Amendments 11-27

The Eleventh Amendment added to the Constitution in 1795 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.”

NOTE: The Eleventh Amendment was the first amendment added to the Constitution to change a part of the original Constitution and, at the same time, the first amendment added to overturn a Supreme Court decision.

NOTE: As written at the 1787 Constitutional Convention, Article III, Section 2 extended the jurisdiction of U. S. courts to cases “between a state and citizens of other states” and to cases “between a state, or the citizens thereof, and foreign states, citizens, or subjects.” In the debate over the ratification of the new Constitution, some opponents argued against these provisions on the grounds that they violated “the doctrine of sovereign immunity” which asserts that a sovereign government cannot be sued without its consent. In 1793, the Supreme Court under its first Chief Justice John Jay heard Chisholm v Georgia, a case brought by a citizen of South Carolina against the state of Georgia. The Court ruled in Chisholm’s favor. After Georgia vigorously protested the Court’s action, Congress by overwhelming votes in both houses proposed what became the Eleventh Amendment, and three-fourths of the states quickly ratified it. The amendment alters Article III, Section 2 and specifically denies federal courts jurisdiction to hear suits brought by citizens of one state (or of another nation) against another state.

NOTE: Under the presidential election system established in Article II, Section 1 of the 1787 Constitution, each elector of the Electoral College voted two times, but was not required to state for whom he was voting for President and for whom he was voting for Vice President. The framers’ idea was that the electors, free of any political alliances, would simply cast their votes for “the best man.” The individual who received a majority of the electoral votes, became President, and the individual who received the second largest number of electoral votes automatically became Vice President.

NOTE: In the nation’s first two presidential elections (1788 and 1792) the system worked because of George Washington and because the nation had only one political group, the Federalists. By 1796, however, there were two political groups, the Federalists and the Democratic-Republicans, and George Washington had departed the nation’s government. The fourth presidential election in 1800 revealed problems with the 1787 presidential election system. For the only time in the nation’s history, there was a tie in the electoral vote between Thomas Jefferson and Aaron Burr, both members of the Democratic-Republican Party. Pursuant to the Constitution, the election was thrown into the House of Representatives controlled by the Federalists who preferred neither Jefferson nor Burr. Finally, voting by states, as provided by the Constitution, on the 36th ballot, the House chose Jefferson to be the nation’s third President. In 1803, Congress proposed the Twelfth Amendment, and it was ratified by three-fourths of the states in June,1804.

The Twelfth Amendment made these major changes in Article II’s presidential election system: (1) Each elector in the electoral college has one electoral vote for President and one electoral vote for Vice President, and voting by the electors for President is separate and distinct from their voting for Vice President; (2) if no candidate for President wins a majority of the electoral votes for President, the House of Representatives voting by states with each state having one vote chooses the President from among the top three electoral vote winners, instead of from the top five as Article II had originally provided: (3) if no candidate for Vice President receives a majority of the electoral votes for Vice President, the Senate, with each senator having one vote, chooses the Vice President from the top two electoral vote winners; and (4) no person constitutionally ineligible to be President can be Vice President.

Section 1 of the Thirteenth Amendment added to the Constitution in 1865 provides: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.”

NOTE: The “fugitive slave” provision of Article IV, Section 2 of the 1787 Constitution was thus repealed.

Section 2 provides: “Congress shall have power to enforce this article by appropriate legislation.” Note: Congress began debating a proposed constitutional amendment abolishing slavery in the entire nation in 1864, and the proposed amendment passed the Senate. However, not until 1865 were the Republicans in the House able to persuade enough Democrats to vote for the proposed amendment and secure the required two-thirds vote. Disagreement arose immediately over the meaning of the amendment, particularly the extent of Congress’ authority to enforce it through “the enforcement clause” of Section 2. Some argued that all the amendment did was to end the “master-slave” relationship and that consequently no more federal action was needed or warranted. Others argued that the amendment required further action by Congress to assure full and equal rights for former slaves.

The first sentence of Section 1 of the Fourteenth Amendment added to the Constitution in 1868 states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

NOTE: For several reasons, many constitutional scholars argue that, aside from the Bill of Rights, the Fourteenth Amendment is the most used, significant, and far-reaching amendment ever added to the Constitution.

NOTE: As written at the 1787 Constitutional Convention, the Constitution said nothing about who was a citizen of the United States. In the 1857 case Dred Scott v Sanford, the Supreme Court declared that slaves were property and were not and could never be citizens of the U. S. The first sentence of the Fourteenth Amendment for the first time in the Constitution defines American citizenship, and, for only the second time in American history, the constitutional amendment process was used to overturn a Supreme Court decision, namely the Court’s decision in Dred Scott v Sanford.

The remainder of Section I of the Fourteenth Amendment provides three important limitations on state governments. The first of the three declares that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

NOTE: Article IV of the Constitution has an identical phrase, but it guarantees that states will treat out-of-state citizens the same way they treat their own citizens.

