Constitution 11: Pre-Civil War Amendments to the Constitution

Prior to the Civil War two amendments were proposed to the Constitution, one to clarify the power of federal courts where litigation against a state is concerned and the other to clarify how presidents would be elected following the contested election of 1800. The paucity of Amendments is a testimony to the sagacity of the founders who wrote the Constitution and the of those who crafted the Bill of Rights. For the first seventy and more years of the nation’s history, the original document was found to be workable, though tensions grew during that period over slavery—tensions that would lead to the Civil War, which we will cover in a few weeks.

Federal Courts and Suits Against States

The Eleventh Amendment to the Constitution provides that:

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. [1]

Article II, Section 2 of the Constitution as originally enacted allowed federal courts to hear disputes “between” a state and citizens of another state, or citizens or subjects of a foreign state. [2] At the time, it was anticipated that this provision could create problems, and indeed it did. Almost immediately after the Constitution was ratified, plaintiffs began relying on this Clause in Article III to sue several states in the Supreme Court.

One of these suits was Chisholm v. Georgia 2 U.S. 419 (1793). [3] In this case, Chisholm, a citizen of South Carolina, sued the State of Georgia over payments due for goods Robert Farquhar had supplied Georgia during the American Revolutionary War. The defendant, Georgia, refused to appear in Federal Court, claiming that as a sovereign state, it could not be sued without its consent to the suit. (It might be remembered that one of the reasons for adopting the constitution was to allow for payment of debts incurred in prosecuting the Revolutionary War. This suit was one of many possible suits that might be brought by creditors of the several states as a result of the Revolutionary War and other matters. ) The Supreme Court ruled that Chisholm’s suit against Georgia could proceed in federal court.

There was a dissent in the case, reasoning that under Common Law, that each state is sovereign except as specifically stated in the Constitution or provided for by Congress under one of its enumerated powers. Therefore, in the areas in which the several states are sovereign, they possess the immunity of a sovereign and may not be sued without consent. I quote the dissent because the argument flows from a close reading both of the Constitution and of the history of English Common law that might impact the case. Justice Iredell in his dissent concluded as follows:

I have now, I think, established the following particulars. 1st. That the Constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the legislature appointing courts and prescribing their methods of proceeding. 2nd. That Congress has provided no new law in regard to this case, but expressly referred us to the old. 3rd. That there are no principles of the old law, to which, we must have recourse that in any manner authorize the present suit, either by precedent or by analogy. The consequence of which, in my opinion, clearly is that the suit in question cannot be maintained, nor, of course, the motion made upon it be complied with. [4]

The dissent became law with the passage of the Eleventh Amendment to the Constitution, which was introduced in Congress almost immediately after the case was decided.

The 11th Amendment has been often construed by the federal courts since its enactment. The amendment is central to the division of power between State and Federal Governments and preventing Federal courts from becoming involved in lawsuits between states and private individuals and foreign governments, thus abrogating the rights reserved to the states under the Constitution. There are large areas in which the Federal Government does not need to be involved, and if it were involved Federal Courts would be swamped with litigants attempting to find a more favorable forum than the state courts of the states with which they have a dispute. Nevertheless. the amendment does not by its express language bar all lawsuits against states or their officials arising in federal courts, though the Supreme Court has upheld a broad immunity on the basis of the amendment.

From a communitarian point of view, the 11th Amendment is a sign of the continuing American interest in a system of dual sovereignty in which various layers of government each undertake their own responsibilities with independence. This independence applies to the states within their reserved rights and to the federal government within the scope of their designated powers.

12th Amendment: Electing a President

The 12th Amendment to the Constitution provides as follows:

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 of 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. [5]

Originally, the Constitution provided that the Electoral College would meet and each elector would cast two votes. The person with the largest number votes in excess of a majority became President and the person with the second largest number became Vice President. If no majority elected the President, the House of Representatives would elect the President, who with each state casting one vote. As mentioned before, the Constitutional Convention had assumed, as occurred that George Washington would be elected President, which he unanimously was. John Adams was elected his Vice President. When Washington was elected there were no political parties. In fact, the framers initially desired the President to be the best person for the job, not the leader of a political party, and for a part of this term in office, Adams tried to present himself as above politics. It was a noble, but short lived experiment.

