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II. Constitutional Nonsense
Although the claim of TONA proponents that the amendment was suppressed by a conspiracy of lawyers, bankers and foreign interests can be dismissed instantly as frivolous, their claims as to why TONA was ratified deserve some attention, if only to demonstrate why they are meritless. The first claim is grounded on the fact that TONA was included in numerous publications in the nineteenth century, including state compilations of law. If so many included TONA, so the claim goes, TONA must actually become part of the Constitution. The second claim is grounded on the fact that the Amendment was included in a state compilation of law, the publication of which was authorized by the Virginia legislature on March 12, 1819. If Virginia published TONA, so the claim goes, Virginia must have actually ratified TONA.
First in the late eighteenth and early nineteenth centuries, there was frequent confusion about whether proposed amendments had become part of the Constitution.At that time no legal procedure existed to control the communication of action by States to the Federal government... Uncertainly as to the status of [TONA] continued for eight years. The Eleventh Amendment became effective on February 7, 1795, but was not acknowledged by President John Adams as being in effect until January 8, 1798. Similarly, President Thomas Jefferson's Secretary of State, James Madison, did not declare the Twelfth Amendment in effect until more than 3 months after it became part of the Constitution. Even in 1845, the editors of United States Statutes at Large were unsure exactly when the Eleventh and Twelfth Amendments had been ratified.
In addition, TONA may have been propagated because of how Congress adopted organic acts for territories. When territories were organized, Congress passed an organic act to establish a government for the territory. Not only were organic acts for new territories based on those for older territories, but the laws of the territory itself often were copied from other states or territories. Even if the compilers of a territorial code noticed TONA, and were doubtful as to its validity, there was relatively little they could do; in the early nineteenth century, "precise knowledge [about the Constitution] simply was not common.
Furthermore, despite the volume of citations in state compilations of law that have been collected by TONA proponents, for every time that TONA was published, there were far more occasions upon which it was not published. Sixteen of the thirty-eight states that joined the Union by 1879, including half of the states that ratified the amendment, are not alleged to have published TONA even once. TONA proponents also concede that many states noted that when TONA had been published, its conclusion was in error; New York's code in 1829 noted that:
"In the edition of the Laws of the U.S. before referred to [the Bioren edition], there is an amendment printed as article 13, prohibiting citizens from accepting titles of nobility or honor, or presents, offices, $c. from foreign nations. But, by a message of the president of the United States of the 4th of February, 1818, in answer to a resolution of the house of representatives, it appears that this amendment had been ratified only by 12 states, and therefore had not been adopted."
By the late nineteenth and early twentieth centuries, it was commonly recognized that TONA had not become part of the Constitution.
A second response is that the publication of an amendment as part of the Constitution in a compilation of state law cannot serve as a ratification. The publication of an amendment as part of the Constitution most indicates that the publisher who compiled the statutes of a state on behalf of the state legislature thought that it was part of the Constitution; after all, the official edition of United States Statutes at Large included the Amendment, and there were few secondary sources of consequences until the 1820's. Many publishers, public and private, in fact gave scant attention to the Constitution: "[T]here were often grave mistakes in copying." The textbooks that glorified it "contained all sorts of inaccuracies about the Constitution"; at least one textbook included not only TONA but all twelve of the amendments sent out by the First Congress in 1789 as if ratified.
Although the first statute governing the process for ascertaining the ratification of constitutional amendments was drafted in response to the confusion over the status of TONA, the statute cannot be presumed to have retroactive effect. But the Supreme Court has ruled that "the power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution," not the people of the State. Constitutional amendments may be ratified by a vote of the state legislature or by convention as Congress may specify under Article V of the Constitution, and by no other method, such as a referendum. The Court's evident instruction in Hawke v. Smith is that any departure from constitutional requirements to comport with state legislative processes is invalid: "[R]atification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the State to a proposed amendment."
The act of the Virginia legislature authorizing the 1819 publication of the Constitution as well as the laws of the Commonwealth was an ordinary act of legislation, signed by the Governor, that incorporated no mention of any new amendments to the Constitution. In contrast, "the function of a state legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution...." Therefore, although the ratification of an amendment through its inclusion on a compilation of state law authorized by ordinary legislation would not be a constitutional procedure in any case, in this case the publication was not even intended to be ratification.
