The "Missing Thirteenth Amendment":
Constitutional Nonsense and Titles of Nobility
by Jol A. Silversmith
republished with permission of
Southern California Interdisciplinary Law
Journal
If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foriegn power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.
Introduction
Titles of nobility were a subject of major concern in the early days of the United States. Some colonial charters, such as that of Maryland, authorized the granting of such titles. In the Federalist, Alexander Hamilton wrote:
"Nothing need be said to illustrate the importance of the prohibitation of titles of nobility. This may truely be denominated the corner stone of republic government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people."
The Constitution prohibited the federal government and the states from granting titles, and persons holding any office of profit or trust from accepting a foriegn title without consent of Congress.
The ratifying conventions of Massachusetts, New Hampshire, New York, North Carolina, Rhode Island and Virginia proposed amendments that would either forbid Congress ever to grant such concent, or would have eliminated the "without the consent of Congress" clause. In the First Congress, similiar amendments were discusssed once in the Senate and twice in the House, but none were submitted to the states for ratification. Finally, on May 1, 1810, an amendment on titles of nobility received the assent of Congress and was submitted to the states.
An insufficient number of states ratified the Titles of Nobility Amendment ("TONA") to make it part of the Constitution. But, although mostly forgotten in this century, the amendment was more than just a footnote to history in the last century. Well into the second half of the nineteenth century, some textbooks, state compliations of law, and even on one occasion a complilation of law published under the auspices of COngress erroneously included TONA as if ratitifed. Further, after the ratification of the Twenty-seventh Amendment to the Constitution in 1992, scholars noted that if James Madison's amednment could be ratified after 203 years, there was no ommediatly obvious reason why TONA was not still viable, if still far distant from becoming part of the Constituion.
But even before the ratification of the Twenty-seventh Amendment gave the other amendments to the Constitution that were submitted to the states but not ratified their fifteen Warhollian minutes of fame, TONA also had received attention from a different - and disturbing - source. In August 1991, an extremistsmall-press magazine entuitled AntiShyster published a series of articles by David Dodge, who claimed to have discovered that TONA in fact had been ratified and later supressed. Dodge's articles have found a ready audience in many extremist organizations, and have found their ionto the Internet, where they are availble from world wide web sites, along with additional commentary and information from TONA proponents. Following Dodge, TONA proponents put forward an assortment of "constitutional nonsense," such as the claim that the amendment would exclude lawyers ("espuires") from public office. Some even use TONA to justify "sentencing" state officials to death or murdering police officers.
Dodge's claims do not stand up to cursory, much less careful scrutiny. But alternatively, if not mainstream media outlets have on occasion accepted his claims as accurate. Further, the limited attention TONA has received from scholars has overlooked key facts about TONA's history, allowing extremist claims about the amendment to flourish. Under some - if not most - circumstances, responding to extremist claims is an exercise of dubious value, lending them credence they do not merit. But because TONA has received so little scholarly attention - and because its proponents claim the amendment would disenfranchise lawyers from serving in public office, a significant attack on our system of government and civil liberties - the history of and claims about TONA merit attention.
This Article therefore will first review the history of TONA. Second, it will respond to some of the more significant - if meritless - arguments in support of the proposition that TONA was ratified. Finally, the Article will review and debunk the effects that TONA, according to its proponents, allegedly would have if ratified, and consider what lessons the amendment, it's history, and the alienation of its proponents may have for modern concerns about divisions in society.