I would like to say this would have been the first Amendment outside of the Bill of Rights if Georgia had just paid its debt to the Farquhar estate, but there were other pending cases with similar issues, so it isn't really that simple. It never is.
You could on a very elementary level say that this amendment is needed and inevitable because the previous process takes two rivals and puts them in a partnership, which tends not to go smoothly, but that's an oversimplification too.
XII
"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 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."
No longer will the vice president be the first runner up for president. It is not quite to the modern process of a president and vice-president running together either, but it's a change.
One of the inspirations for this amendment was the election of 1800, where there was a tie in the presidential race, settled by the states with the higher populations, which made the deciders those states with slaves, even though they were only counted as 3/5 per person. It doesn't only sound ugly now; it bothered people then.
One of the concerns, which you can see in the first paragraph, is that people will try and have a region exert undue influence, which at the time was guarded against by the stipulation "shall not be an inhabitant of the same state with themselves". There have been other attempts to manipulate votes by setting up nominations that will split the vote, but not successful. Those patterns stabilized for the most part after 1836, with a few hiccups after the Civil War. This system as designed works, and when people do manage to manipulate results, it tends to only work because the law is not enforced rather than the law being insufficient. (That's more of a reference to 2000.)
Sunday, June 26, 2016
Sunday, June 19, 2016
The Eleventh Amendment
"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."
Upon initially reading it, it sounds a little convoluted. In fact, even the Constitution Center mentions three ways of approaching it, so I will link to that but not get into that:
http://constitutioncenter.org/interactive-constitution/amendments/amendment-xi
What I find interesting about it is that it gets back to that question of whether the Federal Government is going to the the tyrant over-regulating the lives of citizens, or will it be the protector of individual citizens when the States will not?
One of the key inspirations for the the 11th Amendment was Chisholm v. Georgia, where the estate of one citizen in South Carolina was suing the state of Georgia for supplies that had not been paid for. Georgia declined to appear, arguing that as a sovereign state they could not be sued without permitting it.
Although one can clearly see that this line of reasoning leaves a clear path to abuse - including non-payment of debts - by the states, and Chisholm was initially victorious, the 11th Amendment was then ratified to remove federal jurisdiction in such cases, causing the dismissal of several pending cases.
Different things can still happen when suits against states are necessary. The State can grant permission or Congress can abrogate the immunity, but imagining a state choosing to be sued when it was not required, or getting Congress to act together, may stretch the imagination.
Fortunately, complaints against states are more likely to come from residents of the states, which is a different issue entirely, but it may be helpful to remember the larger issue of States rights versus Federal rights as we get closer to the amendments dealing with the abolition of slavery.
Upon initially reading it, it sounds a little convoluted. In fact, even the Constitution Center mentions three ways of approaching it, so I will link to that but not get into that:
http://constitutioncenter.org/interactive-constitution/amendments/amendment-xi
What I find interesting about it is that it gets back to that question of whether the Federal Government is going to the the tyrant over-regulating the lives of citizens, or will it be the protector of individual citizens when the States will not?
One of the key inspirations for the the 11th Amendment was Chisholm v. Georgia, where the estate of one citizen in South Carolina was suing the state of Georgia for supplies that had not been paid for. Georgia declined to appear, arguing that as a sovereign state they could not be sued without permitting it.
Although one can clearly see that this line of reasoning leaves a clear path to abuse - including non-payment of debts - by the states, and Chisholm was initially victorious, the 11th Amendment was then ratified to remove federal jurisdiction in such cases, causing the dismissal of several pending cases.
Different things can still happen when suits against states are necessary. The State can grant permission or Congress can abrogate the immunity, but imagining a state choosing to be sued when it was not required, or getting Congress to act together, may stretch the imagination.
Fortunately, complaints against states are more likely to come from residents of the states, which is a different issue entirely, but it may be helpful to remember the larger issue of States rights versus Federal rights as we get closer to the amendments dealing with the abolition of slavery.
Sunday, June 12, 2016
The Ninth and Tenth Amendments
There has been so much going on this past week and today that I am grateful these two are fairly straightforward.
IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
X
The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I feel like these last two amendments in the Bill of Rights are a closing out to it, in much the same way that the last two articles function for the regular body of the Constitution. We know what we have said, we thought hard about it, so don't go trying to say it means this or that. Having those bits of clarity doesn't mean that no one would ever try and shrink or stretch a definition, but it's at least an attempt at closing the process.
They say that everything we have just gone over is the province of the Federal government, but primarily for the purpose of delineating the rights of persons that the government will defend. If we didn't mention it, it can be left to the States, or to the conscience of individual citizens, but we know our government does not need to keep inserting itself into everything.
That could be dangerous ground, but I think it shows a confidence in what came before. We covered what we need to, and the important things are contained therein.
That is not to say there was no controversy in the ratification of these first ten amendments, but it must have nonetheless been possible to look at what had been accomplished and feel like it was good.
IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
X
The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I feel like these last two amendments in the Bill of Rights are a closing out to it, in much the same way that the last two articles function for the regular body of the Constitution. We know what we have said, we thought hard about it, so don't go trying to say it means this or that. Having those bits of clarity doesn't mean that no one would ever try and shrink or stretch a definition, but it's at least an attempt at closing the process.
They say that everything we have just gone over is the province of the Federal government, but primarily for the purpose of delineating the rights of persons that the government will defend. If we didn't mention it, it can be left to the States, or to the conscience of individual citizens, but we know our government does not need to keep inserting itself into everything.
That could be dangerous ground, but I think it shows a confidence in what came before. We covered what we need to, and the important things are contained therein.
That is not to say there was no controversy in the ratification of these first ten amendments, but it must have nonetheless been possible to look at what had been accomplished and feel like it was good.
Sunday, June 5, 2016
The Seventh and Eighth Amendments
VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The funny thing about the Seventh Amendment is you would think that surely the $20 amount has been changed by now, and it kind of still holds.
There are much higher dollar amounts that are required for a case to be heard in federal court, but there are other courts. You can have a trial without a jury for amounts up to $5000 in small claim courts, but those are not criminal cases.
Ultimately, in a criminal case, you have the right to be tried by a jury, and if the jury exonerates you the judge cannot overturn it. If the jury convicts you, that can be appealed, and in a particularly egregious case a judge might overturn the jury's conviction or even dismiss the case without it going to jury, but that is only to work in your favor. A judge cannot say that the jury's vote for your innocence does not count.
This is a valuable amendment, and one we would be upholding pretty well, except that it may get abused via plea bargains, when frightened people may feel it is better to plea than to go to trial.
This is what makes the 6th Amendment right to a speedy trial so important, as well as the provisions of the 8th Amendment. Awaiting trial in jail can put a life on hold, with wages being lost, and then possibly jobs and places of residence. Excessive bail and fines can derail a life despite the presumption of innocence.
Again, if we believe that even the guilty must not receive cruel or unusual punishment, which we claim here, than we should not be cruelly punishing those who have not been convicted.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The funny thing about the Seventh Amendment is you would think that surely the $20 amount has been changed by now, and it kind of still holds.
There are much higher dollar amounts that are required for a case to be heard in federal court, but there are other courts. You can have a trial without a jury for amounts up to $5000 in small claim courts, but those are not criminal cases.
Ultimately, in a criminal case, you have the right to be tried by a jury, and if the jury exonerates you the judge cannot overturn it. If the jury convicts you, that can be appealed, and in a particularly egregious case a judge might overturn the jury's conviction or even dismiss the case without it going to jury, but that is only to work in your favor. A judge cannot say that the jury's vote for your innocence does not count.
This is a valuable amendment, and one we would be upholding pretty well, except that it may get abused via plea bargains, when frightened people may feel it is better to plea than to go to trial.
This is what makes the 6th Amendment right to a speedy trial so important, as well as the provisions of the 8th Amendment. Awaiting trial in jail can put a life on hold, with wages being lost, and then possibly jobs and places of residence. Excessive bail and fines can derail a life despite the presumption of innocence.
Again, if we believe that even the guilty must not receive cruel or unusual punishment, which we claim here, than we should not be cruelly punishing those who have not been convicted.
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