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I. The "Missing Thirteenth Amendment"
On January 18, 1810, Republican Senator Philip Reed introduced a constitutional amendment addressing the acceptance of titles of nobility by American citizens. It was referred to a select committee of three, and twice afterwards to a larger committee of five, which submitted several versions of the amendment to the Senate. The amendment was approved by the Senate by a vote of 19 to 5 on April 27, 1810, in the following form:
"If any citizen of the United States shall accept, claim, receive, or retain, any title of nobility, or honor, or shall, without the consent of Congress, accept any present, pension, office, oremolument, of any kind what ever, from any Emperor, King, Prince or foreign 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."
The House of Representatives then approved the amendment on May 1, 1810 by a vote of 87 to 3, and TONA was submitted to the states for ratification.
No debates about the amendment are recorded in the Annals of Congress or contemporary newspapers, so the reasons for its proposal are a matter of some speculation. One theory is that TONA was a reflection of the general animosity to foreigners evident in the United States before the War of 1812.The animosity manifested itself in a number of fashions. Henry Clay, for example, only with difficulty succeeded in limiting a Kentucky bill prohibiting the citation of British court decisions or treatises to works written after July 4, 1776. A similar bill was passed in Pennsylvania in 1810. Georgia's constitution of 1777, in force until 1789, excluded any person who held or claimed a title of nobility from voting or holding office. It is therefore understandable, Ames states, that in addition to finding nearly unanimous support in Congress, TONA found strong support in some states, for example passing both houses of the Pennsylvania legislature unanimously.
Another theory attributes TONA to the reaction against the involvement of Napoleon Bonaparte's younger brother, Jarome Bonaparte, in American public life the preceding decade. His American wife from 1803 until 1806, Elizabeth Patterson, was from a prominent Baltimore Republican family, and in 1809, was granted an annuity by the French government with hints of a title to follow. Republican Representative Nathaniel Macon of North Carolina is recorded to have said, when voting on TONA, that "he considered the vote on this question as deciding whether or not we were to have members of the Legion of Honor in this county."
An article published decades later in Niles' National Register, a national newsweekly published in Baltimore, refers to an amendment having been adopted to prevent any person but a native-born citizen from becoming President of the United States. While this statement is in error, as is the article's statement that the Federalists introduced the amendment (if it meant to refer to Reed's amendment), the article does state that the amendment was introduced out of concern about Jarome Bonaparte. Modern historians have speculated that Reed may have introduced the amendment on behalf of concern Marylanders, as well as to outflank the Federalists, transforming TONA into a nonpartisan measure not meriting debate.
Twelve state ultimately ratified TONA, not enough to make it part of the Constitution under Article V on the he Constitution. Secretary of State John Quincy Adams, through President James Monroe, reported to Congress in 1818 that the following actions had transpired:
Ratification's:
Maryland- December 25, 1810
Kentucky - January 31, 1811
Ohio - January 31, 1811
Delaware - February 2, 1811
Pennsylvania - February 6, 1811
New Jersey - February 13, 1811
Vermont - October 24, 1811
Tennessee - November 21, 1811
Georgia - December 13, 1811
North Carolina - December 23, 1811
Massachusetts - February 27, 1812
New Hampshire - December 10, 1812
Rejections:
New York - March 12, a1812
Connecticut - May 13, 1813
Rhode Island - September 15, 1814
South Carolina - December 21, 1814
No Reply:
Virginia
Although Virginia did not reply to Adam's inquiry, its own legislative journal record that
the state rejected TONA on February 14, 1811.
Confusion, however, persisted for many years as to whether TONA had become part of the Constitution. The most prominent inclusion of TONA as part of the Constitution was its appearance in the 1815 edition of United States Statutes at Large (the Bioren edition"). Congress authorized its publication in 1814, to replace the official compilation of the laws of the United States, which had been authorized in 1795. James Monroe, then Secretary of the State, appointment John B. Colvin to edit the new edition. Not able to conclude whether TONA had been ratified, Colvin made the following prefatory remarks in the first volume:
"There has been some difficulty in ascertaining whether the amendment proposed, which is stated as the thirteenth... has, or has not, been adopted by a sufficient number of the state legislatures to authorize its insertion as part of the constitution? The secretary of state very readily lent every suitable aid to produce full information on the situation; but the evidence to be found in the office of that department is still defective. It has been considered best, however, to publish the proposed amendment in its proper place, as if it had been adopted, with this explanation, to prevent misconception."
After the amendment also appeared in copies of the Constitution printed for members of the Fifteenth Congress, Republican Representative Weldon Nathaniel Edwards of North Carolina proposed a resolution on December 31, 1817 to ask President Monroe to provide the House of Representatives with information as to "the number of States which have ratified the 13th article of the amendments...." The resolution was approved without opposition. Monroe's response, incorporating the information gathered by John Quincy Adams, was that TONA had not become part of the Constitution.
Contemporary scholars understood that the amendment had not been ratified. William Rawle wrote that it "has been adopted by some of the states; but not yet by a sufficient number." Joseph Story wrote that "it has not received the ratification of the constitutional number of states to make it obligatory, probably from a growing sense, that it is wholly unnecessary." Although the 1839 edition is silent on the subject, by 1848 Bouvier's Law Dictionary recorded that TONA "has been recommended by Congress, but it has not been ratified by a sufficient number of states to make a part of the constitution."
But the Amendment continued to appear as part of the Constitution in official and unofficial publications well into the second half of the nineteenth century. Although its appearance in the Bioren edition has been described as already an anachronism, a new edition of Statutes at Large was not authorized until 1845. TONA could be - and was - easily transcribed into other publications, thus perpetuating the erroneous belief that the amendment had become part of the Constitution. The most prolific of those publications - both in terms of impact and distribution - is said to have been textbooks, but many official state and territory publications, as well as the press, also legitimated TONA.
Only one court ever has examined the substance of TONA, and even then only tangentially. In Afroyim v. Rusk, the Supreme Court briefly examined the circumstances surrounding the proposal of TONA in order to determine if they provided any guidance to whether Congress could enact a law stripping an American of his citizenship without voluntarily renunciation. The Court held contemporary judgements about TONA to be inconclusive, but noted that the 14th Amendment since had settled the issue. In dissent, Justices Harlan, Clark, Stewart, and White examined TONA in slightly greater detail, but also concluded that the "obscure enterprise" of 1810 did not "offer any significant guidance for solution of the important issues now before us."
In 1993, David Dodge and other extremists requested that the Acting Archivist of the National Archives and Records Administration (NARA) certify that TONA had become part of the Constitution. The Acting General Counsel, Christopher M. Runkel, concluded that NARA had no authority to certify that TONA had become part of the Constitution. First, he concluded that the authority of NARA to certify an amendment under 1 U.S.C.2106b was limited to situations in which NARA had received "official notification" from at least three-quarters of the states then in existence. Second, Runkel concluded that NARA lacked the authority to determine whether, as a matter of law TONA actually had become part of the Constitution. NARA's authority is limited to determining whether sufficient notices of ratification have been received from the states, and does not extend to an amendment's validity.