Prior to the Civil War two amendments were proposed to the Constitution, one to clarify the power of federal courts where litigation against a state is concerned and the other to clarify how presidents would be elected following the contested election of 1800. The paucity of Amendments is a testimony to the sagacity of the founders who wrote the Constitution and the of those who crafted the Bill of Rights. For the first seventy and more years of the nation’s history, the original document was found to be workable, though tensions grew during that period over slavery—tensions that would lead to the Civil War, which we will cover in a few weeks.
Federal Courts and Suits Against States
The Eleventh Amendment to the Constitution provides that:
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. [1]
Article II, Section 2 of the Constitution as originally enacted allowed federal courts to hear disputes “between” a state and citizens of another state, or citizens or subjects of a foreign state. [2] At the time, it was anticipated that this provision could create problems, and indeed it did. Almost immediately after the Constitution was ratified, plaintiffs began relying on this Clause in Article III to sue several states in the Supreme Court.
One of these suits was Chisholm v. Georgia 2 U.S. 419 (1793). [3] In this case, Chisholm, a citizen of South Carolina, sued the State of Georgia over payments due for goods Robert Farquhar had supplied Georgia during the American Revolutionary War. The defendant, Georgia, refused to appear in Federal Court, claiming that as a sovereign state, it could not be sued without its consent to the suit. (It might be remembered that one of the reasons for adopting the constitution was to allow for payment of debts incurred in prosecuting the Revolutionary War. This suit was one of many possible suits that might be brought by creditors of the several states as a result of the Revolutionary War and other matters. ) The Supreme Court ruled that Chisholm’s suit against Georgia could proceed in federal court.
There was a dissent in the case, reasoning that under Common Law, that each state is sovereign except as specifically stated in the Constitution or provided for by Congress under one of its enumerated powers. Therefore, in the areas in which the several states are sovereign, they possess the immunity of a sovereign and may not be sued without consent. I quote the dissent because the argument flows from a close reading both of the Constitution and of the history of English Common law that might impact the case. Justice Iredell in his dissent concluded as follows:
I have now, I think, established the following particulars. 1st. That the Constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the legislature appointing courts and prescribing their methods of proceeding. 2nd. That Congress has provided no new law in regard to this case, but expressly referred us to the old. 3rd. That there are no principles of the old law, to which, we must have recourse that in any manner authorize the present suit, either by precedent or by analogy. The consequence of which, in my opinion, clearly is that the suit in question cannot be maintained, nor, of course, the motion made upon it be complied with. [4]
The dissent became law with the passage of the Eleventh Amendment to the Constitution, which was introduced in Congress almost immediately after the case was decided.
The 11th Amendment has been often construed by the federal courts since its enactment. The amendment is central to the division of power between State and Federal Governments and preventing Federal courts from becoming involved in lawsuits between states and private individuals and foreign governments, thus abrogating the rights reserved to the states under the Constitution. There are large areas in which the Federal Government does not need to be involved, and if it were involved Federal Courts would be swamped with litigants attempting to find a more favorable forum than the state courts of the states with which they have a dispute. Nevertheless. the amendment does not by its express language bar all lawsuits against states or their officials arising in federal courts, though the Supreme Court has upheld a broad immunity on the basis of the amendment.
From a communitarian point of view, the 11th Amendment is a sign of the continuing American interest in a system of dual sovereignty in which various layers of government each undertake their own responsibilities with independence. This independence applies to the states within their reserved rights and to the federal government within the scope of their designated powers.
12th Amendment: Electing a President
The 12th Amendment to the Constitution provides as follows:
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 of 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. [5]
Originally, the Constitution provided that the Electoral College would meet and each elector would cast two votes. The person with the largest number votes in excess of a majority became President and the person with the second largest number became Vice President. If no majority elected the President, the House of Representatives would elect the President, who with each state casting one vote. As mentioned before, the Constitutional Convention had assumed, as occurred that George Washington would be elected President, which he unanimously was. John Adams was elected his Vice President. When Washington was elected there were no political parties. In fact, the framers initially desired the President to be the best person for the job, not the leader of a political party, and for a part of this term in office, Adams tried to present himself as above politics. It was a noble, but short lived experiment.
The election of 1800 exposed flaws in the system. [6] In this election, the vying candidates for the Presidency were John Adams, the sitting President, and Thomas Jefferson, the sitting Vice President. The final years of the Adams Presidency revealed the consequences of the fact that the then-current system of electing a President and Vice President allowed for the situation to develop in which the President and Vice President were not of the same party, and potentially the ascension of the Vice President to the Presidency could undo a considered judgement of the voters as to their choice.
