January 3, 1935 – First time Congress Convened Pursuant to Requirements of the 20th Amendment to the Constitution

On this day in history, the 74th Congress (1935-1937) became the first to convene at noon on January 3, as provided for in the 20th Amendment. As a House of Representatives History webpage points out:

Since the First Federal Congress (1789–1791), the official start date of the new Congress was March 4, a tradition dating back to the Articles of Confederation. The late winter date accommodated 18th and 19th-century Members who relied on primitive means of transportation to reach the capital city. . . . Reformers eventually sought an amendment to push back the start date to early January in order to shorten the “lame duck” session in election years (November to the following March). In 1923, Senator George Norris of Nebraska authored the initial resolution that provided the basis for the 20th Amendment. Nearly a decade later, Congress approved the amendment and the states swiftly ratified it.”

The Amendment also stipulated that the terms of the President and Vice President shall end at noon on the 20th day of January.

You can read the text of the 20th Amendment here.

June 30, 1971 – 26th Amendment to the U.S. Constitution Ratified

On this day in history, the 26th Amendment to the U.S. Constitution lowered the voting age to 18, in response to arguments that those old enough to serve in the military should be able to vote on issues that would literally affect their lives.

As the U.S. House of Representatives history website relates:

Congress first lowered the voting age as part of the Voting Rights Act of 1970. The Supreme Court upheld the legislation in a 5 to 4 vote in applying the lowered voting age to federal elections only. A constitutional amendment was required to uniformly reduce the age to 18. Endorsed by Speaker Carl Albert of Oklahoma, the amendment passed the House by a vote of 401 to 19, on March 23, 1971. The state legislatures in Ohio and North Carolina were the last to approve the amendment before official ratification took effect on July 1, 1971. With the 1972 elections looming, the 26th Amendment was ratified in record time. The Richard M. Nixon administration certified it four days later on July 5.”

The Amendment added 10 million new eligible voters, increasing the overall voting pool nationally by 8 percent. In some college communities student voters had the potential to make up over one-third of the actual voting block. However, as Thom File writing for the U.S. Census reports:

In every presidential election since 1964, young voters between the ages of 18 through 24 have consistently voted at lower rates than all other age groups, although young-adult voting rates have fluctuated from one election to another.”

Data from U.S. Census Bureau

In 2020, according to the Brookings Institution, there was a surge in young adult voter turnout: “younger age groups showed the greatest turnout increase in that election, rising by 8 points for those aged 18 to 29. In total, over half of these young adults turned out to vote.”

via Brookings Intitution

March 29, 1961 – 23rd Amendment Ratified Giving D.C. Residents Right to Vote in Presidential Elections

On this day in history, the necessary number of states ratified the 23rd Amendment, which gave residents of the District of Columbia the right to vote in presidential elections.

As the New York Times reports, opposition to political power for residents of D.C. originated in white opposition due to the increasing number of residents who were African-American; the capital became the nation’s first majority-black large city in the late 1950s.

In fact, as the New York Times points out:

. . . even the relatively uncontroversial 23rd Amendment could not be ratified in most of the South. The only former Confederate state to ratify was Tennessee. In North Carolina, a segregationist organization called the amendment ‘another effort to strengthen the National Association for the Advancement of Colored People.’”

Today, blacks are no longer a majority but a plurality in D.C. (2021 census estimates put the demographics at “Black or African American”: 46.31% versus “White”: 41.27%.)

D.C. had an estimated population of 714,153 in 2021, which makes it the 22nd most populous city in the U.S. If Washington, DC were a state, it would be the 49th most populous ahead of Wyoming and Vermont.

Nevertheless, the population still has limited rights vis-a-vis other U.S. citizens:

They are represented by a lone House delegate with limited voting rights. Even their hold on home rule, granted at last in 1973, is tenuous. City budgets require approval by Congress, and Republican lawmakers have overruled or threatened local decisions on issues like needle exchange, gun control, same-sex marriage and abortion.”

