Wednesday, March 13, 2019

Temecula Constitution Class Final

Temecula Constitution Class, Wednesdays 6:00 pm
27120 Jefferson Avenue, Temecula, CA
Riverside County Republican Party Headquarters

Constitution Class Handout
Instructor: Douglas V. Gibbs
Lesson 21
Final Amendments
Amendment 22: Presidential Term Limit
The 22nd Amendment was passed in 1951. It was designed to ensure no president could seek a third term. Though the Constitution did not limit the number of terms a president could serve prior to this amendment, many consider the fact that George Washington chose not to seek a third term as evidence the Founding Fathers recognized two terms should be the expected standard.
George Washington's popularity would have easily enabled him to be President for the rest of his life, and many even tried to encourage him to be king. However, Washington saw himself as no different than everyone else, and recognized the presidency as a privilege to serve. He felt that more than two terms opened the opportunity for abuse of power by an Executive, which would hinge on the idea of a monarchy.
Following George Washington, James Madison and James Monroe also adhered to the two-term principle. No Presidents afterward sought a third term, with the exceptions of Ulysses S. Grant, Theodore Roosevelt, and Franklin Delano Roosevelt. No President achieved a third term until FDR.
Franklin D. Roosevelt in 1940 became the only President to be elected to a third term. World War II has often been cited as the reason. The public was not fond of the idea of a change in Commander in Chief during such a crucial event in history. In 1944, while World War II continued to rage, Roosevelt won a fourth term. He died before he could complete it.
The 22nd Amendment was proposed and ratified during the Truman presidency.
The failure of the Founding Fathers to establish a term limit on the President in the early articles of the United States Constitution aligns with a prevailing opinion the Framers held that term limits were the responsibility of the voter. Their belief hinged on a reliance on the people and the Electoral College, and that electorally a third term would be prevented, unless a third term was absolutely necessary.
Under the 22nd Amendment, the only President who would have been eligible to serve more than two terms would be Lyndon B. Johnson. LBJ was the Vice President of the United States at the time of the assassination of President John F. Kennedy, and after serving the remainder of JFK's term, Johnson had only been President for fourteen months. The 22nd Amendment provides that "No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once."
Questions for Discussion:
1. Why do you think the Founding Fathers believed two terms were adequate for the President?
2. What is the cited reason for Franklin Delano Roosevelt's continued re-election as President?
3. How could an unlimited allowance of terms for President be dangerous?
Andrew M. Allison, Jay A. Perry, and W. Cleon Skousen, The Real
George Washington; New York: National Center for Constitutional Studies (2010)
Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787; Boston: Atlantic
Monthly Press (1966)
Donald Porter Geddes (ed.), Franklin Delano Roosevelt - A Memorial;
New York: Pitman Publishing Corporation (1945)
James Srodes, On Dupont Circle: Franklin and Eleanor Roosevelt and
the Progressives Who Shaped Our World; Berkeley: CounterPoint Press (2012)
James Thomas Flexner, Washington: The Indispensible Man; Boston:
Back Bay Books (1969)
John Morton Blum, The Progressive Presidents: Theodore Roosevelt,
Woodrow Wilson, Franklin D. Roosevelt, Lyndon B. Johnson; New York: W.W. Norton & Co. (1982)
Willard Sterne Randall, George Washington: A Life; New York: Henry
Hold & Co. (1997)
Amendment 23: Washington, D.C., Receives Electoral Votes
The rallying cry during the American Revolution, as we have been taught, was "No taxation without representation." Yet, despite that famous call for revolution, after the United States became a nation, there were those who were taxed without representation in the United States Government. The most famous case was Washington, D.C. The movement for representation for Washington, D.C., led to the proposal, and ratification, of the 23rd Amendment.
Washington, D.C., is a ten mile by ten mile section of land donated by Maryland and Virginia to serve as the seat of government. The land was easy for those two States to let go of because it was undesirable. While it is popular to say that Washington, D.C., sits on swampland, it is actually a tidal plain, land that was a mix of thickly wooded slopes, bluffs and hills, crop land, and several major waterways. The location was chosen by George Washington because of its central location between the northern and southern States as a compromise between Alexander Hamilton and northern States who wanted the new federal government to assume Revolutionary War debts, and Thomas Jefferson and southern States who wanted the capital placed in a location friendly to slave-holding agricultural interests.
The District was not supposed to be a city in the sense that we see it today. The District of Columbia was not supposed to have a population, for the creation of the district was for the sole purpose of being the seat of the United States Government. The Congress was given full power over the functioning of the city, and the inhabitants were supposed to only be the temporary visitors of government officials, or employees. The Founding Fathers envisioned Washington, D.C., to be the seat of the federal government, and a vibrant commercial center.
As time passed, Washington, D.C., attracted residents, eager to partake in the opportunities offered in the way of government jobs. The incoming population largely consisted of Free Blacks prior to the beginning of the American Civil War, and after the abolition of slavery in the District in 1850. After the War Between the States, the growth of Washington, D.C.'s population exploded.
John Adams, the second President of the United States, did not like Washington, D.C. He viewed it as hardly being a city at all, and nothing more than a clump of dirty buildings, arranged around "unpaved, muddy cesspools of winter, waiting for summer to transform them into mosquito-infested swamps."
