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When we began this project, we all had a
lot of questions. We
thought you might, too. Here, in brief form, are some of the answers. For
in-depth answers, additional links are provided.
More questions? Join the Project 13 Listserv for ongoing discussion of Article
XIII.
How could a whole amendment just get "lost"?
That question has taken many years to answer. The chain of
events goes something like this:
Congress proposes the amendment, and states begin ratifying
it. The nation goes to war, then returns to business as usual. Three
states are slow to answer congressional requests for their final decision, but
there is no time limit imposed for ratifying. One state rejects, one makes no decision,
one does not answer when finally asked. A mistaken report goes to Congress, claiming two have
rejected and the third hasn't answered. Consequently, the newspapers get
the story wrong.
Later, the last state ratifies, but does so with
additional sweeping legislation published in book form,
rather than the usual letter format. The State Department never does
correct its records, but the states don't notice, and go right ahead with
publishing the amendment. Years later, a prominent jurist writes a book
based on the faulty State Department records, claiming the amendment was not
ratified. That same author acts as a consultant the next time the United
States Statutes are published, years later. The amendment is removed.
A
whole generation later, even the states actually start believing the mistaken report
to Congress, because both the State Department records and the
United States Statutes are now defective. Though officially published and taught
for 67 years by the states themselves, the amendment slowly disappeared from
print, and became "lost" to later generations.
Why didn't the 13th Amendment pass the first time is was sent out?
This question has been asked many times, and is in fact a non-sequitur based on a false premise.
The 13th Amendment was issued only once; and it did pass. The 3/4ths requirement of thirteen of the seventeen States in the union as of 1810 was met on March 12th of 1819, which was just a few weeks short of nine years from its date of issuance. Considering that the War of 1812 intervened, and that in 1814 the Federalist faction convened in Hartford, Connecticut, to discuss breaking the bonds of the union, present-day Americans must be made aware of the serious difficulties that the United States faced in those days.
More than anything else, the victories of Andrew Jackson in the 1815 campaign for New Orleans, and his subsequent adventures in securing Florida as a Territory for the United States, guaranteed the preservation of the union. During the whole of Jackson's presidential administration, there were many publications of the original Thirteenth by States and Territories as a realized portion of the Constitution and our fundamental law. Only Joseph Story's work was in opposition to it.
Why did anyone think such a heavy penalty was needed in the first place?
This amendment added a heavy penalty, not
included in the original exclusion of Titles of Nobility provided in Article I,
Section 9 of the Constitution, upon any person holding or accepting a Title of
Nobility or Honour or receiving any emolument under any guise from external
sources. This measure was deemed necessary to limit and stop the corruption and
conflicts of interest that were gaining sway at that time prior to the War of
1812. Foreign interests and politics were attempting in many ways to suborn the
affairs of the United States. In that day, just as there are today, there
were unprincipled nations, corporations and men, both within and without our
Nation, seeking every means of power and control, appealing to the egos, lusts
and greed of men. The Constitution provided no means of enforcing a penalty on
their attempts to suborn our citizens and to subvert the Constitution and our
fledgling Republic. Thus the need for the Thirteenth Article of Amendment to the
Constitution as the monarchies of Europe tried to extend their hegemony over the
United States and the Western Hemisphere. A short time after the Thirteen
Amendment was ratified, President Monroe in his annual address to Congress,
December 2, 1823 enunciated the Monroe Doctrine excluding European colonization
or interference in the affairs of the Nations in the Western Hemisphere.
Why didn't Congress just pass a law imposing a penalty on violators?
At the time the United States Constitution was ratified, there was great debate over its lack of certain legal guarantees of rights for both the States and the citizenry. In fact, the Constitution itself was just barely ratified at all. There is a good deal of documented
correspondence between Madison and Jefferson, and others of the Founders on this
very subject. In the end, the Constitution was ratified with agreements
that there would be some amendments made almost immediately, and these became
the Bill of Rights. Amongst those first amendments, proposed but not
passed at the time, was the source text of the Original 13th Amendment. It
is true that Congress could have gone ahead and attempted to simply write a
penalty for violation the Constitutional prohibition against titles of nobility,
etc. However, it had already been the understanding of the States that
this amendment, along with the others, were to be ratified at the state level -
not simply decided by Congress. In those years, the understanding of limits on
federal powers were taken extremely seriously. Congress was expected to
stay within its constitutionally-mandated limits, and to go no farther.
