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Constitution Class Handout
Instructor: Douglas V. Gibbs
Lesson 17
Amendments 11 and 12
Limiting the Courts, Amendment 11

The Judicial Branch
was added almost as an afterthought. 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.
As you may recall, John Jay,
the first Chief Justice of the United States Supreme Court, resigned his
position in 1795, disappointed in how few powers the federal courts had.  When approached later by President John Adams
to return to the United States Supreme Court as the high court’s Chief Justice,
Jay turned Adams down.  He said the Court
lacked “the energy, weight, and dignity which are essential to its
affording due support to the national government.”  He also did not wish to serve under Thomas
Jefferson, the victor in the 1800 Presidential Election, who was an advocate of
limited government, and a judicial branch that existed as the weakest of the
three branches of government. 
While John Jay was Chief
Justice, among the influences of his decision that the court was too weak to
promote a strong, centralized national government, was 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 and the States as
being more powerful parts of government than the judiciary.


– Changes made to an existing constitution.
– The branch of the United States Government responsible for the
administration of justice; a central judiciary that is limited to federal
authorities, and separated from the will of the central leadership.
– The unconstitutional authority of the federal courts to review law, interpret
the Constitution regarding laws, and then determine the constitutionality of
– Any political organization that is put in place to
maintain control of a nation; a strong central government that does not
recognize the individualism or local authorities of the smaller parts, such as
states, of the nation.
of Powers
– A division of governmental authority into three
branches: legislative, executive, and judicial; division of powers between the
States and federal government.
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?
v. Georgia, 2 Dall. 419 (1793), Cornell College – Politics:
Draft of the Kentucky Resolutions – October 1798, Avalon
Project, Yale University: http://avalon.law.yale.edu/18th_century/jeffken.asp
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).
Philip B.
Kurland and Ralph Lerner, The Founder’s
Constitution –
Volume Five – Amendments I-XII; Indianapolis: Liberty Fund (1987).
Resolution of 1798, Constitution.org:
Procedures for Electing President Changed, Amendment 12
 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 12th 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 the 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 from 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 12th
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 12th Amendment,
electors could vote for two candidates, though at least one had to be from a State
different from that of the elector (as a protection against a larger State
dominating the federal government).  A
majority of the vote needed to be received in order to win the presidency.  If no candidate received a majority vote,
then the House of Representatives chose the President.
In 1800, after a tie in the Electoral
, 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
The term Electoral College
did not appear until the early 1800s, and did not appear in legislation until
1845.  The concept was designed to act in
a manner similar to Congress, where a portion of the election was connected to
the population-based premise that was also used by the House of
Representatives, and another portion of the Electoral College would be based on
the State appointment premise used by the U.S. Senate.
In Federalist No. 39,
James Madison explained that the Constitution was designed to be a mixture of State-based
and population-based government.
In Federalist No. 10,
James Madison argued against “an interested and overbearing majority
and the “mischiefs of faction” in an electoral system.  His definition of “faction” in relation to
elections was “a number of citizens whether amounting to a majority or
minority of the whole, who are united and actuated by some common impulse of
passion, or of interest, adverse to the rights of other citizens, or to the
permanent and aggregate interests of the community.”  In a republic it was necessary, according to
Madison, to vary the distribution of powers, including those powers held by the
members of the populace.  Only a thorough
division of power throughout the American System would protect the United
States from the excesses of democracy, and countervail against factions.  Madison further explained that the greater
the population and expanse of the Republic, the more difficulty factions would
face in organizing due to such issues as sectionalism.
Prior to the 12th 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 12th 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 12th Amendment also
eliminated the “two votes for presidential candidates” method, changing it
instead to the electors casting distinct votes for President and Vice
The 12th Amendment indicates
that no elector may vote for both candidates of a presidential ticket if both
candidates inhabit the same State as that elector, a provision consistent with the
Framer’s original language against collusion.
The 12th 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 12th 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 12th Amendment
requires the House of Representatives 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 12th
Amendment requires a quorum of two-thirds for balloting.
Conspire together.
– A body of electors chosen by the voters in each
State to elect the President and Vice President of the United States.
– A government that acts within the limitations
granted to it; a governmental system that is restrained by an enumerated list
of authorities; a limited government is the essence of liberty.
Minimum number of members of an assembly necessary to conduct the business of
that group.
Loyalty to the interests of one’s own region or section of the country, rather
than to the country as a whole; loyalty to a political agenda or ideology
rather than to the country as a whole.
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
McCollough, John Adams; New York:
Simon and Schuster.
Edward J.
Larson, A Magnificent Catastrophe: The
Tumultuous Election
of 1800; New
York: Free Press (2007)
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).
Philip B.
Kurland and Ralph Lerner, The Founder’s
Constitution –
Volume Five – Amendments I-XII; Indianapolis: Liberty Fund (1987).
Copyright 2015 Douglas V. Gibbs

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