As the population of Washington, D.C., grew during the twentieth century, it became glaringly apparent to the residents that their taxation did not accompany representation. At one point, "Taxation without representation" became such a rallying cry that Washington, D.C., license plates even held the phrase.
After the cries for representation reached a crescendo, the Twenty-Third Amendment was proposed and ratified, allowing the citizens in Washington, D.C., to vote for Electors for President and Vice President. The amendment was ratified in 1961.
Since Washington, D.C., is not a State, the District is still unable to send voting Representatives or Senators to Congress. However, Washington, D.C., does have delegates in Congress that act as observers.
The amendment restricts the district to the number of Electors of the least populous state, irrespective of its own population. That number is currently three.
Seat of Government - The location of the government for a political entity. The seat of government is usually located in the capital.
Commercial Center - A central location of commercial activity; an environment for commerce, or business activity.
War Between the States - The Civil War was fought from 1861 to 1865 after Seven Southern slave States seceded from the United States, forming the Confederate States of America. The "Confederacy" grew to include eleven States. The war was fought between the States that did not declare secession, known as the "Union" or the "North", and the Confederate States. The war found its origin in the concept of State's Rights, but became largely regarding the issue of slavery after President Abraham Lincoln delivered the Emancipation Proclamation. Over 600,000 Union and Confederate soldiers died, and much of the South's infrastructure was destroyed. After the War, Amendments 13, 14, and 15 were proposed and ratified to abolish slavery in the United States, and to begin the process of protecting the civil rights of the freed slaves.
Questions for Discussion:
1. Why was the location of Washington DC chosen to be at a central position between the northern and southern States?
2. Why was Washington DC only supposed to be the seat of government?
3. What was the encouragement for people to take up residency in Washington DC?
4. How did the Twenty-Third Amendment satisfy the demand by the districts residents that they be afforded representation?
5. How is Washington DC's representation limited?
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)
Larry Schweikart and Michael Allen, A Patriot's History of the United
States; New York: Sentinel (2004)
Smithsonian, Washington, D.C., History and Heritage, (2007)
Amendment 24: Poll Taxes and Open Primaries
The 24th Amendment to the U.S. Constitution ratified in 1964 made it unconstitutional for a State to use payment of taxes as a requirement to vote in national elections. Few blacks could vote in States using poll taxes as a requirement to vote because they had little money. The poll tax to vote in these states was $1.50. After the ratification of the 24th Amendment a number of districts continued the practice of requiring a poll tax in order to vote. A woman named Evelyn T. Butts decided to take the poll tax issue to court. In October 1965, the U.S. Supreme Court agreed to hear Evelyn T. Butts' appeal. In 1966 the Supreme Court of the United States declared poll taxes unconstitutional in accordance with the 24th Amendment.
A poll tax is a uniformed tax levied on every adult in the community, called a capitation tax by the Founding Fathers. Poll taxes have their roots in ancient tax systems and have been criticized as an unfair burden on the poor. Historically, in the U.S., poll taxes were enacted in the South as a prerequisite for voting, disfranchising many African-Americans and poor whites.
One argument regarding the article claims the spirit of the 24th Amendment also disallows closed primaries by leaving out of the process independent voters. As a result, a number of States have been passing laws enabling their States to make their election primaries open to all voters. In an open primary you can vote for anyone you want regardless of party affiliation during the primary election. Some proponents of open primaries contend closed primaries are unconstitutional - a violation of the 24th Amendment.
General discontent with the two-party system has emerged in American society. A party system, however, is a natural result of human nature. Every issue is divided by those who support the issue, and those that oppose it. As human beings, we tend to gravitate toward those who think like ourselves (birds of a feather flock together), and parties ultimately form out of that natural tendency to organize. Once the groups form, they become organizations, appoint leadership positions, and a political party is born. Political parties are the natural result, fueled by our own human nature, of this kind of political organization.
In a party system such as ours, to allow voters to cross party-lines in the primaries can be dangerous because it opens up the potential for unethical voting techniques that are designed to injure the other party. Open primaries allow members of opposing parties to vote in their opponent's primary in the hopes of affecting the outcome, and putting the weaker candidate on the ballot so that their own party has a better chance to win. If both parties of a two party system is doing such, the result will always be the two weakest candidates facing off against each other. Open primaries nullify the whole point of the primary elections, and often result in the best candidates not being elected.
Not all States have primaries, and the rules for choosing candidates for a particular party varies from State to State - as it should. Some States have caucuses, which are meetings of the members of a legislative body who are members of a particular political party, to select candidates. The choosing of the delegates varies from State to State.
