The first 10 amendments to the US Constitution could have been an addendum to the US Constitution. With the idea that the Bill of Rights could have been added as an Addendum to the US Constitution, my notes on the remaining 17 amendments are as follows. My notes are regarding the notes on the official transcript by the National Archives.
For reference, the US Constitution is broken down into the following sections
- Article 1 – Congressional Powers
- Article 2 – Executive Powers
- Article 3 – Judiciary Powers
- Article 4 – States
- Article 5 – Amendments
- Article 6 – Laws, Debts and Agreements
- Section 7 – Ratification and signatures
Amendment 11 – This amendment was written in 1790 when the word state was used to refer to a nation and that is evident in the amendment itself through use of the words “Foreign State”. Back in 1790, the United States were looked at like a group of countries functioning in a similar manner to the way the European Union works today. The agreement in this amendment is that the US Judiciary will not have jurisdiction in lawsuits or criminal proceedings commenced against a US Citizen, US State or the US Government itself by another “state” or foreign nation. Back then, it was thought that a State could be run by a foreigner and function as an overseas territory of another nation. However, that is not the case and that type of argument would not stand in an international court without a foreign nation annexing a part of the USA; at that point, that particular state would no longer be covered by the US Constitution as it would be under the jurisdiction of a foreign nation.
The agreement in the amendment that lawsuits and criminal proceedings against a US Citizen, US State or the US Government initiated by a foreign nation would not be under the jurisdiction of the US Judiciary would be valid. That is how international law works today for travelers. Travelers are required to follow the laws of the nations they are visiting and must go to local courts using the legal processes established in the foreign nation. Traveler’s do not get to refer to the US Constitution for a legal defense in foreign nations unless there is a treaty between that nation and the US Government explicitly stating that a limited subset of constitutional rights will be allowed for visitors from the US holding a valid US Passport.
There is no agreement in the amendment that the proceedings brought by a foreign nation have to be held in the United States. Doing so would make the foreign court subordinate to the Supreme Court which may carry other international implications. This provides protection for US Citizens as they can not be tried in a foreign court without due process, without being served notification and without being present unless they have acquired an attorney to be present for them. Outside the US, having a public defender or state sponsored attorney is not a guaranteed right. In the light of internet laws, this amendment allows foreign courts to prosecute US Citizens but it does not give foreign courts jurisdiction over US Citizens. For example, if a server where setup in the USA and China could access it to obtain content censored by the Chinese Government, the USA, a US State or the US Citizen would not be liable. However, if a US Citizen traveled to China or remotely setup a server in a Chinese data center broadcasting content restricted in China, the US Citizen could definitely have their data confiscated and charges filed against them and the US Supreme Court would not be able to have jurisdiction over the court proceedings or to intervene beyond assigning a Congressperson, Ambassador, Senator or US Attorney to represent them in Chinese Court. This is consistent with international law, conventions on State Sovereignty (Sovereignty of Nations), international treaties and rulings at the international court and it would makes sense that the amendment was drafted in this light.
For thoroughness, It would not make sense that the US Judiciary would not have jurisdiction over a lawsuit or criminal proceeding involving a State and citizens of another state within the USA as this has the potential to cause an insurrection and allows for mutiny or a coup within the US Armed Forces using the National Guard as a vector to create a pivot point, the Founding Fathers were great tacticians and counter tacticians and there were no Geneva Conventions delineating the difference between civilian and armed forces or between combatant and non combatant in 1790 . If the intent of the amendment was to give State level courts jurisdiction over criminal proceedings and lawsuits initiated by citizens of another state rather than the Supreme Court and its National Judiciary then this amendment would have stated that it was an amendment to Article 4 of the US Constitution. However, even if this amendment had amended Article 4 and given the States jurisdiction over cases between a State and citizens of another State, the Supreme Court would continue to have jurisdiction over the lower courts and any amendment stating anything to the contrary would not prevail per Article 6 of the US Constitution.
In my view, the National Archives assessment of that the amendment modifies Article 3, Section 2 is correct but the portion that it modifies is incorrect in my opinion. The amendment only gives foreign courts jurisdiction and ability to prosecute US Citizens, it does not remove the Supreme Court or their subordinate courts from matters where they have proper jurisdiction such as in cases where a foreign national violates US Law while in the USA or one of its territories. This article would makes most sense inserted between paragraph 2 and 3 of Article 3, Section 2.
Inserting the amendment in another section or removing Supreme Court jurisdiction over matters between two states (including their citizens) would create a conflict of interest with Article 3, Section 1 and with Article 6, paragraph 2 of the US Constitution. According to contract severability law and the US Constitution itself, if the amendment were to remove Supreme Court jurisdiction between a State and Citizens of another State, the amendment would not prevail and would be null and void or the part that would remain valid would be the portion where the US Judiciary would not have jurisdiction over criminal or civil proceedings initiated by a foreign nation. Therefore, I disagree with the National Archives findings and stand by my statements on the meaning of the amendment.
The intent of this amendment was to affirm that foreign courts have jurisdiction over criminal proceedings and lawsuits initiated against a US Citizen, US State or US Government, however under current international laws those proceedings would be held in foreign courts and due process and proper notification would have to be given to the accused.
Amendment 12 – I agree that the 12th amendment modified Article 2, Section 1 Paragraph 3 of the US Constitution. However, it did not modify the entire paragraph. Many of the the terms stayed the same.
- The amendment clarified that each elector would have 2 votes but that 1 vote would be for President and 1 vote would be for Vice-President.
