Please note that this FAQ was never formally completed, as I instead devoted my efforts to writing a law review article that incorporates the information in the FAQ, as well as more fully expose the lies extremists tell about the "missing thirteenth amendment."

0) Table of Contents

a) Confusion about whether amendments had become part of the Constitution
b) Publication of an amendment as part of the Constitution by states is not ratification
c) Ratification by Virginia would not have made the amendment part of the Constitution

a) Domestic titles
b) Foreign titles

1) What is this "Missing Thirteenth Amendment" I've heard about on the 'net?

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.

One theory is that the amendment was a reaction to the involvement of Napoleon's nephew, Jerome Bonaparte, in American public life a few years earlier. Nathaniel Macon (a Republican from North Carolina) noted 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 country." The Federalists thus may have introduced the proposal in an attempt to embarrass francophile Republicans, or alternatively supported the proposal in order to avoid embarrassment about their own associations with the British aristocracy. (See Ames at 187, Earle at 37) Another theory is that the amendment reflected the general animosity to foreigners evident before the War of 1812. (See Ames at 188, Conklin at 124)

There is not a shread of evidence to support the extremist theory that the amendment was part of an international banking/legal conspiracy, as claimed by extremists.

4) What became of the proposed amendment?

According to President James Monroe's Secretary of State, John Quincy Adams, in reports dated February 3, 1818 and February 27, 1818, the following actions transpired:

Ratifications:

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 31, 1811
North Carolina	December 23, 1811
Massachusetts	February 27, 1812
New Hampshire	December 9, 1812

Rejections:

Connecticut	May 13, 1813
New York	March 12, 1812
Rhode Island	September 15, 1814

No Action:

South Carolina

No Reply:

Virginia

(See CIS at 478, Conklin at 125) A secondary source further claims that the federal government recorded that no action was taken upon the amendment by Louisiana. (See Virginia Commission at 65)

Because the amendment was not submitted to the states with a time limitation, it could still could be made part of the Constitution, if it were to attract twenty-six additional ratifications. The prospects hardly seem likely, but much the same was once said about the now-27th amendment, which is generally credited to have been rescued from obscurity by Gregory Watson.

5) Why do a handful of extremists claim that it became part of the Constitution?

Their argument is based upon the "discovery" that Virginia ratified the amendment because it was included as part of the Constitution in a book of state laws published as of March 12, 1819, as well as that various other state and federal publications over the following fifty or so years included the amendment as part of the Constitution. This claim is specious for several reasons.

a) Confusion about whether amendments had become part of the Constitution

Indeed, this amendment was not the only one of its era about which there was ratification confusion. The Eleventh Amendment became effective on February 7, 1795, but was not officially acknowledged as being in effect until January 8, 1798. (See Virginia Commission) There are further examples of confusion, such as about the two amendments submitted with the Bill of Rights that were not ratified (at that time). (See Kammen)

In 1895 - less than thirty years after extremists claims that the amendment was suppressed - Herman V. Ames (a historian, not a lawyer, by the way) presented the history of The Proposed Amendments to the Constitution of the United States During the First Century of Its History to the American Historical Association. The Association published the essay in 1896, and it was also published as a Congressional Document in 1897.

Ames notes that many editions of the Constitution and school histories erroneously included the amendment. Thus the misconception that the amendment had become part of the Constitution was perpetuated. The fact that publication does not serve as proof that the amendment was ratified is vividly demonstrated by its inclusion as the Fifteenth Amendment in Emma Willard's History of the United States, published in New York in 1829; the twelve amendments sent out by the First Congress are all given as if ratified. (See Ames at 189)

Earle argues that the amendment's appearance in "Laws of the United States of America, From the 4th of March, 1789, to the 4th of March, 1815," prepared for the Congress, was already an anachronism. (See Earle at 37) The editor, John B. Colvin, noted in prefatory remarks contained in the first volume that he was unsure of the status of the amendment:

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 question; 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.

The inclusion of the amendment in copies of the Constitution prepared for the 15th Congress led Weldon Nathaniel Edwards of North Carolina to propose a resolution on December 31, 1817 to ask President Monroe to provide the House with information as to which states had ratified. The resolution was approved without opposition. (See Annals at 530)

This led Monroe's Secretary of State, John Quincy Adams, to inquire of each of the states about the status of the amendment. Monroe's final reply on February 27, 1818 included the above list of state ratifications and rejections, indicating that the amendment had not been ratified. (See CIS)

Contemporary Constitutional scholars noted 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." (See Rawle at 120) 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." (See Story at sec. 1346)

b) Publication of an amendment as part of the Constitution by states is not ratification

For example, when territories were organized, Congress passed an Organic Act that established the government for the territory. The form of government was fairly uniform and based on the Northwest Ordinance of 1787. In most cases, Congress gave territories a full set of statutes based on those of a neighbor - thus likely repeating any errors in its text.