The election of 1800 exposed flaws in the system. [6]  In this election, the vying candidates for the Presidency were John Adams, the sitting President, and Thomas Jefferson, the sitting Vice President. The final years of the Adams Presidency revealed the consequences of the fact that the then-current system of electing a President and Vice President allowed for the situation to develop in which the President and Vice President were not of the same party, and potentially the ascension of the Vice President to the Presidency could undo a considered judgement of the voters as to their choice.

By 1800, the nation had developed the institution of political parties, with Adams representing the Federalist and Jefferson representing the Democrat Republican parties. Roughly speaking, the Federalists had an expansive view of the federal government’s power and Democrat Republican a more restrictive position, at least in theory. (Jefferson proved willing to expand federal powers when the opportunity to purchase the Louisiana Territories presented itself.) By the time of the election, Adams and Jefferson were barely on speaking terms, much less colleagues in governance. Each of Adams and Jefferson had “running mates” in the 19800 election, Charles Pinkney of South Carolina as to Adams and Aaron Burr as to Jefferson.

In the end, the election was sent to the House of Representatives where Jefferson was chosen as President and Burr as Vice President. However, the way in which the election was decided exposed flaws in the system. For one thing, the “One State/One Vote” system in the House of Representatives allowed for smaller states with a small population to have the same vote as larger states. Inside the state delegations, votes had to be taken as to how their vote was to be cast, and in the event of a tie vote, the vote was not to be counted. In the end, one representative’s decision could determine the entire national election.

It was against this background that the 12th Amendment was proposed. Under the Amendment as adopted, electors cast two votes (one of them for a non-native of the elector’s home state). However, under the amendment, one of the votes had to be for a candidate for President while the other for a candidate for Vice President. This amendment, therefore, ensures that the situation of the election of 1800 cannot occur again.

1824 and 1877 Elections

Problems surrounding the election of the President again surfaced in the election of 1824. In this election, Andrew Jackson received the most votes but not a majority. The election was then decided by the Congress, who chose John Quincy Adams as President. It was alleged that a deal was made between Henry Clay and Adams to secure the election for Adams. The bad feelings created, and the wide-spread feelings of fraud and denial of the popular will, resulted in Jackson’s election in the 1828 election.

In 1876, there was another contested election between Rutherford B. Hayes and Samuel Tilden. Tilden won the popular vote and the electoral count. However, supporters of Hayes contested the results in three states in which there were certificates submitted for both candidates. While the Constitution, as indicated above, requires the House and Senate to formally count the certificates of election in joint session, it is silent on what Congress should do to resolve disputes. In this case, Congress established a Federal Electoral Commission to investigate the disputed ballots. The bipartisan commission, which included Representatives, Senators, and Supreme Court Justices, voted along party lines to award the contested ballots to Hayes—securing the presidency for him by a single electoral vote. [7]

2020 Election

In the case of the 2020 election the need for a proper understanding of the process for electing a president were again revealed. In the case of this election, by the time the votes were counted on January 6, 2021, there were allegations of fraud in the election. One aspect of the contention was the provision of the Twelfth Amendment that provides as follows:

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[8]

At the time of the counting of the 2020 electoral votes, there were several states in which litigation was pending concerning the validity of the vote. President Trump felt that the votes of disputed states should be determined by the Vice President. The legal advisors of the Vice President disagreed, feeling that the Vice President, as the President of the Senate, had only ministerial responsibility to declare the vote of each state. In this case, it is likely that the legal advisors of the Vice President were correct, The wording of the Constitution does not appear to give any power to the Vice President to make legal determinations. Moreover, at the time the Constitution was enacted, the States would have resisted any such claim as an imposition on their powers to determine their own electors.

In my view, the 2020 Election revealed the need for a set process to resolve contested election suits. Given the complexity of the cases, there is simply not enough time between an election day and the day Congress counts the votes for a normal judicial process to take place. Some group needs to be authorized to hear relevant evidence and make determinations of fact related to elections in a timely way where there are credible allegations of fraud sufficient to have tipped the election one way or another.

Conclusion

This week, I decided to deal with the two amendments to the Constitution enacted after the Bill of Rights and before the important amendments that resulted from the Civil War. It is a welcome relief from the speculations of Kant and Hegel, as important as they are. There was and is something comforting about a return to the law and Constitution from the speculations of philosophers!