By 1800, the nation had developed the institution of political parties, with Adams representing the Federalist and Jefferson representing the Democrat Republican parties. Roughly speaking, the Federalists had an expansive view of the federal government’s power and Democrat Republican a more restrictive position, at least in theory. (Jefferson proved willing to expand federal powers when the opportunity to purchase the Louisiana Territories presented itself.) By the time of the election, Adams and Jefferson were barely on speaking terms, much less colleagues in governance. Each of Adams and Jefferson had “running mates” in the 19800 election, Charles Pinkney of South Carolina as to Adams and Aaron Burr as to Jefferson.
In the end, the election was sent to the House of Representatives where Jefferson was chosen as President and Burr as Vice President. However, the way in which the election was decided exposed flaws in the system. For one thing, the “One State/One Vote” system in the House of Representatives allowed for smaller states with a small population to have the same vote as larger states. Inside the state delegations, votes had to be taken as to how their vote was to be cast, and in the event of a tie vote, the vote was not to be counted. In the end, one representative’s decision could determine the entire national election.
It was against this background that the 12th Amendment was proposed. Under the Amendment as adopted, electors cast two votes (one of them for a non-native of the elector’s home state). However, under the amendment, one of the votes had to be for a candidate for President while the other for a candidate for Vice President. This amendment, therefore, ensures that the situation of the election of 1800 cannot occur again.
1824 and 1877 Elections
Problems surrounding the election of the President again surfaced in the election of 1824. In this election, Andrew Jackson received the most votes but not a majority. The election was then decided by the Congress, who chose John Quincy Adams as President. It was alleged that a deal was made between Henry Clay and Adams to secure the election for Adams. The bad feelings created, and the wide-spread feelings of fraud and denial of the popular will, resulted in Jackson’s election in the 1828 election.
In 1876, there was another contested election between Rutherford B. Hayes and Samuel Tilden. Tilden won the popular vote and the electoral count. However, supporters of Hayes contested the results in three states in which there were certificates submitted for both candidates. While the Constitution, as indicated above, requires the House and Senate to formally count the certificates of election in joint session, it is silent on what Congress should do to resolve disputes. In this case, Congress established a Federal Electoral Commission to investigate the disputed ballots. The bipartisan commission, which included Representatives, Senators, and Supreme Court Justices, voted along party lines to award the contested ballots to Hayes—securing the presidency for him by a single electoral vote. [7]
2020 Election
In the case of the 2020 election the need for a proper understanding of the process for electing a president were again revealed. In the case of this election, by the time the votes were counted on January 6, 2021, there were allegations of fraud in the election. One aspect of the contention was the provision of the Twelfth Amendment that provides as follows:
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. [8]
At the time of the counting of the 2020 electoral votes, there were several states in which litigation was pending concerning the validity of the vote. President Trump felt that the votes of disputed states should be determined by the Vice President. The legal advisors of the Vice President disagreed, feeling that the Vice President, as the President of the Senate, had only ministerial responsibility to declare the vote of each state. In this case, it is likely that the legal advisors of the Vice President were correct, The wording of the Constitution does not appear to give any power to the Vice President to make legal determinations. Moreover, at the time the Constitution was enacted, the States would have resisted any such claim as an imposition on their powers to determine their own electors.
In my view, the 2020 Election revealed the need for a set process to resolve contested election suits. Given the complexity of the cases, there is simply not enough time between an election day and the day Congress counts the votes for a normal judicial process to take place. Some group needs to be authorized to hear relevant evidence and make determinations of fact related to elections in a timely way where there are credible allegations of fraud sufficient to have tipped the election one way or another.
Conclusion
This week, I decided to deal with the two amendments to the Constitution enacted after the Bill of Rights and before the important amendments that resulted from the Civil War. It is a welcome relief from the speculations of Kant and Hegel, as important as they are. There was and is something comforting about a return to the law and Constitution from the speculations of philosophers!
Copyright, 2021, G. Christopher Scruggs, All Rights Reserved
[1] Constitution of the United States of America, Amendment 11.
[2] Constitution of the United States of America, Article III, Section 2.
[3] Several other suits against other states were pending at the time Chisholm was decided in 1793, including Vassall v. Massachusetts, in which a British subject (William Vassall) sued Massachusetts for violating the Treaty of Peace by confiscating his property.
[4] Chisholm v. Georgia 2 U.S. 419 (1793), Justice Iredell dissenting.
[5] Constitution of the United States of America, Amendment 12.
[6] I am indebted to the work of the Interactive Constitution at https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xii/interps/171 (Accessed October 7, 2021) for much of the analysis of this blog.
[7] “The Electoral College and Indecisive Elections” History, Art and Archives, nited States House of Representatives, at https://history.house.gov/Institution/Origins-Development/Electoral-College/ (downloaded October 11, 2021).
[8] Constitution of the United States of America, Amendment 12. This provision superseded the original provisions of Artice II, Section 1 of the Constitution.