Both the states and the general populace guarded their rights very jealously. So
within a few years, Senator Phillip Reed of Maryland proposed the article as an amendment, rather than as a federal law. The proposed amendment was very quickly accepted by Congress and passed over to the States for their approval.
Why did it take so long to ratify the 13th Amendment?
Primarily, this was because the War of 1812 intervened. If you refer to the Table of Ratifications, you will see how the legislative action slowed after the
war started, then resumed afterward.
Why don't we have a record of the ratification vote in Virginia?
This is because the ratification vote was not taken separately
from the vote passing and approving the recodification of the entire body of
Virginia law. This vote purposely encompassed all enrolled bills present in the
Assembly at that time, including the 13th Amendment. In fact, the Act of passage
was intentionally so all-inclusive, that the legislature used specific language
to include all of the many "pretermitted" bills, which is to say, all
which were not specifically listed in the Act itself.
How can we say the amendment was ratified, if we don't have the record of the vote?
If the vote were in question, that record of vote would definitely be
necessary. Article I, Section IV of the Constitution provides that the laws made
in any one state are given full faith and credit by all other states, until or
unless some irregularity opens a question which must adjudicated. In this case,
the result of the vote was quite clear, and there is no question. Due to their age, many of the oldest records of the Virginia Assembly are no
longer available. However, the record of consent by both houses of the
legislature is duly recorded and attested by the proper authorities, along with
the official printed agreement of the other states. Additionally, the very next
volume of Virginia law included all the errata from the version in question, in
order to correct any errors which may have been made. After being under
examination for a considerable period of time by the best legal minds of the
day, The 13th Amendment is not, of course, listed there. The errors, which were
errors in understanding only, crept in years later. People relying on the
federal government's incomplete records made the unfortunate mistake of assuming
the federal records were correct simply because they were federal
records. The federal government's failure to formally acknowledge Virginia's
ratification has no real bearing on the amendment's existence or legitimacy.
According to the Constitution, only the states can ratify amendments.
Why didn't John Quincy Adams announce the ratification?
The simplest answer is that Adams, then the Secretary of State, was expecting a letter or a certificate of ratification. Instead of the prompt letter he had hoped for, Adams instead received a copy of the Revised Codes of the State of Virginia - the entire book itself being a certified copy of the laws, including the original 13th Amendment. When the Revised Codes were published, the laws of Virginia also required that the book be sent to the President,
every federal judge resident in the state of Virginia, and every State and Territory in the nation. Adams might have undertaken the formality of an
announcement. In general, it does not appear to have been his habit to announce receipts of ratifications voluntarily, and especially if the Congress already knew the status because they had already received a notice from the state. In this case, the Revised Code of Virginia had already been delivered to the Congress. (See the
Table of Notifications for more information.)
While such an announcement would have saved a good deal of confusion in later years, Congress and the States had been notified of ratification by Virginia itself. It had already been held by the Supreme Court that no presidential signature was required. It has also been found by the Court that a Secretary of State, in merely announcing passage of a law, was acting merely as a clerk, and that the announcement was not necessary for the law to be enacted. John Quincy Adams, while he did no favors by failing to make the formal announcement, had no power as Secretary of State to make the law ineffective. However, Congress had passed an Act on April 20 of 1818, some 11 months before the 13th Amendment was ratified by Virginia, which required Adams as Secretary of State to make a formal announcement of all constitutional amendments. So, while his inaction could not affect the validity of the amendment itself, it did actually place him in the position of being in violation of the law. (See discussion -
Guide to the Legislative History.)
Why didn't James Monroe say anything about the
13th Amendment?