States are given the authority to make their own election rules, and maintain the elections in their State, according to Article I, Section 4 of the United States Constitution, and reinforced by Article II. This is why the Florida-Chad controversy in 2000 should have never resulted in the federal courts, or even the State courts, getting involved. According to the Constitution, the decision on what to do regarding the controversy in Florida in 2000 should have remained with the State Legislature.
Some supporters of open primaries contend that closed primaries are in violation of the 24th Amendment because limiting who can vote in a primary by party membership is a poll tax as per implied law.
By strict definition, a poll tax is a tax, which would be a monetary amount expected as a prerequisite for voting. Closed primaries do not impose a monetary tax, and therefore are not in violation of the 24th Amendment, based on the language of the amendment. One may suggest the 24th Amendment implies that no action can be taken to close any election to any person - but primaries are simply party oriented. People who couldn't vote in the primary would have been able to by joining a political party, and regardless of the ability to vote in the primaries, will be able to vote in the general election, and therefore are not being declined the opportunity to participate in the electoral process.
Capitation - Head tax; a direct tax on each person.
Caucuses - A meeting of the members of a legislative body who are members of a particular political party, to select candidates or decide policy.
Closed Primary - A primary election in which only party members may select candidates for a general election.
Implied Law - Legal concept serving as a legal substitute for authorities expressly granted by the United States Constitution; an agreement created by actions of the parties involved, but it is not written or spoken, because they are assumed to be logical extensions or implications of the other powers delegated in the Constitution.
Open Primary - A primary election in which voters, regardless of party may select candidates from any party for a general election.
Poll Tax - A tax levied on people rather than on property, often as a requirement for voting.
Primary Election - An election in which party members or voters select candidates for a general election.
Tax - A compulsory monetary contribution to the revenue of an organized political community, levied by the government of that political entity.
Two-Party System - A form of political system where two major political parties dominate voting in nearly all elections, at every level; a political system consisting chiefly of two major parties, more or less equal in strength.
Questions for Discussion:
1. How did poll taxes disallow some people from being able to vote?
2. What is the difference between open primaries, and closed primaries?
3. Why is the existence of a two-party system inevitable in a political system like ours?
4. Who prescribes the times and manner of elections?
5. How was the "hanging chad" controversy mishandled?
6. What are the advantages and disadvantages of open primaries? Closed primaries?
Congressional and Presidential Primaries: Open, Closed, Semi-Closed,
and "Top Two", Fair Vote:
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)
Tom Spencer, American-style primaries would breathe life into
European elections (2004):
Ware, Alan. The American Direct Primary: Party Institutionalization and
Transformation in the North (2002), the invention of primaries around 1900:
Amendment 25: Presidential Disability and Succession
The 25th Amendment, Section 1, reads, "In case of the removal of the President from office or of his death or resignation, the Vice President shall become President."
Section 1 of the 25th Amendment is clear, concise, and to the point. After nearly two centuries of questions regarding if the Vice President actually became President in the case of the removal, death or resignation of the President, or was to merely act as President if such an instance would arise, the 25th Amendment sought to clarify without question the confusion that haunted Article II, Section 1, Clause 6, and the 12th Amendment.
When President William Henry Harrison became the first U.S. President to die in office in 1841, Representative John Williams had previously suggested that the Vice President should become Acting President upon the death of the President. Vice President John Tyler concurred, asserting that he would need to succeed to the office of President, as opposed to only obtaining its powers and duties. Though Tyler took the oath of President (precedent for full succession was established, becoming known as the "Tyler Precedent"), nothing was done to amend the Constitution regarding the procedure.
When President Wilson suffered a stroke in 1919, no one officially assumed the Presidential powers and duties, and the office of President essentially remained unmanned during the remainder of Wilson's second term.
It was clear that a set of guidelines needed to be established.
In 1963, a proposal enabling Congress to enact legislation establishing a line of succession by Senator Kenneth Keating of New York based upon a recommendation by the American Bar Association in 1960 surfaced, but it never gained enough support.
On January 6, 1965, Senator Birch Bayh proposed in the Senate, and Representative Emanuel Celler proposed in the House of Representatives, what would become the 25th Amendment. Their proposal provided a way to not only fill a vacancy in the Office of the President by the Vice President, but also how to fill the Office of the Vice President before the next presidential election.
The line of succession the 25th Amendment establishes is as follows:
If the President is removed from office, dies, or resigns, the Vice President immediately becomes President. Prior to the 25th Amendment there was no provision for Vice Presidential vacancies. Under Section Two of the 25th Amendment the President nominates a successor who becomes Vice President if confirmed by a majority vote of both Houses of Congress, which occurred when President Richard Nixon appointed Gerald Ford to be his Vice President, after Spiro Agnew resigned as Vice President of the United States.