As “Real Clear Politics” explains, in 1978, a new amendment was approved by Congress to repeal the 23rd Amendment and replace it with a provision that would grant full voting rights to the District of Columbia, with representation in Congress as well as the Electoral College. The amendment was ratified by only 16 states, mostly Northeastern Democratic strongholds.

“Real Clear Politics” contends that opposition to greater autonomy for D.C. is not because of race per se, but the fact that most of the population of D.C. votes Democrat.

The Washington Post noted in July 2019 that a new Gallup poll found that nearly two-thirds of Americans opposed D.C. statehood:

The poll comes as Eleanor Holmes Norton, the District’s nonvoting delegate, and city officials have been trying to build national support for statehood, framing it as a civil rights issue and arguing that the city’s 700,000 residents are disenfranchised because they lack voting representation in Congress. . . . She noted that the poll did not include the fact that D.C. residents pay the highest federal taxes per capita in the nation. ‘Yet every American agrees that taxation without representation, which led to the creation of our nation, is wrong,’ she said in a statement Monday.”

The same poll found 74 percent saying they are upset that District residents do not have a voting representative in Congress; about half were very upset about it. A 71 percent majority said Congress has too much control over the city’s affairs. It is not clear those being polled understood the issue.

April 8, 1913 – Seventeenth Amendment Wins Approval of Required Three-Fourths of State Legislatures

Before the passage of this amendment, U.S. senators were selected by state legislatures as directed by Article I, Section 3 of the Constitution, which holds that “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.”

A number of problems arose from this method, including political wrangles that led to seats going empty for long periods. Support gradually increased for the direct election of senators by the voters.

The first change came in 1866, when Congress passed a law regulating how and when senators would be elected in each state. But it did not solve the problem entirely. As the Senate Historical Office observes:

Intimidation and bribery marked some of the states’ selection of senators. Nine bribery cases were brought before the Senate between 1866 and 1906. In addition, forty-five deadlocks occurred in twenty states between 1891 and 1905, resulting in numerous delays in seating senators. In 1899, problems in electing a senator in Delaware were so acute that the state legislature did not send a senator to Washington for four years.”

Each year from 1893 to 1902, they report, a constitutional amendment to elect senators by popular vote was proposed in Congress, but the Senate fiercely resisted change.

In the early 1900s, states started to initiate changes on their own. Momentum for reform on the national level increased. William Randolph Hearst got into the game, championing the cause of direct election with muckraking articles and strong advocacy of reform. The Senate Historical Office related what happened next:

Hearst hired a veteran reporter, David Graham Phillips, who wrote scathing pieces on senators, portraying them as pawns of industrialists and financiers. The pieces became a series titled ‘The Treason of the Senate,’ which appeared in several monthly issues of the magazine in 1906. These articles galvanized the public into maintaining pressure on the Senate for reform.”

By 1912, as many as twenty-nine states elected senators either as nominees of their party’s primary or in a general election. But a constitutional amendment was still required for a nationwide direct election process.

In 1911, Senator Joseph Bristow from Kansas offered a resolution proposing a constitutional amendment, and gained support from others who had come to the Senate via direct election. After the Senate passed the amendment, it went to the House, where it was finally approved in the summer of 1912 and sent to the states for ratification.

Connecticut’s approval gave the Seventeenth Amendment the required three-fourths majority, and it was added to the Constitution on this date in 1913. It was declared part of the Constitution, the 17th Amendment, on May 31 by Secretary of State William Jennings Bryan.

The following year marked the first time all senatorial elections were held by popular vote.

The Seventeenth Amendment restates the first paragraph of Article I, section 3 of the Constitution and provides for the election of senators by replacing the phrase “chosen by the Legislature thereof” with “elected by the people thereof.” In addition, it allows the governor or executive authority of each state, if authorized by that state’s legislature, to appoint a senator in the event of a vacancy, until a general election occurs.