Copyright, 2021, G. Christopher Scruggs, All Rights Reserved

[1] Constitution of the United States of America, Amendment 11.

[2] Constitution of the United States of America, Article III, Section 2.

[3] Several other suits against other states were pending at the time Chisholm was decided in 1793, including Vassall v. Massachusetts, in which a British subject (William Vassall) sued Massachusetts for violating the Treaty of Peace by confiscating his property.

[4] Chisholm v. Georgia 2 U.S. 419 (1793), Justice Iredell dissenting.

[5] Constitution of the United States of America, Amendment 12.

[6] I am indebted to the work of the Interactive Constitution at https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xii/interps/171 (Accessed October 7, 2021) for much of the analysis of this blog.

[7] “The Electoral College and Indecisive Elections” History, Art and Archives, nited States House of Representatives, at  https://history.house.gov/Institution/Origins-Development/Electoral-College/ (downloaded October 11, 2021).

[8] Constitution of the United States of America, Amendment 12. This provision superseded the original provisions of Artice II, Section 1 of the Constitution.

Hegel, Dialectic and Process/Evolutionary Thinking

 

Georg Wilhelm Friedrich Hegel was born on August 27 1770 of a middle-class German family and died November 14, 1831. During his lifetime, he became the most important German philosopher, and his work was influential on many thinkers, both continental and American. He is particularly remembered because of his influence on Karl Marx, who dispensed with Hegel’s idealism for a thorough-going materialist vision of history and the state. Hegel’s thought was also important for a generation of theologians who studied and profited from this thinking. He has fallen out of favor in more recent decades but during his own lifetime he was the preeminent German philosopher at a time when Germany ruled the philosophic world.

Hegel did not demonstrate in his youth the genius of his adulthood. He was a methodical as opposed to brilliant student, developing a life time habit of copying out quotes from great works and then filing them where they could be recovered. He had a deep interest in mysticism and in classical Greco-Roman culture, both of which influenced his philosophy. Hegel initially studied theology, a discipline for which he was not well-quipped because he was not a good public speaker and unlikely to be able to hold the attention and affection of a local congregation. His certificate of graduation from Tubingen described him as competent in philology and theology but lacking in the area of philosophy.

He began work as a private teacher and lecturer, gradually preparing his first work, like Kant, on logic (1812-1816). Throughout, he worked on his first great work, Phenomenology of the Spirit, and he prepared an Encyclopedia of the Philosophic Sciences (1817) which earned him a professorship and the University of Berlin, where he spent the remainder of this life. His two works, On Law and On History, both compilations of his lecture notes in Berlin, are primary sources for his political philosophy.

Hegel’s language and thought are notoriously difficult to understand. Schopenhauer described his work and the work of his disciples as “a stringing together of senseless and extravagant mazes words, such as had previously been known only in madhouses” and “barefaced mystification.” [1] Anyone who ever took a course in philosophy where reading Hegel was required can testify that there are times when these words ring true. Nevertheless, Hegel made important contributions in logic, metaphysics, and political philosophy and the philosophy of history.

Dialectical Thinking

Most students and many others have some familiarity with Hegel because of the prominence with which he placed dialectic in his Logic and the place it plays in his other works and in Marx. The basic notion is fairly simple: Human beings are inclined to compare and contrast things. The result is that human reason proceeds in a dialectical logic that unfolds something like this:

  1. A thesis (or truth claim) emerges;
  2. The thesis evokes anti-thesis; and
  3. A synthesis is developed.

Any synthesis then becomes a  new thesis, and the process begins again.

There is a similarity in this progression to the process of reasoning developed by C. S. Peirce and Josiah Royce.  Peirce had the insight that all communication involves a communicator, a sign by which the message is transmitted, and a recipient, who interprets its meaning. Royce adapted Peirce’s insight and developed the notion that all communication involves the person who is communicating, signs by which the communication is made, and an interpreter who interprets the meaning. What is important in this for the purposes of political philosophy is the obvious fact that this kind of reasoning is a process by which human beings analyze the world and discover meaning and truth. The process of the logical progression of ideas is a feature with profound implications for politics and the idea of human progress.

