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Editor’s note: This is the 11th part of a series.

Following the Bill of Rights — the first 10 Amendments to the United States Constitution — come the remaining 17 Amendments. It is worth noting — scant as they are — that from 1791, when the Tenth Amendment was adopted, until today (a span of 224 years), while less than a score of amendments have been added, a staggering 11,539 have been proposed. The first to follow the Bill of Rights, which will, in part, be the subject of this column, was adopted in 1795. The last (at least for now as there will one day likely be further amendments) became law in 1992.

The longest span between amendments was between adoption of the 12th and 13th amendments (a period of 61 years; 1804 to 1865, the latter year may ring familiar to you history buffs) and there has been one occasion (adoption of the 16th and 17th amendments in 1913) where two amendments were adopted in the same year.

11th AMENDMENT

Whereas the majority of the amendments are like Victoria’s Secret lingerie — so scant as to only give only the merest suggestion of their composition — the 12th is a big burly beast running 400 words; by comparison the 8th Amendment, running only 16 words, would barely fill a tea cup.

But let’s start at the beginning with the 11th Amendment which provides, “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.”

This hardly seems something worth getting your hair in a ruff about. But it was/is important as a reaction against what many scholars view as the first Supreme Court decision of any great significance, the 1793 case of Chisholm v. Georgia, which centered on whether citizens of one state (or for that matter, a foreign nation) had a right to sue another state in federal court. Article III, Section 2 suggested that they did and in Chisholm, the Supreme Court agreed. The decision, however, unsettled many who felt that such broad use of the federal court system to bring lawsuits against the various state governments would undermine the idea of federalism, shifting too much power from the states to the national government.

Within a year of the Chisholm decision, Congress passed the Eleventh Amendment, which effectively trumped the court’s decision by explicitly removing from federal court jurisdiction all cases in which the citizen of one state sought to sue another state. A hot issue in its day, the amendment was quickly ratified by the states and confirmed the means by which the will of the people could effectively overrule the nation’s highest court.

12th AMENDMENT

The 12th Amendment followed nine years later and is unusual — if not wholly unique among the various amendments — in its verbosity. Whereas the majority of the amendments are like Victoria’s Secret lingerie — so scant as to only give only the merest suggestion of their composition — the 12th is a big burly beast running 400 words; by comparison the 8th Amendment, running only 16 words, would barely fill a tea cup. The longest amendment, running 435 words, including section headings, is, however the 14th which, for reasons that will become obvious in the next part of this series — not the least of which was the divide it hoped to bridge and the framework for the future it hoped to construct — required considerable heft.

Rather than laying out the 12th in all its lumbering glory, let me summarize.

The presidential election of 1800 — the fourth presidential election following the founding of the nation — fell to pieces in the Electoral College, revealing serious flaws in the Constitution’s original design for such elections.

The 1800 election, in which Thomas Jefferson ultimately bested the incumbent, John Adams’ bid for a second term, fostered a disturbing curiosity. Before all the beans were counted (and, in a nod to Adams, presumably Boston baked beans), Jefferson managed to finish in an exact Electoral College tie with Aaron Burr, who was supposed to be his own vice-presidential running mate. This, as you may divine, created quite the conundrum.

The problem, not sufficiently ferreted out till then, was that the Constitution, as originally designed called for each member of the Electoral College to cast two votes, one for each of his (and, yes, they were all “hes” in that era) top two candidates for the presidency. When the ballots were tallied, whoever finished first would become president, and whoever finished second would become vice president.

And yet …

This system didn’t account for the development of political parties and partisan presidential/vice-presidential tickets.

In 1800, Jefferson’s supporters in the Electoral College each voted for Jefferson and his “running mate,” Burr. As a historical aside, yes, this was the same Aaron Burr who, when while sitting as the nation’s third vice president, slew Alexander Hamilton (a founding father and the nation’s first Secretary of the Treasury) in a duel on the shores of Hudson River in Weehawken, New Jersey. But that was later, when Jefferson’s second term was assured.

In 1800, when Jefferson and Burr finished in a tie, it meant that the election was thrown into the House of Representatives, which, had it elected to do so, could have voted for anyone. In the end, and it a bit of historical irony, Jefferson’s bitter political rival, Hamilton, prevailed upon members of his own party to defer to the will of the people and allow Jefferson to become president. It was rumored at the time that Burr, who disliked Jefferson only slightly less than he liked Hamilton, was rumored to be working to steal the presidency from under Jefferson’s nose.

In order to prevent this bit of mischief from happening again, the 12th Amendment was sponsored and adopted. What it did, and does, is split the balloting for the presidency from that for the vice-presidency. Simply, and reasonably, as provided by the 12th Amendment, Electors now cast separate ballots for president and vice president.

In the next part of this series, slavery rears its ugly head and the nation scrambles to put the fractured pieces back together following the blood-letting of the Civil War. We will start, then, with the 13th which put an end to the stain of involuntary servitude.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.


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