March 30, 1870 – Ulysses S. Grant on the Passage of the Fifteenth Amendment

President Grant was a champion of black rights; indeed, Frederick Douglass himself, who knew both Lincoln and Grant, thought more of Grant in some ways, saying of Grant after his presidential term:

To him more than any other man the Negro owes his enfranchisement and the Indian a humane policy. In the matter of the protection of the freedman from violence his moral courage surpassed that of his party; hence his place as its head was given to timid men, and the country was allowed to drift, instead of stemming the current with stalwart arms.”

The Fifteenth Amendment to the Constitution granted blacks, now free from slavery, the right to vote, declaring that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” It was passed by the House of Representatives on February 25, 1869, and the Senate on February 26, 1869. It was ratified on February 3, 1870.

President Ulysses S. Grant

Grant was so pleased with its passage that he issued a special message to Congress, beginning by observing that “It is unusual to notify the two Houses of Congress by message of the promulgation, by proclamation of the Secretary of State, of the ratification of a constitutional amendment.” But he felt the momentous occasion merited special notice:

In view, however, of the vast importance of the fifteenth amendment to the Constitution, this day declared a part of that revered instrument, I deem a departure from the usual custom justifiable. A measure which makes at once 4,000,000 people voters who were heretofore declared by the highest tribunal in the land not citizens of the United States, nor eligible to become so (with the assertion that ‘at the time of the Declaration of Independence the opinion was fixed and universal in the civilized portion of the white race, regarded as an axiom in morals as well as in politics, that black men had no rights which the white man was bound to respect’), is indeed a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present day.”

He concluded with a plea that continues to have urgency today:

I would therefore call upon Congress to take all the means within their constitutional powers to promote and encourage popular education throughout the country, and upon the people everywhere to see to it that all who possess and exercise political rights shall have the opportunity to acquire the knowledge which will make their share in the Government a blessing and not a danger. By such means only can the benefits contemplated by this amendment to the Constitution be secured.”

You can read the entire text of his message here.

February 7, 1795 – 11th Amendment to the U.S. Constitution Ratified in Aftermath of Supreme Court Decision of Chisholm v. Georgia

On February 7, 1795, the 11th Amendment to the United States Constitution took effect with ratification by North Carolina. Adopted in the aftermath of the US Supreme Court’s ruling in Chisholm v. Georgia, the amendment limited the jurisdiction of the federal courts to automatically hear cases brought against a state by the citizens of another state.

In 1777, the Executive Council of Georgia had authorized the purchase of supplies from a South Carolina businessman. The supplies were delivered to Georgia, but the state did not deliver payments as promised. After the merchant’s death, the executor of his estate, Alexander Chisholm, took the case to the Supreme Court in an attempt to collect from the state. Georgia maintained that it was a sovereign state not subject to the authority of the federal courts.

[Article II, Section 3 of the Constitution held – before the 11th Amendment – that the Supreme Court would have jurisdiction in cases arising from controversies between a state and citizens of another state.]

In Chisholm v. Georgia (2 U.S. 419, 1793), the Supreme Court, by a vote of four to one, rejected Georgia’s assertion of sovereign immunity as a defense against a suit in federal court for breach of contract brought against it by a citizen of another state. The majority held that supreme or sovereign power was retained by citizens themselves, not by the “artificial person” of the State of Georgia. State conduct was subject to judicial review.

Justice James Wilson, one of the Founding Fathers, wrote in his separate opinion:

A State, like a merchant, makes a contract. A dishonest State, like a dishonest merchant, willfully refuses to discharge it: The latter is amenable to a court of justice: Upon general principles of right, shall the former when summoned to answer the fair demands of its creditor, be permitted, Proteus-like, to assume a new appearance, and to insult him and justice, by declaring ‘I am a Sovereign State?’ Surely not.”

Justice James Wilson

Like Justice Wilson, Chief Justice John Jay, in his separate opinion, affirmed the “great and glorious principle, that the people are the sovereign of this country. . . . ” Furthermore, denying individuals the right to sue a state “would not correspond with the equal rights we claim; with the equality we profess to admire and maintain, and with that popular sovereignty in which every citizen partakes.”

Alas, the states didn’t like that answer.