- The amendment changed the Presidential “vote by ballot” by the House of the People’s Representatives from 5 candidates to 3 candidates. This would be in conflict with the US Constitution and would be severable or the entire amendment would be null and void.
- The amendment gave the House of the People’s representative until the March 4th following the election to choose a President and declared the existing Vice President would become Vice President if a choice is not made by then.
- It clarified that the Vice President is chosen by the greatest number of votes of the Electors and not the 2nd highest vote from the House of the People’s Representatives vote by ballot. It also restated that the Senate is to vote for Vice President if no Vice President candidate has a majority.
- It added terms for a quorum in choosing a Vice President by ballot similar to the one that already existed for choosing a President by ballot.
Amendment 13 – I disagree that this article modified, superseded or repealed Article 4, Section 2. Section 1 of the amendment would be inserted into Article 4, Section 1 and is not in conflict with Article 4, Section 2, Paragraph 3. Section 1 of the amendment states that involuntary labor and slavery is restricted to punishment for a crime and is to be inserted into Article 4, Section 1. This was possibly done to give precedence to that text over the text in Section 2. However, inserting Amendment 13, Section 1 as the last paragraph in Article 4, Section 2 would not modify the meaning or intent and from a contract organization view, it is most appropriately inserted beneath the last paragraph of Article 4, Section 2.
The US Constitution states that a person under an employment contract in one state that leaves that state will not have their contract annulled when they leave. It also states that the party due labor under the employment contract will be able to make a claim on the person in breach of the employment contract. This is different and in contrast to slavery or forced labor where the laborer does not receive compensation for their work.
Amendment 13 allows slavery and forced labor as a punishment for crime. Today, this is most often used as alternative sentencing where a person convicted of a crime can choose to work without pay as an alternative to jail time and fines. However, the term “slavery” or “forced labor” is not forced in this context as the convicted person has the option to withdraw from their labor sentencing to complete their jail time and pay fines for the crimes they committed.
In my opinion, the original terms of Article 4 remain in tact and Amendment 13 adds additional terms and clarification. It also gives Congress the power to legislate these terms into the US Code. It is implied that the States would be able to legislate this into their Penal Codes as well as long as there is no conflict with legislation passed by Congress.
Side Note: Regarding labor as punishment for crime, one complaint from employees at establishments (business, non-profit, government agencies) is that the labor is often priced at a much higher rate for criminals. So where an employee would make $12/hr or $120 dollars for a 10 hour shift, a criminal would only have to do 3 hours of labor for a $120 ticket bringing the criminals effective rate of pay to $40 per hour. Employees often find this to be unfair and a violation of their economic freedoms as well as Equal Pay for Equal Work legislation.
Amendment 14 – Each section in Amendment 14 added terms to the existing sections of Article 1 of the US Constitution. Section 2 of the amendment creates a conflict with Article 1 section 2 however so should be severable or the entire amendment should be null and void.
In regards to the conflict between Amendment 14, Section 2 and Article 1, Section 2
- Representatives do not get to represent “Indians” not taxed. The term Indian was used to describe people that were native to the land which today would be considered large property owners. One could be a Native and a Citizen, only a Citizen or only a Native in those days. Today, most natives would be considered people who have been US Citizens for at least 3 generations and own large swaths of private land, those who have legitimate and verifiable ancestral rights to land and agriculture within the US or those that are part of a Federally Recognized Native American Tribe. From those groups of people, those who do not pay taxes do not get representation in Congress; however, there are still methods to address grievances with the US Government through international courts or directly with the Federal Government.
- The US Constitution counts Armed Service Members who are deployed elsewhere as part of a State’s apportionment and the 14th Amendment omits this which is a conflict making this severable or the entire amendment null and void.
- The US Constitution only counts free persons as eligible for being fully included as part of the apportionment. Free person had a meaning back then that today would mean U.S. Citizen because in 1787, being free of debts and bondages was a pre-requisite to becoming a US Citizen and the intent was that after a few generations, only U.S. Citizens would be counted as free persons since they have privileges and immunities that the States can not infringe upon whereas the state can make rules and regulations for travelers, visitors or for visa holders. The amendment was written in 1868 omitted the term “free persons” and replacing it with persons. however, this creates a conflict and would make this part of the amendment severable or the entire amendment null and void.
- People who live in the United States who are not free persons only get 60% representation in Congress. This is normally done only for issues that affect them. As they are not US Citizens and do not have constitutional rights, they do not have a right for a redress of grievances with the US Government. They can not vote for Representatives, for President or for Vice President. However, if the Federal Government wanted to present a few options to communities on how to best handle a situation that affects them, the total of their votes would be reduced by 60% and US Citizens can vote alongside with them counting at a 100% vote.
Amendment 15 – This amendment could have modified section 1 and section 2 of Article 1 of the US Constitution or it could have amended the addendum “Bill of Rights”. Either format would be clear and have the same meaning.
The 15th amendment affirmed that US Citizens have a right to vote regardless of their ethnic origins, vision for the future, skin color or previous status as a slave, indentured servant or forced laborer.
Note: According to Oxford, the word race had 2 different meanings in 1870
- rás – an old norse race from the 15th century meaning a rapid move forward (through time, like the currents of a river).
- razza – a french word from the early 16th century meaning ancestry or common ethnic origins.
In 1870, the meaning of the two words had become intertwined into the word race because it was seen that an ethnic group would be moving through time with similar goals in mind, on the same path and with the same vision for the future.
These are the final amendments to the US Constitution prior to the start of World War 1.