What is not always understood (and indeed may not have been fully understood by Hegel, Marx or their interpreters) is that reasoning and historical process does not and cannot have an end inside of human history. Remember that Hegel holds that every thesis results in an anti-thesis that is resolved into a synthesis, which then results in a new thesis. This process must and will continue until the end of time because it is an inherent feature of human existence. Human beings never rest satisfied with any condition of knowledge or society. There are, and will always be, signs, communicators, and interpreters, and because the signs are able to acquire new uses and meanings, those signs will never be final.

I mention this at the beginning because both Hegel and Marx posit a supreme achievement of politics—for Hegel the German state (with a qualification I will mention later) and for Marx the dictatorship of the Proletariat. In both cases, the attempt to bring history to a conclusion is wrong-headed for the reasons set out above, as are similar attempts in our own day. The process of human becoming, the analysis of defects in the current social system, the need to make adjustments to accommodate new situations are inevitable features of human life. There can be no “End of History” within history, for people, societies, and their history will always change.

This is an important point to get clear right at the beginning: We cannot escape or “end” history. Human beings cannot bring about a final end to politics, the struggle for power, or the accommodation of the present to the emerging future. All such attempts have ended and will always end in a dictatorship as those in power desperately seek to forestall the emergence of challenge to their rule. For freedom to exist and be maintained, there has to be an understanding of the inevitability of criticism of the status quo, whatever that status quo may be.

A good example of the impossibility of an end to history involves the recent fall of the Soviet Empire, which prompted an article entitled “The End of History.” History, however, did not end, for the Western democracies were faced first with radical Islam and then with the deterioration of their own societies and the reemergence of Marxism as a force. [2] In a recent article, the New York Times made the following observation about Hegel and his influence on the original article:

Hegel, Fukuyama said, had written of a moment when a perfectly rational form of society and the state would become victorious. Now, with Communism vanquished and the major powers converging on a single political and economic model, Hegel’s prediction had finally been fulfilled. There would be a “Common Marketization” of international relations and the world would achieve homeostasis. [3]

It has turned out that capitalism has continued to evolve in most Western nations into something lire like “Oligarchical Privatism” with a consequent loss of faith in its viability among the young, who have increasingly turned to socialism as an alternative. In some ways, the West has been imitating the State Controlled Capitalist model that has evolved in Russia and China since the fall of Communism. History did not end as Fukuyama predicted—nor will it end if the current batch of neo-Marxists win power.

Wholistic-Relational Aspect of Hegel’s Philosophy

Near the beginning of his work, On Right, Hegel observes that “…legislation both in its general and its particular provisions is treated not as something isolated and abstract, but rather as a subordinate moment in a whole, interconnected with all other features which make up the character of a nation or epoch. [4] Against the reductionism of scientific empiricism, Hegel is advancing the claim that a law (or any other feature of a political system) is not to be understood alone in its particularity but in its relationship to all the features of the society in which said law or feature emerges.

This is a distinct feature in Hegel’s reasoning that nothing can be understood except in all of its connections, historical, logical, philosophical, governmental, scientific, etc. In the end, Hegel’s logic leads to his view that nothing can be fully understood except in view of the Absolute, or reality as a whole. [5] It might be noted, that this underscores the view stated above that political evolution is without an end within the boundaries of human history because there will not be a point in which any nation, society, political system, etc. will be known in its absolute connection with everything else that influences the system. [6]

This aspect of Hegel’s thought in some ways anticipates the “Quantum Revolution” of the 20th Century, with its emphasis on wholeness and systems and implicit limitations on the reductionist science of the modern world, which by implication casts doubt upon the reductionist political science and materialistic politics of the 19th and 20th Century. This, as we shall eventually see, casts doubt on Marxism, Laisse Faire Capitalism, and the kind of “State Controlled Oligopolism” we see emerging at the current moment of history. The emergence of a relational. Holistic way of thinking involves a new way of thinking in which the old dualisms and distinctions of modern thinking are replaced by a new way of thinking, which in turn will inevitably result in an end to the older, modern materialistic and power-oriented way of conceiving political life.