As Justice Felix Frankfurter later noted in a federal sovereign immunity case, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 708 (1949) (dissenting), “The vehement speed with which the Eleventh Amendment displaced the decision in Chisholm v. Georgia . . . proves how deeply rooted that doctrine was in the early days of the Republic.” [That is, the doctrine of “unquestioned acceptance of the sovereign’s freedom from ordinary legal responsibility,” or as Frankfurter also phrased it, “legal irresponsibility.”]

Justice Felix Frankfurter

The amendment was passed on March 4, 1794 by the House, and ratified on February 7, 1795, when the twelfth State acted, there then being fifteen States in the Union.

On January 8, 1798, approximately three years after the Eleventh Amendment’s adoption, President John Adams stated in a message to Congress that the Eleventh Amendment had been ratified by the necessary number of States and that it was now a part of the Constitution of the United States. New Jersey and Pennsylvania did not take action on the amendment; neither did Tennessee, which had become a State on June 16, 1796.

You can see an extensive discussion of the legislative and judicial history of the Amendment in a Cornell University Law School Annotation, here.

For an interesting interpretation of Chisholm and its individualist theory of popular sovereignty, see Randy E. Barnett, “The People or the State?: Chisholm v. Georgia and Popular Sovereignty” (93 Va. L. Rev. 1729-1758, 2007). (This paper can be downloaded free of charge here.) His conclusion is striking:

If nothing else, Chisholm teaches that the concept of sovereignty as residing in the body of the people, as individuals, was alive at the time of the founding and well enough to be adopted by two Justices of the Supreme Court, who were also influential Founders. Likewise, Chisholm shows that the bold assertion that states inherited the power of kings (subject only to express constitutional constraints) was rejected by four of five Justices when the issue first arose. By omitting Chisholm v. Georgia, the first great constitutional case, from the canon of constitutional law, we have turned our gaze away from perhaps the most fundamental question of constitutional theory and the radical way it was once answered by the Supreme Court. We law professors have hidden all this from our students; and by hiding it from our students, we have hidden it from ourselves.”

December 15, 1791 – Congress Ratifies the Bill of Rights, Thanks in Part to George Mason

One of the people most responsible for the Bill of Rights – ratified on this day in history – is generally forgotten in the invocation of our pantheon of Founders, and that is George Mason.

George Mason

Jeff Broadwater has written a biography of Mason (George Mason: Forgotten Founder, 2006) in which he attempts to educate us on Mason’s role.

Broadwater points out the following:

  • Mason was a mentor to George Washington.
  • Mason took the lead in drafting Virginia’s first state constitution and its famous Declaration of Rights, which influenced not only Thomas Jefferson (he adopted the second paragraph for the Declaration of Independence) but all constitution writers who followed.
  • He was one of the most respected delegates to the Convention and had a great influence on the shape of the emerging government. (Notably, Mason shared Adams’ fear of unchecked government because he feared corruption in the political process.)
  • Mason’s insistence at the Philadelphia Convention of 1787 that a bill of rights be appended to the federal Constitution is routinely credited with initiating the movement that culminated in the first ten amendments, known as The Bill of Rights.

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Why don’t we know more about Mason? Broadwater argues (1) Mason refused to sign the Constitution because he thought it failed to protect the interests of minorities, and because he could not in good conscience endorse the expansion of slavery (although he was not an abolitionist); (2) Mason died in 1792, and thus did not play a major role in the new government; and (3) Mason himself had a reluctance to seek the historical spotlight.

[On the matter of slavery, Mason was a slaveholder himself, but opposed it for economic reasons. His view was that land was being cleared and planted with tobacco faster than the market for it could expand, meaning that its price would drop even as more and more capital became tied up in land and slaves. Moreover, such a system would result in a huge future slave population in Virginia, which could only cause trouble.]

We owe him a great deal, however, and it is therefore appropriate we remember him on this anniversary of the nation’s adoption of the first ten amendments.

(Of the original twelve, Articles 3-12 were ratified. Accordingly, in 1791 these articles became the first ten amendments to the Constitution…..known collectively as The Bill of Rights.)