Errors frequently do occur in government publications; Ames's work, for example, fails to note the one ratification the 27th Amendment received in the 19th century, and it incorrectly states that the Titles of Nobility Amendment came within one ratification of becoming part of the Constitution (see below at 188). Congress determined that the publication of the amendment in 1817 was based on an erroneous belief that South Carolina had ratified the amendment. (See CIS)

On August 1, 1849, C. Robinson and J. M. Patton, who were preparing a new edition of the code of Virginia for publication, wrote to William B. Preston, Secretary of the Navy (for reasons that are not immediately clear, although Preston was from Virginia), and noted that although the Titles of Nobility Amendment 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." Preston relayed their letter to the State Department. John M. Clayton, Secretary of State, responded that no copy of the amendment, claiming to be part of the Constitution, had been deposited with the Department; the amendment did not appear in a copy of the Constitution printed under the direction of the Department of State in 1820. (See National Archives)

Not to mention, for every time that the amendment was published, there were many occasions on which it was notpublished (even according to the information put forward by extremists, 17 states that joined the Union prior to 1867, including half of the states that ratified the amendment, did not publish it even once). Extremists also concede that many states that published the amendment later acknowledged that it had been published in error; no evidence is offered, of course, as to how international bankers conspired to publish these false retractions.

Further, the publication of an amendment as part of the Constitution in a compilation of state law cannot serve as a ratification. The Supreme Court has ruled that "the power to ratify a proposed amendment to the federal Constitution has its source in the federal Constitution." Hawke v. Smith, 253 U.S. 221, 230 (1920). As a result, the states must follow the procedures set up by the federal government and the Constitution (amendments must be ratified by convention or the legislature, as Congress may specify, and by no other method). Hawke clearly establishes that the ratification of an amendment cannot be accomplished through an ordinary act of legislation (subject to addditional conditions such as veto by a governor) because the ratification power is derived from the Constitution and not the people of a state.

In addition, the extremists who claim that the amendment was ratified are often the same extremists who claim that the Fourteenth Amendment was not ratified, because of minor differences in spelling and punctuation in state ratifications. Conveniently, they ignore the fact that there at least seven slightly different versions of the amendment among the state ratifications on file at the National Archives. (See National Archives)

c) Ratification by Virginia would not have made the amendment part of the Constitution

When the amendment was submitted to the states in 1810, 13 ratifications were required; Louisiana was admitted to the Union on April 30, 1812, raising the required number of ratifications to 14. Prior to that date the amendment had received only 11 ratifications

New Hampshire ratified on December 9, 1812, raising the total number of ratifications to 12 out of the needed 14. But Indiana was admitted on December 11, 1816, raising the required number of ratifications to 15. Mississippi's admission on December 10, 1817, did not change the threshold, but Illinois's admission on December 3, 1818 raised the threshold to 16.

The extremist claim that these later states are not relevant, because an amendment only needs the support of three-fourths of the states in existence when it was submitted to the states. History reveals this claim to be specious - and this fact was known at the time the amendment was under consideration.

When the Bill of Rights was submitted to the states on September 25, 1789, only 11 states were operating under the Constitution, so each amendment 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 states required to 10, and Vermont joined the Union on March 4, 1791, raising the number of states required to 11. (See Wagman at 41) The official notice of ratification was not issued by Secretary of State Thomas Jefferson until after notices of ratification had been received from 11 states. (See Schwartz at 1202-03)

If the admission of North Carolina, Rhode Island, and Vermont had not changed the amendment equation, the original First Amendment (dealing with the apportionment of the House of Representatives) would be part of the Constitution, because ten states ratified it. Similarly, the 27th Amendment would not have required 38 ratifications to become part of the Constitution, but have become part of the Constitution when, in 1983, it received its ninth ratification.