See above answer. The same applies, except that James Monroe, as President, was under no obligation of either law or tradition to personally make the announcement of ratification himself. Prior to the 13th Amendment, there had only been three times when
amendments were passed. The President of the
ratifying Convention made the announcement for the entire Bill of Rights, the President of the United States announced ratification of the 11th Amendment, and the Secretary of State announced the ratification of the 12th Amendment. However - in each case, these were announcements only. The States themselves were the only ones who could make a ratification valid, under Article V of the Constitution.
Why didn't anyone from Virginia announce the ratification?
It was not necessary for any one person from Virginia to announce anything for the law to go into effect. The entire State, embodied in the Virginia General Assembly, had made the announcement very formally by publishing and distributing the Revised Codes themselves. Thomas A. Ritchie, official
Printer to the Commonwealth and publisher of the Richmond Enquirer, also made the announcement of the publication in his newspaper. Ritchie was required by the Virginia Assembly to make note of the Debates in the House of Delegates, and his making the announcement was something more than a simple news article. Ritchie was legally charged with the responsibility of keeping and publishing accurate accounts of the proceedings of the Virginia government.
By the time the 1819 Revised Code of Virginia was published, the state
legislature passed an act requiring copies of the new law to be sent to the
President, Congress, and Secretary of State.
Why did Justice Joseph Story say the 13th Amendment wasn't ratified?
We have no particular reason to believe that Justice Story spoke anything other than what he personally believed to be the truth regarding the amendment. We do, however, have every reason to believe that Justice Story was an extremely opinionated man, and this is well evidenced by his own publications. As a sitting Justice of the U.S. Supreme Court and a professor of law at Harvard, it was both his perceived duty and his pleasure to issue opinions on many topics. However, Justice Story did not at any time have any case before him which involved the original 13th Amendment, and his books were not official government publications (actual opinions written for and by the Court are of course the exceptions).
Justice Story was a native of Massachusetts, and as such, the peculiar method of ratifying laws by publication in the State of Virginia would not necessarily fall within his notice, unless he had a case in front of him regarding that matter - which he never did. By the time Justice Story published his "Commentaries on the Constitution" in 1833, where he states his opinion of non-ratification, he could well have still been under that false assumption because of a news article published by The National Intelligencer of Washington, D.C., which stated rather boldly that the amendment had failed ratification in South Carolina. (See a report of that Article in The Niles Register.) As it happens, South Carolina had not failed the ratification. It had merely tabled the matter, but no retraction is known to have ever been published by The National Intelligencer or the Niles Register. At the time the article was published, Virginia had not yet distributed its Revised Codes.
By the time Justice Story wrote his book, the records of the State Department
still claimed that no word had been received from Virginia. The amendment was, however, published throughout the states and territories by the individual states and territories themselves - though Story makes no mention of this whatsoever. In the end, we have the result that Story's opinion, though relied on by many a lawyer, was simply that - a personal opinion.
After 1845, anyone researching by using the United States Statutes At Large would have found no reference to the 13th Amendment, but the index carried many references back to Story's
"Commentaries on the Constitution".
Why did everyone just go along with getting rid of the amendment?
This is probably a poor way to frame the question. The only way to "get rid" of a constitutional Amendment is to write a new amendment which removes it. But the amendment did disappear from publication, and it was a gradual process. It appears that various courts and attorneys, seeing one set of references, eventually influenced the States and Territories one by one to alter their printings. Some time after that began to happen, an eventual second and third amendment numbered as the 13th appeared. When the third "13th Amendment" was announced as having been ratified, it supplanted the original 13th Amendment in many places where it was still being printed. By the time the original 13th Amendment finally disappeared from view, all of the people who personally participated in its proposal and ratification were long since dead, many of the States which had originally printed it had been operating under the Confederate
Constitution for a number of years previous to that. So in those cases, there was a complete disjoint from what had
been printed while those states were part of the United States and when they rejoined the Union.
Why did some of the States go ahead and print the 13th Amendment before it was ratified?
