Friday Constitutional 15 – 11th And 12th Amendments


Happy Friday and welcome to the 15th installment in the repost of the Friday Constitutional series. Does this feel like a 30 year mortgage to anyone else? Anyway this series is designed to take a look at the United States Constitution and discuss each part from a layman’s point of view. If you missed in of the earlier installments, you can find them at the links below:

Friday Constitutional 1 – Preamble, Article One, Sections 1 And 2
Friday Constitutional 2 – Article One, Sections 3 And 4
Friday Constitutional 3 – Article One, Sections 5 And 6
Friday Constitutional 4 – Article One, Sections 7 And 8
Friday Constitutional 5 – Article One, Sections 9 And 10
Friday Constitutional 6 – Article Two, Section 1 (Part One)
Friday Constitutional 7 – Article Two, Sections 1 (Part Two), 2, 3, And 4
Friday Constitutional 8 – Article Three, The Judicial Branch
Friday Constitutional 9 – Article Four, Relationships Between The States
Friday Constitutional 10 – Articles 5, 6 And 7
Friday Constitutional 11 – 1st And 2nd Amendments
Friday Constitutional 12 – 3rd And 4th Amendments
Friday Constitutional 13 – 5th And 6th Amendments
Friday Constitutional 14 – 7th, 8th, 9th And 10th Amendments

We have completed the Articles and the Bill of Rights and are now working on the last 16 Amendments of the Constitution. Today we will start with Amendment 11.

Amendment Eleven:

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.

By itself this Amendment is a little impenetrable. It was passed as a clarification of Article 3, Section 2 of the Constitution, specifically Clause One which reads:

Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State; between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects

Basically what this boils down to is the concept of Sovereign Immunity. Basically you can not sue the Federal Government unless it agrees to let the case be heard. Yes, you read that right. The Government reserves the right to prevent you from suing it, as a citizen, except under very specific circumstances. The exceptions are detailed in the Federal Tort Claims Act and the Tucker Act. These acts allow a citizen to sue the Government if there is a claim resulting from either the actions of a federal employee or if there is a case involving contracts with the Federal Government.

Now, Amendment 11 extends this same sovereign immunity to the States in terms of the Federal Courts. What that means is that you as a citizen can not use the Federal Courts to sue another State Government, without the consent of the State. There is no Constitutional prohibition about suing your own State, but the Supreme Court has consistently ruled that this is part of the basic structure of the Constitution and so did not need to be detailed.

I believe the reason for this is to prevent citizens from tying up their government with suits that arise from the normal operation of the government. As a practical matter it forces citizens that don’t like the way things are being run to replace their government officials instead of just suing the government.

Now, this does not apply to crimes committed by members of the government or the government itself. There is what is called a Stripping Doctrine that says when a government employee or official commits a crime, they have lost their immunity. So, in the case of torture or War Crimes there can be no reasonable sovereign immunity defense.

Amendment Twelve:

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, 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.

In 1804 Amendment Twelve was proposed from the States, to change the way that the President was elected. Originally the Electors of the Electoral College had two votes that they could cast for President, but they could not vote for someone from their State. In 1800 there was a situation where there were multiple ballots and it was clear that this system had major flaws.

This is also the Amendment that changed the way that the Vice President was elected. Previously it was not only conceivable but likely that a President would have a defeated opponent as his Vice President. While the Framers liked checks and balances in their government, they were not really in favor of outright dysfunction that this could cause. The Constitution was changed to make it easier to elect the President and Vice President as a team.

This is one of the few Amendments that came from the States to the Congress, instead of the other way around that is most common. It was further amended by the 20th Amendment in 1933, but we will talk about that when we get there.

I think that is enough for this week. Any thoughts on Sovereign Immunity or the way we elect the president, citizens?

The floor is yours.

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