In fact, if the admission of North Carolina, Rhode Island, and Vermont had not changed the amendment equation, the Bill of Rights did not become part of the Constitution until 1939, because only 8 of the 11 states that ratified it in the 19th century were operating under the Constitution when the Bill of Rights was submitted to the states (to celebarte the 150th anniversary of the drafting of the Bill of Rights, Connecticut, Georgia, and Massachusetts ratified the first ten amendments in 1939).

In addition, the extremist claim that Constitutional requirements were different in the early 19th century because new states were frequently admitted to the Union is based on incorrect factual premises, as well as being without any theoretical support. After the admission of Kentucky on June 1, 1792, only four news states were admitted in the following 25 years (Tennessee, 1796; Ohio, 1803; Louisiana, 1812; Indiana, 1816); the late 18th and early 19th century was actually, statewise, a slow period of growth for the Union.

6) Would the amendment, as part of the Constitution, effect the eligibility of lawyers to serve in government offices?

a) Domestic titles

No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign State.

No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex postfacto law, or law impairing the obligation of contracts, or grant any title of nobility.

The following court cases provide just a sampling of the ridiculous claims put forward (oddly, mostly filed and lost by tax protesters):

U.S. v. Smith, 1991 WL 326647 (Civ. A. No. 91-A-292-S, M.D.Ala. 1991) - "Taxpayer" is not a title of nobility.

U.S. v. Riley, 1991 WL 192115 (Civ. A. No. 89-1403-T, D.Kan. 1991) - "Magistrate" is not a title of nobility.

U.S. v. Singer, 1990 WL 161258 (No. 85-00283-01, E.D.Pa. 1990) - A "person" as defined in the tax code is not a title of nobility.

Woodson v. Davis, 887 F.2d 1082 (4th Cir. 1989) - "Officer of the Court" is not a title of nobility.

Hilgeford v. People's Bank, 113 F.R.D. 161 (N.D.Ind. 1986) - Being a lawyer is not a title of nobility.

Peth v. Breitzmann, 611 F.Supp. 50 (E.D.Wis. 1985) - Employment by the I.R.S. is not a title of nobility.

Frederick v. Clark, 587 F.Supp. 789 (W.D.Wis. 1984) - Being a lawyer is not a title of nobility.

White v. Commissioner of Internal Revenue, 1981 WL 11137 (No. 1183-80, U.S. Tax Ct. 1981) - Having a degree is not a title of nobility.

Lawyers are licensed to practice law by state bar associations under the control of the state Supreme Court and legislature. This type of regulation falls under the police powers of the states; all professions such as lawyers, doctors, barbers, as well as cosmetologists can be regulated by state authorities. By extremist "logic," doctors, barbers, etc. therefore would be subject to exclusion from office under the amendment.

b) Foreign titles

"Title of nobility" has a specific legal meaning that cannot be ignored; although Nolan's Black's Law Dictionary is not a perfect reference source, its definition is serviceable:

Nobility. In English law, a division of the people, comprehending dukes, marquises, earls, viscounts, and barons. These had anciently duties annexed to their respective honors. They are created either by writ, i.e., by royal summons to attend the house of peers, or by letters patent, i.e., by royal grant of any dignity and degree of peerage; and they enjoy many privileges, exclusive of their senatorial capacity.

Honor. In old English law, a seigniory of several manors held under one baron or lord paramount. Also those dignities or privileges, degrees of nobility, knighthood, and other titles, which flow from the crown as the fountain of honor.

Esquire. In English law, a title of dignity next above gentleman, and below knight. Also a title of office given to sheriffs, serjeants, and barristers at law, justices of the peace, and others. In United States, title commonly appended after name of attorney; e.g. John J. Jones, Esquire.

Therefore, in addition to noting that the American usage of "Esquire" does not depend on English sources, Black's clearly states that as used for lawyers it is a "title of office" that does not flow from the Crown - it is not inheritable, confers no special privileges, etc.

Further, the Disclaimer of Peerages Act 1963 allows British titles to be disclaimed (although there is a limited time in which to do so), a notable example being Prime Minister Alec Douglas-Home, who left the House of Lords to sit in the Commons. (See Whitaker's at 141) So even if the British Bar was understood to confer titles of nobility on American lawyers, American lawyers could simply refuse to accept them.

Extremists also make claims about the International Bar Association. The IBA, a federation of national bar associations and individual members, was founded in 1947. It does not confer titles; membership is voluntary; etc.

7) So who came up with this ludicrous theory?