In Section 3 of the amendment, if the President provides a written declaration to the President Pro Tempore of the Senate and the Speaker of the House of Representatives that "he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President."
Section 4, which has never been invoked, enables the Vice President, together with a majority of either the leading officers of the Executive Department, or of "such other body as Congress may by law provide", to declare the President disabled by submitting a written declaration to the President Pro Tempore and the Speaker of the House of Representatives. If the President is unable to discharge his duties as indicated, the Vice President would become Acting President.
If the President's incapacitation prevents him from discharging the duties of his office and he himself does not provide a written declaration, the President may resume exercising the Presidential duties by sending a written declaration to the President Pro Tempore and the Speaker of the House. If the Vice President and the officers of the Cabinet believe the President's condition is preventing him from discharging the duties of President, they may within four days of the President's declaration submit another declaration that the President is incapacitated. If not in session, the Congress must, in this instance, assemble within 48 hours. Within 21 days of assembling or of receiving the second declaration by the Vice President and the Cabinet, a two-thirds vote of each House of Congress is required to affirm the President as unfit. If such actions are satisfied the Vice President would continue to be Acting President. However, if the Congress votes in favor of the President, or if the Congress makes no decision within the 21 days allotted, then the President would resume discharging all of the powers and duties of his office.
Questions for Discussion:
1. Why do you think there was no line of succession clearly defined prior to the 25th Amendment?
2. Why do you believe nobody took on presidential powers after President Wilson's stroke in 1919?
3. How does a President's incapacitation affect the overall functioning of government?
4. Would a President's incapacitation influence government functioning differently in a time of war?
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)
Understanding the 25th Amendment,,
United States Constitution and Citizenship Day: 25th Amendment,
Amendment 26: Voting Age
The 26th Amendment establishes the voting age at the age of 18, rather than 21 as it was previously. The amendment was proposed in 1971, in an attempt to respond to student activism against the Vietnam War. Originally, President Nixon had signed a law making the voting age 18, but a number of States challenged the law, and under pressure the amendment was proposed and ratified.
The slogan, "Old enough to fight, old enough to vote," which surfaced as far back as World War II, had finally become a worn-out enough slogan that the majority began to support it. Arguments of various viewpoints regarding the wisdom of this amendment continue to this day, but one thing is clear, the original argument of "Old enough to fight, old enough to vote," was a ruse.
The Democrat Party was in trouble, and desperate for votes. President Nixon was wildly popular. The 1972 election was coming, and the Democrats needed to find a way to gain more votes, and to gain them fast.
The college-aged population was protesting against the war. The younger generation, molded by left-leaning public school teachers, and leftist college professors, were ripe for the picking, but most of them were too young to vote. The Democrats knew that if the protesting students could vote, they would vote for the Democrat candidate for president, and give the Democrats a fighting chance to gain seats in Congress. The push for the 26th Amendment, though in part about "old enough to fight, old enough to vote," was in reality an attempt to gain more votes for the Democrats. However, despite the ratification of the amendment in time for the election allowing people as low as the age of eighteen to vote, Richard Nixon still won the election in 1972 by a landslide.
Questions for Discussion:
1. How has the inclusion of voters over 18 and under 21 influenced politics?
2. Was the "old enough to fight, old enough to vote" campaign a new campaign?
3. Did he political strategy being the 26th Amendment succeed?
4. Why do you suppose the Democrats targeted the vote of the younger generation?
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)
Larry Schweikart and Michael Allen, A Patriot's History of the United
States; New York: Sentinel (2004)
Old Enough to Fight, Old Enough to Vote, Nixon Foundation,
Repeal the 26th Amendment! by Anne Coulter, Townhall,
Youth Vote: Dems' Secret Weapon 40 Years in the Making? by Carl M.
Cannon, Real Clear Politics,
Amendment 27: Congressional Salaries
The 27th Amendment prohibits any law that increases or decreases the salary of members of the Congress from taking effect until the start of the next set of terms of office for Representatives. Ratified in 1992, the proposal remained in waiting for 203 years after its initial submission in 1789.
The reason for ratification was anger over a Congressional pay raise. Wyoming became the last State to ratify the amendment. Four States (California, Rhode Island, Hawaii, and Washington) ratified the amendment after the required number of States was met.
A battle over whether or not cost of living increases are affected by this amendment continues to this day. Currently, cost of living increases take effect immediately, without a vote.
Questions for Discussion:
1. How does the 27th Amendment protect against corruption?
2. Why do you think it took so long to ratify the amendment?
3. Is Congress voting itself raises still a concern among voters?
Amendment XXVII: Congressional Compensation, United States
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)
Members of Congress Haven't Had a Raise in Years, by Jesse Rifkin,
USA Today,
Notes on the 27th Amendment, Constitution of the United States
"Charters of Freedom",
Understanding the 27th Amendment,,
Copyright 2015 Douglas V. Gibbs

