When one thinks of amendments to the Constitution of the United States, a few come to mind. The First and Second amendments—freedom of speech and to bear arms—appear frequently in political and social discussions. You may have heard of someone “pleading the Fifth,” invoking their right not to testify against themselves. The Bill of Rights, the first 10 amendments, is a familiar name. The 13th Amendment, passed during the Civil War, banned slavery and involuntary servitude. The 14th Amendment, passed shortly after the war, enshrined in law the civil rights of freed slaves. But what about the two amendments in between? The 11th and 12th amendments are overshadowed by their brethren on either side, the Bill of Rights and Reconstruction Amendments. Where did these amendments come from? What do they do? What impact do they have on us today?
The 11th Amendment was born out of legal trouble. During the Revolutionary War, two Georgia Commissioners, Thomas Stone and Edward Davies, purchased goods from South Carolina merchant Robert Farquhar to supply Patriot troops stationed in Savannah, Georgia. Stone and Davies agreed to pay Farquhar $169,613.33, but did not have the money on hand, promising to pay him later. That was 1777. Farquhar died in 1784, still unpaid. Five years later, Farquhar’s estate filed a claim for the money with Georgia’s state government. Georgia refused to pay the money, claiming Stone and Davies had already withdrawn the money intended to pay Farquhar. The state told Farquhar to sue the two commissioners.
Alexander Chisholm, the executor of Farquhar’s estate, sued Georgia in Federal Court for the money instead, seeking $100,000 in payment for the goods and for damages. Georgia argued that it was "a free, sovereign and independent State...[and] cannot be drawn or compelled... to answer, against the will of the said State of Georgia, before any Justices of the Federal Circuit Court for the District of Georgia or before any Justices of any Court of Law or Equity whatsoever". In other words, Chisholm did not have standing (the right to sue) because he was not a citizen of the state of Georgia.
Chisholm lost the case in circuit court, but sued Georgia again, this time at the Supreme Court, for $500,000 in restitution and damages. The court first heard the case in 1792, but when no lawyers for Georgia attended the hearing, Chisholm agreed to delay until 1793. A year later, the court heard the case again, and Georgia still did not send any lawyers to represent itself. The court went ahead with the case anyway and listened to the arguments of Chisholm’s lawyers. In its decision, the court voted 4-1 in favor of Chisholm, arguing that the Federal judicial power extends to suits between state governments and the citizens of other states. It also held that the Constitution made no exception limiting the Federal courts’ authority to suits where a state itself was the plaintiff.
The decision in Chisholm v. Georgia worried lawmakers in Congress, who feared that the states would be flooded with legal challenges. The Senate drafted the 11th Amendment to limit who could and could not sue the states, protecting them from frivolous lawsuits. The amendment clarifies Article III, Section 2 of the Constitution, which enumerates the powers of the Federal Judiciary. The amendment reads:
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.
Congress proposed the 11th Amendment on March 4, 1794, and it became law on February 7th, 1795, when North Carolina became the 12th state to ratify it, achieving the 3/4ths threshold necessary for an amendment to become part of the Constitution. However, the amendment didn’t truly come into effect until President John Adams stated as much in a message to Congress three years later, on January 8, 1798. Shortly afterward, Federal courts dismissed all cases whose standing relied on the Chisholm v. Georgia decision. Subsequent court decisions have, over time, reduced the effect of the 11th Amendment, allowing several exceptions to state immunity. However, the core of the 11th Amendment remains in force.
The 12th Amendment draws its roots from John Adams’ presidency. Under the original Constitution, each elector from the Electoral College cast two votes for president. The elector may decide to split his votes or assign both to a single candidate. The candidate with the most votes became the president, and the runner up became the vice president. During George Washington’s presidency, this was not an issue, since the electors unanimously voted for George Washington and his hand-picked vice-presidential candidate. However, when Washington retired, he left the race for president in 1796 wide open.
For the first time, partisan political parties—Federalists and anti-Federalists— put forward opposing candidates for the presidency. The election was close, and John Adams won a narrow majority in the electoral college, with his opponent, Thomas Jefferson, coming in second place. This meant that while Adams became president his political rival, Thomas Jefferson, became vice president. The two were unable to cooperate and actively undermined each other during Adams’ term in office, causing both scandal and turmoil in the federal government. The same happened in reverse in the 1800 election, with Thomas Jefferson winning the presidency and Aaron Burr becoming vice president. With neither political party likely to disappear, it looked like the opposition of president and vice president would be a permanent feature of American democracy. Congress, worried by the prospect, decided to change how the president and vice president were chosen.
The 12th Amendment retains each elector’s two votes but separates them into one vote each for president and vice president. The candidate in each category with the most votes, if it is a majority, wins the position. The separation of the votes for president and vice president allows each party to run separate candidates for each position and ensure the party that wins the electoral college will control both the presidency and the vice presidency. After lengthy debates, Congress proposed the 12th Amendment on December 9, 1803, and became law when New Hampshire became the 13th state (of 17) to ratify it on June 15, 1804. The new rules went into effect that year in the 1804 Election and have governed every presidential election since.
The 11th and 12th Amendments—while overshadowed by the Bill of Rights which preceded them and the Reconstruction Amendments that came afterward—still play a vital role in America’s constitutional order. Neither amendment made any sweeping changes. Instead, they made minor adjustments. These changes helped make the Constitution “more perfect,” in the same way that its original signers hoped to create a “more perfect” union.