Here are the original twelve amendments as they appear in The Laws of The United States of America, printed by Richard Folwell, Philadelphia, in 1796.

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January 21, 1815 – Birth of John Bingham, Author of the Fourteenth Amendment

John Bingham was an important figure in the formation of the laws of the U.S. who deserves more recognition.

Bingham was born on January 21, 1815 in Pennsylvania, moving to Ohio to live with his uncle after the death of his mother. In 1835, he enrolled at nearby Franklin College, founded by abolitionist John Walker who was also a member of the Underground Railroad. One of Bingham’s classmates was Titus Basfield, an ex-slave and one of the first African-Americans to receive a college degree in Ohio. The two developed a friendship that lasted for over forty years.

But Bingham had already been steeped in abolitionist influences, as he indicated in 1862 after calling chattel slavery “an infernal atrocity”: “I thank God that I learned to lisp it at my mother’s knee.” In addition, both his father Hugh and his uncle Thomas Bingham were active in abolitionist political circles.

Bingham got a law degree and became active in the Whig Party. In 1848 he served as a delegate at the Whig National Convention where he tried to introduce a platform plank that would commit Whig candidates to resist any extension of slavery to the territories.

John Bingham

With the dissolving of the Whig Party in 1854, Bingham joined the new Republican Party, and was elected to Congress. There he established himself as one of the leading congressional voices against slavery. As Leslie Goldstein explains in “The Birth and Rebirth of Civil Rights in America,” (50 Tulsa L. Rev. 317, 2015), Bingham’s publicly stated views were not as strident at the start of his career. But after the 1854 Kansas-Nebraska Act was passed, he became more vocal. And in January 1857, shortly before the Dred Scott decision, he articulated his belief that the Fifth Amendment Due Process Clause meant no person could be deprived of liberty without the kind of process involved in trials for crimes, “and since the Constitution everywhere referred to slaves as persons, Congress had been obligated since 1789 to forbid slavery in carrying out its power to admit new states.” Bingham argued, Goldstein reports, that the “primal object” of the Constitution “must be to protect each human being within its jurisdiction in the free and full enjoyment of his natural rights,” and “the equal protection of each” is a “principle of our Constitution.”

In a different speech reported by Professor Gerard Magliocca in his biography of Bingham, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment, Bingham said: “You will search in vain in the Constitution of the United States … for that word white, it is not there . . . The omission of this word — this phrase of caste — from our national charter, was not accidental, but intentional.” He added, “Black men … helped to make the Constitution, as well as to achieve the independence of the country by the terrible trial of battle.”

Congressman John A. Bingham during the Civil War. Photo by Matthew Brady

When the secession crisis began, Bingham asked the House, “What just cause of complaint has the South, or any portion of her people, against this Government? There is none.” The only injustice that could justify a revolt was that “wrong which dooms four million men and their descendants forever to abject servitude.”

But support for the war ebbed in the North, and Bingham, in the Lincoln pro-war faction, lost his seat in the 1862 elections.

Three years later, he was re-elected in the wave of pro-Lincoln sentiment that swept the country in the fall of 1864. When Lincoln was assassinated, Bingham served as one of the three military prosecutors of John Wilkes Booth’s co-conspirators, where he gave the closing argument in one of the most sensational trials of the 19th century.

John Bingham (left) along with Joseph Holt (center) and Henry Burnett (right) were the three prosecutors in charge of the Lincoln assassination trial.

In 1865, Bingham received a coveted position on a joint committee charged with setting the conditions for the South’s return to the Union. Most significantly, Bingham drafted the crucial language of that 14th Amendment. It is Bingham who is responsible for the words:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Bingham pointed out that this proposal was simply an amalgam of the fifth amendment and the privileges and immunities clause contained in article IV, section 2, coupled with a grant of power to Congress to enforce them. Bingham added that while these obligations already rested on the states, state officers of the southern states had habitually disregarded them.