There is only word that Pennsylvania did so, and that may well have been in anticipation that the amendment would be ratified almost immediately. This was mentioned in the Bioren and Duane edition of the United States
Statutes published in 1815, and the amendment was later printed prior to ratification by the federal government in a pocket edition of the Constitution. The rest of the States and Territories did not print the amendment until after Virginia made the ratification complete in 1819. (See the
Table of Publications.)
Why did all those states publish the 13th Amendment for so long?
They published it right along with the Constitution and Amendments 1 through 12, and for the same reason - it was the law. The story of how and why the states
stopped publishing it is the amazing story.
How did the 13th Amendment get removed from the Constitution?
That is a 28-year long story. The amendment was physically
removed in 1846, when the Little and Brown edition of the "United States
Statutes At Large" dispensed with it. They did this based on the opinion of
Joseph Justice Story, whose "Commentaries on the Constitution" was
also published by them. Once that was done, the only way to find the
amendment was to rely on both the source records in the Secretary of
States office together with the legislative records of the States. There are
many theories as to exactly why it was done, but various treatments as to
both the how and the why
of it are contained in detail in several of the articles linked from this
site. (See "Guide
to the Legislative History".)
Why didn't the people object when the 13th Amendment disappeared?
It is clear now that the people simply did not realize that the amendment had been removed. The removal was done quietly by the publisher of the 1845 United States Statutes At Large, which, while it was as official as anything ever gets, was simply not a publication read by "The People". For many years afterward, the amendment continued to be published widely in state, territorial, municipal, public school, and private books. These were what was widely read. (See the
Table of Publications.)
When did the 13th Amendment go into effect?
Constitutional Amendments go into effect on the date when they are ratified by 3/4 of the States. In this case, that date would be March 12, 1819, when Virginia ratified the amendment.
Why wasn't the 13th Amendment applied to Aaron Burr and General Wilkinson?
The dispute over charges of treason against Burr and Wilkinson predates the ratification of the 13th Amendment. And in this case, the charge was outright treason. In any case, the prohibition against titles of nobility, etc., carried no specified penalty at that time.
Why was the 13th Amendment not published with the rest of the 1845 United States Statutes?
There is a long version, and a short version. The short version is that a book called "Commentaries on the Constitution" was under heavy use for many years by the courts in the country, because there had been no official printing of the "United States Statutes At Large" for so many years, that the Statutes had become very rare and hard to find. So the officers of the courts relied on the "Commentaries", in which the author, Justice Joseph Story claimed that the amendment had never been ratified. When the Statutes At Large were finally officially reprinted in 1845, the publishers relied on the Commentaries for their information. As it happened, the publisher of both the Commentaries and the Statutes were one and the
same, and Mr. Justice Story acted as a consultant in the editing and printing of
those 1845 Statutes.
For the long version of the answers, see "Guide
to the Legislative History".)
If the Constitution of the Confederate States of America was copied from the United States Constitution, then why didn't it have the 13th Amendment in it?
It is entirely true that the Constitution of the Confederate States of America was drawn from the United States Constitution. In fact, for the most part, the Confederate Constitution is copied word for word from the United States Constitution. However, the Original 13th Amendment had been removed from the United Stated Statutes at Large some 15 years before the Confederate Constitution was written. And, since the Confederate Constitution was being newly written at the time, the entry would not have been an amendment at all. There are some additional theories as to why text of the Original 13th Amendment was not included, but no exact proofs. That is to say, there is no precisely documented evidence of anyone having knowledge of the original 13th Amendment, and then purposefully choosing not include it. However, like the United States Constitution, the Confederate Constitution was written by a sizeable body of men, and was therefore not subject to the desires of any one individual at the time it was ratified by the Confederate States. Given that there were so many participants, many things could have happened which have yet to be discovered. However, none of this information in any way changes the fact that the
original 13th Amendment is still part of the United States Constitution to this day.
Why do some people still object to the 13th Amendment?
