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July 9th, 2010

Does the Iowa GOP Want to Repeal the 13th Amendment

By Nathan Tucker

Though not their intent, the awkward wording of a recently added plank to the Iowa Republican Party platform could certainly lead one to think that the Grand Old Party was unhappy with the 13th Amendment and would like another one to take its place.  The new plank, section 7.19, reads:  “We call for the reintroduction and ratification of the original 13th Amendment, not the 13th Amendment in today’s Constitution.”

The 13th Amendment “in today’s Constitution” reads in pertinent part:  “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”  The Iowa Republican Party likely did not mean to disparage this Amendment which, when enacted in 1865 at the eve of the Civil War, forever ended slavery in our country.

Rather, those at the state convention who ratified the party platform doubtless meant to refer to a constitutional amendment which, if it had passed when it was first introduced, would have numerically been the 13th Amendment.  This in turn would mean that the current 13th Amendment would have actually been the 14th Amendment, the current 14th Amendment the 15th, etc.

But what is this “original” 13th Amendment that the Iowa GOP would like to be ratified?  Though the platform doesn’t specify, one can only assume that they refer to the Titles of Nobility Amendment (TONA) of 1810, which reads:

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 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.

This amendment closely follows the language of Section 9, Clause 8 of Article 1 of the Constitution, except that, in addition to the existing penalty of being barred from political office, a person who violated this amendment would also forfeit his or her citizenship.

The apparent reason why Congress felt the need to add the additional punishment of loss of citizenship was due in large part to rising tensions with Great Britain, which ultimately culminated in the War of 1812.  Presumably, fears were so great at that time that the British monarchy would reward its allies on American soil with titles of nobility that the additional penalty was thought necessary.

There is an entire cottage industry of those who believe that this amendment was actually ratified by the requisite number of states and, as a result, the “real” 13th Amendment.  The Constitution requires that an amendment must be passed by three-fourths of the states before it becomes part of the Constitution.

Therefore, when TONA was passed by Congress in 2010 and sent to the states for ratification, 13 of the existing 17 states were needed to ratify it.  Twelve states did in fact pass the amendment before the year 1812 came to a close, needing only the affirmative vote of one more state for it to become constitutional law.  Those who argue that TONA was actually ratified and is binding law today claim that Virginia became that 13th state in 1819.

Even if true, thirteen states were now no longer sufficient for passage of a constitutional amendment in 1819 because of the admittance of five new states during the intervening years.  With Louisiana, New Hampshire, Indiana, Mississippi, and Illinois now in the Union, a total of sixteen states were needed to ratify the amendment, still leaving TONA, even with Virginia’s vote, three states shy of ratification in 1819.

Those who argue that TONA is the “real” 13th Amendment argue that, since the Constitution is silent on the subject, the three-fourths requirement is fixed at the time the amendment is submitted to the states for ratification and the addition of new states has no effect whatsoever on the equation.

Such an interpretation overlooks the fact that those at the Constitutional Convention repeatedly rejected proposals that made any distinction between old and new states, desiring that no preference be given to the older members.  Additionally, the 27th Amendment did not become a part of the Constitution until it had been finally ratified in 1992 by 38 (three-fourths) of the current 50 states, despite the fact that the 1st Congress passed it 202 years earlier in 1789 when the union only consisted of 11 states.

Moreover, such an interpretation not only sounds undemocratic, but could well have led to instances where a minority of Americans living in old states would have passed a constitutional amendment for a majority of all Americans living in both old and new states.  For instance, assuming that Virginia did not originally ratify TONA but suddenly decided to do so in 2010, TONA would, under this interpretation, become part of the Constitution by the vote of only 13 states even though 50 now constitute the union.  Certainly the Founders did not intend for such an undemocratic process by freezing the three-fourths requirement to the number of states at the time the amendment was introduced.

Thankfully, though apparently some in the party believe TONA is still necessary nearly two-hundred years after the War of 1812, they at least do not claim that it had been duly ratified and is now a part of the supreme law of the land.  Contrary to the platform, however, TONA does not need to be “reintroduced” because, like the 27th Amendment before it, it is still out there in constitutional never-never land simply awaiting the necessary number of states to ratify it.

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About the Author

Nathan W. Tucker

Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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