This sentence would come to be the legal basis for the Supreme Court’s subsequent decisions desegregating the public schools, securing equality for women, and creating the right to sexual privacy.

In an eloquent speech to Congress given by Bingham on February 28, 1866, Bingham explained the need for and purpose of the 14th Amendment, and countered arguments against it:

The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution? That is the question, and the whole question. The adoption of the proposed amendment will take from the States no rights that belong to the States. They elect their Legislatures; they enact their laws for the punishment of crimes against life, liberty, or property; but in the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for the violation of their oaths and of the rights of their fellow‐men. Why should it not be so? That is the question.”

Professor Magliocca avers that more than any man except Abraham Lincoln, John Bingham was responsible for establishing what the Civil War meant for America’s future.

Yale Law School professor Akhil Reed Amar offers this assessment of Bingham’s contribution:

It was Bingham’s generation that in effect added a closing parenthesis after the first eight . . . amendments, distinguishing these amendments from all others. As a result, Americans today can lay claim to a federal Bill of Rights set apart from everything else, and symbolically first even if textually middling.”

Writing in McCreary County, Kentucky v. American Civil Liberties Union of Kentucky (545 U.S. 844, 2005), Justice David Souter characterized the Fourteenth Amendment as “the most significant structural [constitutional] provision adopted since the original Framing.”

Other Supreme Court Justices, such as Hugo Black, have praised Bingham directly. Justice Black quoted Bingham extensively in his dissent in Adamson v. California (332 U.S. 46, 1947), observing “Bingham may, without extravagance, be called the Madison of the first section of the Fourteenth Amendment.” This particular reference is important because Black also incorporates a detailed legislative history of the formulation of that amendment by Bingham in the same dissent.

Professor Magliocca reported further in a New York Times piece on Bingham:

When the ex-Confederate States refused to ratify the 14th Amendment, Bingham crafted a legislative compromise that ordered the Union Army to organize new elections across the South that would include African-Americans. He told the House that ‘unless you put [the South] in terror of your laws, made efficient by the solemn act of the whole people to punish the violators of oaths, they will defy your restricted legislative power when reconstructed.’

Sadly, of course, this kind of bitter resistance was the norm until The Rev. Dr. Martin Luther King Jr. led the civil rights movement to victory in the 1960s, but Bingham did his best to prevent that outcome.”

Harper’s Weekly 1868 sketch of John Bingham and Thaddeus Stevens before the Senate addressing the vote on President Andrew Johnson’s impeachment by the House of Representatives

Bingham served in Congress until 1873, and then was appointed by President Grant as the American ambassador to Japan, serving for 12 years before retiring to Ohio. He died in 1900, with few today but legal scholars aware of his name and the significance of his achievements.

Tom Donnelly, a Senior Fellow For Constitutional Studies at the National Constitution Center, lamented in a tribute to Bingham on the 150th anniversary of the 14th Amendment:

Professor Akhil Amar once observed, ‘Many of us are guilty of a kind of curiously selective ancestor worship—one that gives too much credit to James Madison and not enough to John Bingham.’  Even as Madison is often labeled the ‘Father of the Constitution’ and recognized as the primary author of the Bill of Rights, most Americans ignore the Second Founder who most worked to realize the universal promise of Madison’s Bill and Jefferson’s Declaration.  With the Fourteenth Amendment set to turn 150, the time has come to change that.”

March 2, 1861 – President Buchanan Signs the Corwin Amendment to Protect Slavery

On this date in history, President James Buchanan affixed his signature to a proposed amendment to the United States Constitution passed by the 36th Congress. If ratified, the amendment – to be the 13th – would have shielded “domestic institutions of the states” (i.e., slavery) from the constitutional amendment process and from abolition or interference by Congress. Specifically, it read:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”

Over 200 resolutions dealing with slavery were proposed in the 36th Congress, most having the intent of averting a Civil War. This particular amendment was introduced by Representative Thomas Corwin of Ohio in the House of Representatives and Senator William H. Seward of New York in the Senate. The House approved Corwin’s text on February 28, 1861, and the Senate adopted it with no changes on March 2, 1861. Outgoing President James Buchanan signed it the same day.