We can't say. Over the years, bits and pieces of the ongoing research were co-opted by various fringe groups and publishers, and this seems to have led to an assumption on the parts of some that there was no truth in the statement that the amendment had been unlawfully removed from the Constitution. Knowing what we now know, it would be hard to imagine why anyone would still object, unless they were personally subject to the amendment's penalties, or perhaps expected to experience some personal or financial loss through its provisions.
We invite you to be the judge and form your own opinion.
Why do some people think the 13 Amendment was about Napoleon Bonaparte?
Relations with France had been very strained at times, following the American Revolution. Napoleon Bonaparte had assumed power, and held reign over various nations outside of France. He made it a habit to seat his own relatives as local rulers. At that time, France still owned Louisiana, and Napoleon had put his brother Jerome on the throne. The United States, still being a very new nation, was constantly concerned about the power of various European governments - particularly, the English, French, and Spanish, as each of them still held territory on the borders of the new United States. Jerome Bonaparte married a Philadelphia socialite named Elizabeth Patterson, and there has been some speculation that both fear of Napoleon's power and Elizabeth Patterson's violation of the Constitution helped fuel the ratification of the 13th Amendment. (Ms. Patterson later divorced Jerome Bonaparte.)
Why have some people thought the 13th Amendment is
about banks?
During the early 19th century, a charter of the Second Bank of the United States was in motion, and the issue was a political hot potato. Without going into a great deal of detail here as the issue was so large, there was a great deal of feeling against the Bank of the United States, and banks in general. This was because many of the unregulated banks had been caught ripping off American depositors, causing them to lose everything. Also, the First Bank of the United States had actually been under the control of the British, and the result was a political and financial fiasco. Many people were extremely bitter about that, and did not believe that Congress was constitutionally entitled to charter any bank whatsoever. Passage of the 13th Amendment would have at least forced those with divided loyalties to choose between being loyal American citizens, or taking their citizenship claims elsewhere.
Why have some people thought the 13th Amendment is about attorneys?
The has been some debate in the past as to the usage of the term "Esquire", still used by many attorneys today. Originally, there was no Bar Association in the United States, and those attorneys who were members of a Bar Association
at all belonged to the Bar Association in Great Britain. If "Esquire"
was considered to be a "title of nobility" as prohibited by the Constitution of the United States, then these people would be in violation of American law, and under the 13th Amendment, would lose their citizenship. We have since found that many of the participants in the ratification of the 13th Amendment used the term "Esquire" themselves, and sometimes right in the official correspondence pertaining to the ratification of the 13th Amendment itself. Therefore, if that particular affectation was thought by some to come under the prohibitions against titles of nobility, then it certainly wasn't seen that way by the gentlemen who wrote, supported, and actually ratified the amendment themselves.
How does reestablishing this amendment affect current events?
This is a very big question! The effects will rely entirely on the reaction of the public and the legal bodies in the country. We can't answer for that. The amendment might cover a broad range of topics - such as corporate and business law, international relations, internal politics, etc. Presently, there is much under investigation as to various
financial relationships between the Chinese government and various American
organizations. But we are not a court - The TONA Committee of Correspondence is a research committee. In the end, you yourself will play a part in whatever the outcome may be. It is up to you to decide what the effects of the amendment will be.
How does this amendment affect multi-national corporations?
This is again a rather large question. A corporation, under the law, receives in large measure the same treatment as an individual person. Doubtless, there will eventually be some decisions made in the courts as to how far the comparison travels. Corporations are generally ascribed a nationality according to where they were incorporated in much the same way as an individual's nationality depends on that person's place of birth. Whether that might, in some sense, be treated as being a citizen as described in the amendment is an interesting question, but not one we can hope to answer here.
Why are we promoting this now?
The ongoing research into the Original 13th Amendment continues, just as it has since 1983 when David Dodge and Tom Dunn first came across the original 13th Amendment and began trying to find out what had happened to it. However, the critical elements in the legislative history of the amendment were just completed days ago. We could not justify holding the amendment's status as law away from the public's knowledge. Since this amendment has been our law since March 12,1819, there simply is no "right" time to publish our findings.