Virginian's in later years also questioned how in 1819 the conclusion could have been drawn that TONA had been ratified. On August 1, 1849, C. Robinson and J.M. Patton, who were preparing a revised edition of the laws of Virginia, wrote to William B. Preston, Secretary of the Navy, and noted that although TONA was included in the Revised Code of 1819, "[w]e are satisfied that this amendment was never adopted, though it is difficult to account for the fact that it should have been put into the Code of 1819 as an amendment which had been adopted." The revised code noted that the previous publication was in error.
Further, even if TONA was ratified by Virginia, the state was never in a position to make TONA part of the Constitution. This crucial fact has been overlooked by virtually every scholar, since and including Ames, who has written on the amendment. The common refrain has echoed Ames' claim that "[t]he amendment lacked only the vote of one Sate of being adopted" -an error which has been exploited by TONA proponents. Only the authors of the Virginia Commission compilation correctly observed that on the date Monroe wrote to Congress to report the status of TONA, fifteen ratifications would have been required to make it part of the Constitution.
When TONA was submitted to the states in 1810, 17 states were members of the Union; 13 ratifications were required to make the Amendment part of the Constitution. But Louisiana was admitted to the Union on April 30, 1812; the number of state ratifications required to make TONA part of the Constitution thus rose to 14. Prior to that date TONA has received only 11 ratifications, so it was never a single ratification short of immortality. New Hamshire ratified TONA on December 12, 1812; again placing the amendment within two states of becoming part of the Constitution. But Indiana was admitted to the Union on December 11, 1816, and was followed by Mississippi on December 10, 1817 and Illinois on December 3, 1818, with no further ratifications emerging. By 1819, therefore, the threshold was 16 ratifications, and TONA fell four states short. If Virginia ratified at any time, it did not matter, but by 1819 it was far too late.
Article V of the Constitution does not specify whether the states that are to ratify an amendment are those in existence when an amendment is submitted to the states, or also includes those that join the Union after the amendment has been submitted to the states but prior to ratification. History, however, provides an answer. When the Bill of Rights was submitted to the states on September 25, 1789, only 11 states were operating under the Constitution; each amendment then required 9 ratifications to become part of the Constitution. But North Carolina ratified the Constitution on November 21, 1789 and Rhode Island on May 29, 1790, raising the number of ratifications required to 10. Vermont then joined the Union on March 4, 1791, raising the number of ratifications required to 11. The official notice of the ratification of the Bill of Rights was not issued by Secretary of State Thomas Jefferson until March 1, 1792, after notices of ratification had been received from 11 states.
On March 2, 1797, before the Eleventh Amendment was know to have become part of the Constitution, Congress passed a resolution requesting the President to obtain information from the states about what action they had taken on the amendment, including Tennessee, which had not been part of the Union when the Amendment was proposed. On October 16, 1797, Secretary of State Timothy Pickering wrote to Tennessee Governor John Sevier, enclosing a copy of the Eleventh Amendment. Pickering stated that he thought it "expedient to transmit... a copy of the resolution, to be laid before the legislature of Tennessee, for their adoption or rejection." The principal that new states are to be included in the ratification process of a constitutional amendment has continued into the twentieth century. When New Mexico and Arizona joined the Union in 1912, the number of states required to ratify the Sixteenth Amendment increased to 36, which they were among.
If to become part of the Constitution an amendment required only the number of ratifications that were required when it was first submitted to the states, the constitutional history of the United States would be very different. The Congressional Apportionment Amendment, the original First Amendment, received ten ratifications; it would be part of the Constitution. Similarly, the Twenty-seventh Amendment would not have become part of the Constitution in 1992 when it received its thirtieth ratification, but rather in 1983 when it received its ninth ratification. Further, if only states that were eligible to vote on an amendment when it was submitted to the states are ever eligible to vote on that amendment, the constitutional history of the United States would be even more dramatically different. Only eight of the eleven states operating under the Constitution when the Bill of Rights was submitted to the states voted to ratify it in the eighteenth century; if states admitted later were not eligible to ratify it, then the Bill of Rights did not become part of the Constitution until 1939, when Connecticut, Georgia and Massachusetts ceremonially ratified the first ten amendments, marking the 150th anniversary of their drafting. Not even the most extreme of extremists appears to have put forward such a claim.