Representative Thomas Corwin, 1831-1840 and 1859-1862

Representative Thomas Corwin, 1831-1840 and 1859-1862

Abraham Lincoln, in his first inaugural address, said of the Corwin Amendment:

I understand a proposed amendment to the Constitution—which amendment, however, I have not seen—has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service….holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.”

Although we like to pretend this particular 13th Amendment never was passed, and/or never endorsed by Lincoln, in fact both events occurred. History professor Daniel Crofts has argued that Lincoln wished, in his inaugural address, to challenge the key Southern claim that the North was bent on destroying slavery.

Abraham Lincoln delivered his first Inaugural Address on the East Portico of the Capitol

Abraham Lincoln delivered his first Inaugural Address on the East Portico of the Capitol

Ohio and Maryland’s legislatures ratified the amendment and Illinois’ state constitutional convention did the same. Had the Civil War not intervened, the proposed 13th Amendment would likely have been ratified by the required three-quarters of the states.

June 15, 1804 – Ratification of the Twelfth Amendment to the U.S. Constitution

On this day in history, the Twelfth Amendment was officially adopted, creating separate votes in the electoral college for President and Vice-President. The Amendment was a response to the elections of 1796 and 1800, during which problems arose because of the system of voting as laid out in Article II, Section 1, Clause 3 of the Constitution.

According to the original procedure for the Electoral College, each elector could vote for two persons. The person receiving the greatest number of votes – provided that number equaled a majority of the electors, was elected President. Whichever candidate received the second greatest number of votes became Vice President.

Complications developed almost immediately. In the 1796 election, John Adams, the Federalist Party presidential candidate, received a majority of the electoral votes.

John Adams

John Adams

However, the Federalist electors scattered their second votes, resulting in the Democratic-Republican Party presidential candidate, Thomas Jefferson, receiving the second highest number of electoral votes and thus being elected Vice President. Jefferson was a political opponent of Adams, and encouraged opposition to the Adams Administration, even while serving in it. Jefferson even secretly undermined the Administration, such as when he surreptitiously authored the Kentucky Resolutions of 1798, arguing that the states can judge the constitutionality of acts of Congress and the President, and that each individual state has the power to declare federal laws null and void.

Thomas Jefferson

Thomas Jefferson

The 1800 election was even more problematic. After 35 votes, neither Democratic-Republican Thomas Jefferson nor Federalist Aaron Burr had a majority. After much intrigue and arguing, Alexander Hamilton, who despised Burr, convinced a few Federalists who had supported Burr in the balloting to turn in blank ballots rather than vote for either Republican candidate. This move gave the victory to Jefferson. [Unfortunately for Hamilton, Jefferson was an even more devious enemy than Burr, although it was Burr who ended up killing Hamilton in a duel several years later. With Hamilton out of the way, Jefferson lost no time turning his sights onto Burr.]

Aaron Burr

In any event, it was becoming increasingly clear that the system originally defined by the Constitution was not workable. By having the president and vice president elected on a party ticket, the problems would be minimized, and so there was widespread support for the Twelfth Amendment.

There is some controversy over the date this Amendment became law. On June 15, 1804, the legislature of the thirteenth state (New Hampshire) approved the amendment. But the Governor of New Hampshire vetoed this act of the legislature on June 20th, and the act failed to pass again by a two-thirds vote then required by the New Hampshire state constitution.

Article 5 of the Federal Constitution specifies that amendments shall become effective “when ratified by the legislatures of three-fourths of the several States or by conventions in three-fourths thereof,” so it has been generally believed that an approval or veto by a governor is irrelevant. But if the ratification by New Hampshire was deemed countermanded, then the amendment became operative by Tennessee’s ratification on July 27, 1804.

On September 25, 1804, in a circular letter to the Governors of the several States, Secretary of State James Madison declared the amendment ratified by three-fourths of the states.

James Madison

James Madison

You can read the text of the Twelfth Amendment here.