Isn't this just a fringe political ploy to get attention?
In order for that to happen, there would have to be some kind of political agreement on the part of the participants. As it happens, the TONA Committee of Correspondence is made up of private individuals interested in the research itself. The interest of the Committee as such is confined to researching and disseminating information concerning this particular law and the Constitution in general. Individual members are, of course, entirely free to form whatever political affiliations or opinions they may each find desirable. The TONA Committee of Correspondence as such has no outside sponsors or affiliations, is entirely self-supporting through its own contributions, and endorses no particular organizations or causes other than that stated here.
Why should I care?
The answer is, you don't have to care. That is, unless you feel the Constitution, its founding philosophies, and the way we treat our nation are important. In that case, it is vital that we, as a nation, insist that the Constitution be honored and adhered to by everyone - not just sometimes, and
not just some people. It is our heritage and our birthright. If we
allow any part of it to be treated lightly, unjustly, or even mistakenly, and we
then fail to correct those errors, we give up what is rightfully ours. We cannot deliver it intact to our children if we fail to care for it ourselves. Whether you may feel that this particular amendment
is good, bad, or indifferent, the problem is that the process itself has been
violated. When that happens, we all suffer the costs of no longer having a government by the People, for The People, and of The People. We forever
cease to be a true Republic. Fortunately for all of us, in this case the error
is one which can be corrected.
Why should I believe any of this?
The question may be a little like asking why you ought to believe the Constitution itself exists, since the 13th Amendment is actually part of the Constitution . We've laid out all the evidence here. If you have read it all and considered it carefully, there isn't much room left for doubt. If we were still not satisfied after a sum total of thousands of hours of careful and painstaking research, this site would not even be here. Though rare in some cases, the official documents
are all a matter of public record. If you still have questions, we invite you to contact the TONA Committee of Correspondence, and we will be happy to direct you to more information on the subject.
How do we reinstate the 13th Amendment?
Actually, "reinstatement" is probably a misleading term. A law does not need to be reinstated unless it has been repealed. In the case of the Original 13th Amendment, the law is, and always has been in effect since the date of its ratification. Only The People have the right to make amendments to the Constitution. Neither the Courts nor the Congress have any power to ratify or amend, either through a direct action, or through inaction.
However, the problem now is that the amendment is no longer contained in the United States Statutes. This has never happened before, to our knowledge. The present situation is the result of a publishing mistake, and only Congress has the power to direct the law to be printed and placed back into its proper place in the Statutes.
This is why there has always been a separation of powers. Both the
Courts and Congress have a bound duty to take notice of the existing law, but
the Court's primary reference for what is law, is the Statutes at Large.
Re-publication will correct the problem, and Congress has a duty to do so, as directed by the Will of The People when the amendment was ratified. This is the boundary between the
political process and the judicial process. Until a law comes into existence, the Court has no jurisdiction. Traditionally, the Court cannot and will not extend itself into the
political arena, where the laws are actually made. Once it knows what the law is, however, the Court can exercise its rightful jurisdiction. Until then, we have the problem of the political process having overstepped the boundary. Once the reprinting of the amendment is seen to, the Courts can then take proper notice of the law, and apply it whenever cases involving that law are brought.
What do we do now?
That is up to you. But we can suggest several avenues for your exploration:
One might be to contact your local and federal representatives and encourage them to see that the law is again printed as it was intended to be (and remembering that most of them now know even less about this issue than you did before you began reading up on it). Only the Court is forced to rely on what is in the Statutes. The State and local governments do not require the permission of Congress or any other body to print the laws as they exist.
Another avenue, if you are so inclined, is the research itself. As researchers, we collect all kinds of information on this subject, and we will always be interested in hearing of additional publications of the original 13th Amendment, both public and private, or other materials related to this study.
Yet another avenue is to discuss the matter with your friends and acquaintances and invite them to find out about this issue. See that your children are educated thoroughly on the Constitution and how the process is supposed to work - it is their inheritance. They are not presently being taught about this incident because very few people, including their teachers, have any knowledge of the fact.
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