Constitution Study with Douglas V. Gibbs, March 24, 2011
The Twelfth Amendment, and the Lost Thirteenth Amendment
Text of the 12th Amendment: 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 Twelfth 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 appointed by their state legislature. In that election, six states followed that procedure.
Each state is constitutionally allowed to choose how to appoint or elect their electors, and the methods vary 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 Twelfth 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 Twelfth Amendment, electors could vote for two candidates, though at least one had to be from a state different from that of the elector. A majority of the vote needed to be received in order to win the presidency. If more than one 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.
Before the Twelfth Amendment, the choice of the Vice President went to the second place winner. 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 Twelfth 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 Twelfth 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 Twelfth Amendment indicates that no elector may vote for both candidates of a presidential ticket if both candidates inhabit the same state as that elector.
The Twelfth 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 Twelfth 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 Twelfth Amendment requires the House 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 Twelfth Amendment requires a quorum requirement of two-thirds for balloting.
The Lost 13th Amendment
"If any citizen of the United States shall accept, claim, receive, or retain any title of nobility or honor, or shall without the consent of Congress, accept and retain any present pension, office, or emolument of any kind whatever, from any emperor, king, prince, or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them."
The original 13th Amendment was proposed in December of 1809, and ratified March 12, 1819. The amendment addressed the founders distrust of nobility.
The original Thirteenth Amendment instituted a penalty of the loss of citizenship for accepting or using a "Title of Nobility or Honor" to set oneself apart from, or superior to, or possessing of any special privileges or immunities not available to any other citizen of the United States, and to eliminate the widespread use of "emoluments" as bribery and of the legislatures and judiciary used to further the causes and positions of "Special Interests". It was an attempt to keep politicians and civil servants "Honest" in their service to the citizens. It added to Article I, Section 9, Clause 8, which disallowed any person holding office to accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. The original Thirteenth Amendment, however, applied the penalty to “any citizen of the United States.”
The original Thirteenth Amendment was proposed and properly ratified. Yet, over the years, it disappeared. The amendment was deleted without ever being repealed. Quietly faded out. It is believed it was finally completely stamped out in 1865, just in time for the new 13th Amendment.
The very existence of the original amendment was unknown until it was discovered in 1983 when researchers discovered in the public library at Belfast, Maine an 1825 copy of the U. S. Constitution, which included the lost amendment. More research since then has revealed numerous records listing the ratifying states, and showing the original Thirteenth Amendment in various state and territory records. In fact, the 1867 Colorado Territory edition of the Constitution actually includes both the "missing" Thirteenth Amendment and the current 13th Amendment, on the same page. The current 13th Amendment is listed as the 14th Amendment in the 1867 Colorado edition.
The 1876 Laws of Wyoming also shows the "missing" Thirteenth Amendment, the current 13th Amendment on the same page. The current 13th Amendment is listed as the 14th, the current 14th amendment is omitted, and the current 15th Amendment is in its proper place.
More amazingly, there was yet a third 13th Amendment tucked in between the original, and the current amendment, signed by President Buchanan on March 2, 1861, two days before Lincoln's inauguration, which would have permanently legalized slavery. Not enough states ratified it, however, and the onslaught of the Civil War kept it from going any further.
On December 18, 1865, the "new" 13th Amendment prohibiting and abolishing slavery (and according to some surrendering states rights to the federal government) was proclaimed adopted by Secretary of State Seward, replacing and effectively erasing the original Thirteenth Amendment that had prohibited acceptance of "titles of nobility" and "honors" and "emoluments."
Part of the reason for the amendment was to stop foreign influence on the American court system, which under John Marshall had been seizing power and growing as a political influence on the law. The fear was that a judicial oligarchy was forming, and that the lawyers would act as the henchmen of an activist judiciary.
The lawyers realized, it is theorized, that the original 13th Amendment would keep them in check; therefore, the lawyers saw the need to eliminate the amendment. Coincidentally, it was not until after the Civil War and after the disappearance of the original 13th Amendment, that the American Bar Association began to appear and exercise political power.
After the deletion of the original 13th Amendment, the newly developing Bar Associations began working diligently to create a system wherein lawyers took on a title of privilege and nobility as "Esquires" and receive the "honor" of offices and positions (like District Attorney or Judge) that only lawyers may now hold. By virtue of these titles, honors, and special privileges, lawyers have assumed political and economic advantages over the majority of U.S. Citizens. These privileges have given to the lawyers a two-tiered citizenship in this Nation where a majority may vote, but only the minority of lawyers may hold the afore mentioned political offices (often used to launch them into other political offices). This two-tiered system is contrary to America's political interests, economic welfare, and the Constitution's spirit of equal protection and uniform opportunities.
The lost 13th Amendment demonstrates that the Founding Fathers recognized the danger of an activist judiciary, and how the conniving methods of lawyers made the members of the legal community enemies of the people and of the United States.
Special Thanks to: Faith Armory, 27498 Enterprise Cir. W #2, Temecula, CA 92562
951-699-7500, www.faitharmory.com - For providing us with a classroom to meet in.