launch an effort to remove the President from office so that the Vice President could succeed to the office of the President.

The Twelfth Amendment eliminated the possibility of problems arising between the President and Vice President due to them being from different parties by having the President and Vice President elected as a ticket, thus lessening the Vice President’s motivation for staging a coup.

The Twelfth Amendment also eliminated the “two votes for presidential candidates” method, changing it instead to the electors casting distinct votes for President and Vice President.

The Twelfth Amendment indicates that no elector may vote for both candidates of a presidential ticket if both candidates inhabit the same state as that elector.

The Twelfth Amendment also clarified language to not allow those constitutionally ineligible to be President from being Vice President.

A majority of electoral votes is still required for one to be elected President or Vice President. As in the case before the Twelfth Amendment, when nobody has a majority, the House of Representatives, voting by states and with the same quorum requirements as under the original procedure, chooses a President. The Twelfth Amendment requires the House to choose from the three highest receivers of electoral votes, rather than the top five as was the process under Article II, Section 1, Clause 3.

The Senate chooses the Vice President if no candidate receives a majority of electoral votes. The Twelfth Amendment requires a quorum requirement of two-thirds for balloting.

Terms:

Electors – A qualified voter in an election, a member of the Electoral College of the United States.

Limited Government – A government that functions within the limited authorities granted to it; a governmental system that is restrained by an enumerated list of authorities.

Questions for Discussion:

1.  Why did the States originally appoint electors, rather than the electors being elected directly by the popular vote by the public?

2.  What lessons did the Election of 1800 provide?

3.  Now that the presidential election is determined by party tickets, which ensures

Resources:

Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution – Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).

Larson, Edward J. “A Magnificent Catastrophe: The Tumultuous Election of 1800.” Free Press. (2007)

Madison’s Notes Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp

Philip B. Kurland and Ralph Lerner, The Founder’s Constitution – Volume Five – Amendments I-XII; Indianapolis: Liberty Fund (1987).

McCollough, David. “John Adams.” Simon and Schuster. (2002)