NOTE: This first of these three important limitations on the states speaks of “the privileges or immunities of citizens of the United States” while the other two limitations spelled out in Section 1 speak of the states being forbidden to deny “any person” due process of law or the equal protection of the laws.

NOTE:Fourteenth Amendment viewed the privileges or immunities clause as the most important of the three clauses placing limitations on the states. They believed that the privileges or immunities clause required the states to respect all of the rights specifically listed in the first ten amendments (the Bill of Rights). The Supreme Court in the 1873 Slaughterhouse Cases rejected that view and interpreted the clause so narrowly that, as a result, the clause was made virtually useless forever.

The second of the three limitations imposed on the states by Section 1 provides: “nor shall any state deprive any person of life, liberty, or property, without due process of law.”

NOTE: The Fifth Amendment also contains a due process of law clause. The difference is that it applies to and thus limits the government of the United States whereas this same provision in Section 1 of the Fourteenth Amendment applies to and limits the states.

NOTE: Beginning in the early decades of the twentieth century, a majority of the Supreme Court, through a process called “incorporation,” began using the due process of law clause of Section 1 to make most of the individual rights of the Bill of Rights apply to and limit the states. In other words, the Court has used the due process clause to largely overturn the Supreme Court’s decision in the 1833 case Barron v Baltimore where the Court ruled that the Bill of Rights only applied to and limited the national government, not the states. This is sometimes called “the due process revolution” or “the second Bill of Rights.” For example, all of the specific rights of the Bill of Rights except for (1) the Third Amendment, (2) the grand jury clause of the Fifth Amendment, (3) the Seventh Amendment, and (4) the protection against excessive bail or fines of the Eighth Amendment today apply to and limit the states just as they have applied to and limited the national government since they were written.

The third of the limitations imposed on the states by Section 1 provides: “nor shall any state deny to any person within its jurisdiction the equal protection of the laws.”

NOTE: In the late nineteenth century, the Supreme Court interpreted the “equal protection of the laws clause” very narrowly. For example, the Court declared Congress’ Civil Rights Act of 1875 outlawing racial discrimination in public accommodations such as hotels and restaurants unconstitutional. The Court reasoned that Congress could only prohibit discrimination by “state action,” not private discrimination as was being done by private individuals who owned hotels and restaurants.

NOTE: In the same time period, the Supreme Court in the 1896 case Plessy v Ferguson ruled that a state law requiring racial segregation on railway cars did not violate the equal protection of the laws clause as long as “the separate facilities were equal.” It was not until much later that the Court took a broader view of the equal protection of the laws clause and overruled some of the Court’s own earlier decisions such as Plessy. In addition, in the later decades of the twentieth century, the Court also began to interpret the equal protection of the laws clause to prohibit gender discrimination as well as discrimination in other areas such as voting or the drawing of legislative districts.

The meaning of Section 2 of the Fourteenth Amendment was very clear. It repealed the so-called “three-fifths compromise” of Article I, Section 2 of the original Constitution and provided for a reduction of representation in the U. S. House of Representatives for any state denying the right to vote to males over 21 years of age. Note: This provision served to anger leaders of the women’s rights movement because for the first time it introduced the word “male” into the Constitution. The meaning of Section 3 was also very clear. Anyone who had held office in the government of the U. S. or any state and had taken an oath to support the U. S. Constitution but then committed treason by supporting the Confederacy was forbidden to hold any U. S. or state office.

The meaning of Section 4 was also equally clear. Debts incurred by the Union during the Civil War would be honored, but any debt incurred by the rebellious southern states was not the responsibility of the U. S. or any state.

Section 5 of the amendment provides that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” NOTE: Congress has used this so-called “enforcement clause” of Section 5, for example, in adopting part of the Voting Rights Act of 1965 in which Congress forbade the states to deny the right to vote to any citizen who had completed the sixth grade in the U. S. regardless of his or her language. The Supreme Court upheld Congress’ action using the enforcement clause.

Section 1 of the Fifteenth Amendment added to the Constitution in 1870 provides that “the right of citizens of the United States to vote shall not be abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

Section 2 provides that “the Congress shall have power to enforce this article by appropriate legislation.”

NOTE: In 1869, when Congress began to consider what became the Fifteenth Amendment, a few members advocated that the amendment should extend the vote to women as well as African Americans. Another version would not only have protected the right to vote but also the right to hold office. In an effort to secure the amendment’s passage, its supporters adopted the least aggressive version. Instead of granting a positive or absolute right to vote, the proposed amendment which Congress adopted was framed in terms of a prohibition on the use of race, color, or previous condition of servitude to deny the right to vote. Noticeably, the amendment does not mention gender which meant that male, former slaves could not be denied the right to vote, but women of all races could still be denied that right. Congress later used the enforcement clause of Section 2 to pass the Civil Rights Acts of 1957 and 1960 as well as the Voting Rights Act of 1965.