Tuesday, March 12, 2019

Corona Constitution Class: Amendments 11 and 12

Tuesday Night, 6:00 pm to 7:00 pm
CARSTAR/AllStar Collision
522 Railroad Street
Corona, CA

Constitution Class Handout
Instructor: Douglas V. Gibbs

Lesson 17

Amendments 11 and 12

Further 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. Constitution.

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.


Constitutional Amendment - Changes made to an existing constitution.

Judicial Branch - 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.

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

National Government - 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.

Separation of Powers - A division of governmental authority into three branches: legislative, executive, and judicial; division of powers between the States and federal government.

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?


Chisholm v. Georgia, 2 Dall. 419 (1793), Cornell College - Politics:
Jefferson’s Draft of the Kentucky Resolutions - October 1798, Avalon
Project, Yale University:
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).
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
Virginia Resolution of 1798,

Electoral 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 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.

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 President.

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.


Collusion - Conspire together.

Electoral College - A body of electors chosen by the voters in each State to elect the President and Vice President of the United States.

Limited Government - 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.

Quorum - Minimum number of members of an assembly necessary to conduct the business of that group.

Sectionalism - 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.

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


David McCollough, John Adams; New York: Simon and Schuster.
Edward J. Larson, A Magnificent Catastrophe: The Tumultuous Election
of 1800; New York: Free Press (2007)
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).
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).

Copyright 2015 Douglas V. Gibbs