History as a Rational Process

As might be expected from a proponent of dialectical reasoning and a professor of logic, Hegel believes that beneath the wars, conflicts, revolutions, and innumerable events that make up human history, there is a logic, a reason, a process unfolding as reason, which is the ultimate substance of the universe unfolds within reality. This unfolding of history is the unfolding of the activity of free spirit as it is revealed in the dialectical process of history. [7] This unfolding of reason in history is not a material process; it is however embodied in the material processes, the historical forces of history and cannot be separated from them. Thus, Hegel posits:

The loftier dialectic of the concept consists not in simply producing the deterministic as a contrary and a restriction but in producing and seizing upon the positive content and outcome of the determination, because it is this that makes it solely a development of an immanent progress. Moreover, this dialectic is not an active, subjective thinking applied to some matter externally but is rather the matter’s very soul putting forth its branches and fruit organically. This development of the Idea is the proper activity of its rationality and thinking….” [8]

This way of thinking is modified and adapted by Marx who fully embraces the materialistic side of Hegel’s thought.

Freedom as the Ultimate Ground of Political Thinking

The idea of freedom sits at the basis of Hegel’s political philosophy. Hegel is a natural law thinker, and the basis of this notion of natural law is the idea of personal freedom or the freedom of the human will. In this, Hegel follows both Kant and Rousseau as a philosopher of freedom. [9] Like these other two philosophers, the freedom is the freedom of the isolated individual over and against all social structures and other intellectual constraints. Like Kant and Rousseau the actual political implications have been the reverse of what Hegel intended.

In my opinion the reason for this is that freedom is not fundamental but flows from love which is fundamental to human societies. It is love that gives the other, the one who disagrees with our opinions or questions the status quo the freedom to be what they are. A monadic or individualized basis for freedom always fails, as indeed it is failing in our own day as a multitude of individual ego’s seek power and actualized freedom. Only a communitarian basis for freedom founded on a kind of self-giving love that allows the other freedom (which is a Christian concept) can form the basis for a lasting freedom and end the power-oriented striving of the modern world, allowing a positive post-modern era to emerge. [10]

Conclusion

Hegel is a complex but fruitful thinker. As mentioned earlier, he viewed the German State of his day as the highest development of the state to his time. However, interestingly, his view was that the future belonged to America, thus foreseeing the role that America would play in the late 19th and 20th Centuries. If he were alive today, he might see the forces of history bringing China to the forefront of history. This is the ground of my observation that Hegel himself may not have seen history as having the kind of end that his interpreters see in his work. In any case, it is hard not to see in Hegel’s logic the reality that history can never come to an end within the history of human existence, for human society will always change and evolve.

We will return to Hegel both in looking at Marx and at Alfred North Whitehead, whose work extends Hegel’s influence into the evolving post-modern era.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Quoted in Will Durant, The Story of Philosophy (New York, Simon and Schuster, 1951), 221.

[2] Francis Fukuyama originally wrote a book entitled “The End of History,” which he has recently rewritten as

3 Louis Menard, “Francis Fukuyama Postpones the End of History” New York Times, September 3, 2018 https://www.newyorker.com/magazine/2018/09/03/francis-fukuyama-postpones-the-end-of-history (downloaded October 4, 2021). This is a review of Fukuyama’s revision of his thesis in his book, The End of History and the Last Man” (London, England: Routledge, 2010). His original article was roundly criticized for some of the same reasons I have given.

[4] G.F.W, Hegel, “On Right” in “Hegel” Britannia Great Books, Vol. 46: Chicago, IL: Britannia Great Books, 1987), 10. Hereinafter, all citations are to this volume unless otherwise noted.

[5] See, Bertrand Russell, History of Philosophy (New York, NY: Simon and Shuster, 1945), 723.

[6] I do not have the time or space within this blog to examine all the implications of this observation. When we return to C. S. Peirce and Josiah Royce we will examine the importance of this within the context of their evolutionary pragmatisms. Royce talks about an “Absolute Pragmatism,” by which I think he means a pragmaticism driven by the hope of that hypothetical moment in which all members of a community of inquiry reach agreement about a point of truth. Royce was a student of Hegel.

[7] Russell, previously cited at 736.

[8] Hegel, “On Right” at 19.

[9] Hegel, “On Right” at 19. “It is only because right is the embodiment of the absolute concept or of self-consciousness freedom that it is something sacrosanct.

[10] See, John Zizioulas, Being as Communion (New York, NY: St. Vladimir’s Press, 1985), 47. To understand Zizioulas’ argument requires a careful reading of the entire first section of his book.