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Constitutional FAQ Answer #30

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Q30. "The wording of the Constitution gets confusing, which is understandable since it was written in the 18th century and uses legal terms that most laymen have never had cause to learn. Specifically, I can't make heads or tails of Amendments XI and XII. Could you explain these to me?"

A. The 11th Amendment was a direct response to a case that the Supreme Court ruled upon in 1793 (Chisholm v Georgia), in which an individual not from Georgia sued the state of Georgia. The Congress was outraged, and the amendment passed Congress with blinding speed. The controversy was not so much that a state was sued, but that the Court determined that it had original jurisdiction over the case, based on Article 3 of the Constitution. The states did not want to be answerable to federal courts, and this amendment sought to have that effect. The history and current effect of the Amendment is highly technical in a legal sense. I suggest reading the Annotated Amendment at the GPO Web site.

The 12th Amendment was intended to clarify the process to be used in the selection of the President and Vice President, as well as change the method of electing the Vice President. It was a response to the election of 1800, where Jefferson and Burr received equal votes in the Electoral College, even though it was plain from the voting that Jefferson was intended to be President and Burr VP. Previously, the Vice President was that person who came in second in the Presidential balloting in the Electoral College. This amendment states that the Vice President is a separate office for which a separate vote is taken. The College will meet separately in their respective states, cast their votes and send them, sealed, to the President of the Senate. Those votes are then opened and counted in front of the entire Congress.

It goes on to state that if no one person has a majority of the electoral votes, the top three vote-getters will be presented before the House of Representatives, and that body will vote on who of the three shall become President. In that voting, each state will have one vote. A similar provision is made for the voting for the Vice President.

The amendment introduces an interesting technicality into the identity of the President and Vice President. It almost precludes the two from being citizens of the same state, since the electors in that state cannot cast votes for more than one person from that state. Since Vice Presidential candidates are today often chosen to help a regional favorite reign in national appeal, it is rare for this to come up now (though the recent 2000 election did have questions about the residency of George Bush and Richard Cheney).

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