For more on Dodge, ponder these excerpts:

Mueller, Phil, "Southern Utah Traffic Stop Escalates Into Constitutional Battle," The Salt Lake Tribune, July 23, 1995:

David Castle is spending 30 days in jail rather than compromise his fundamentalist interpretation of the U.S. Constitution.

The month in the San Juan County Jail was handed down to the Albuquerque precious-metals dealer last week by a 7th District judge, the result of Castle's persistence in raising constitutional questions about Utah's traffic laws during his jury trial on a weapons charge and various traffic charges.

Castle has been representing himself with the help of David Dodge, a fellow constitutionalist from Miami who says he offers "personal assistance" to people around the country who challenge the system on constitutional grounds.

Thursday, Dodge filed a motion that Anderson recuse himself from the case, claiming the judge's order to have the pair singled out every time they enter the courtroom, "is evidence of prejudice" against the two.

He claims Castle has a valid argument and is prepared to carry it to the U.S. Supreme Court if necessary.

Castle said in an earlier interview that he considers driving a private vehicle a "natural right."

[C]onstitutionalist writings almost never refer to mainstream legal thinkers, and the movement's leaders [display] little familiarity with contemporary constitutional debate.

"What they are doing is pulling together things that have some academic respectability and distorting them and then mixing them with some silly, ludicrous things," says Erwin Chemerinsky, a professor of constitutional law at the University of Southern California.

Building on the core principles of the pecking order, the Organic Constitution and natural man, constitutionalists have erected a wide variety of esoteric theories. For example, one popular belief is that there is a "missing" 13th Amendment which was validated by the states in the 1810s, but which was suppressed by a conspiracy of bankers and lawyers. The effect of this amendment-which was actually proposed by Congress in 1810 but never officially ratified- would have allegedly been to prevent lawyers from serving in government.

Extensive scholarship sometimes supports these theories. For example, a 137- page book on "The Missing 13th Amendment" has been published by Alfred Adask, the editor of AntiShyster, a Dallas, Texas, magazine critical of the legal profession. The volume includes photocopies of state legislative records and 19th century versions of the Constitution that reprint the "missing" amendment.

In spite of all of Mr. Adask's evidence, academic support for the theory is slim. "I've never heard anyone reputable talking about that theory," says Mr. Chemerinsky.

One of the nation's most well-known conservative constitutional scholars, who requested anonymity out of fear of that his theories might be confused with the constitutionalists, derides their thinking as "constitutional astrology."

"The level of real political alienation which drives them is scary," says this scholar.

Steve Blow, "Primal scream now the voice of public's rage," The Dallas Morning News, April 19, 1996:

Mr. Adask was deeply embittered by a trip through divorce court. And he directed his rage toward reform of the legal system.

[Some of the] ads are chilling in their paranoia. "Government Control thru Our Food Supply? Some say it's coming," warns an ad for a survivalist food dealer.

"Go ahead, demonize them. Ridicule them. Put them under surveillance. Drive them deeper into isolation and paranoia. And see what you have by the year 2000," he said. "You'll see missiles flying in your back yard."

One reason why common law courts seem to be growing slowly in popularity may be linked to a belief that "the existing legal system doesn't serve" the public - only attorneys, said Alfred Adask, the editor and publisher of the Dallas-based AntiShyster magazine.

The magazine is a forum for constitutionalists who want to put the law back into the hands of the common man and is crammed with articles on obscure rulings and laws.

It also contains a standing $10,000 offer for any five attorneys to prove in a debate they are both honorable human beings and proud to be members of the state Bar Association.

Packed with articles about the Uniform Commercial Code and the Constitution, AntiShyster magazine is a little like a law review-though certainly not one for lawyers. It features cartoons of robed barristers beating Lady Justice with hammers, and it's laced with ads for survivalist stores and ammunition outlets. The Dallas-based bimonthly is dedicated to the proposition that "our legal system is a con-game, a hustle, a scam, a criminal activity that depends on the public's confidence (ignorance and blind trust)."

And who reads AntiShyster? Publisher Alfred Adask, who calls lawyers "punks, weaklings, con artists and losers," says that more than half of his estimated 45,000 readers are members of the so-called patriot movement, the right-wing fringe that allegedly spawned suspected Oklahoma City bomber Timothy J. McVeigh. Many also belong to local citizen militias.

Late last March, says Mr. Keene, several members of the Texas Common Law Militia attended Preparedness Expo '95, a three-day seminar in the Dallas Convention Center on topics such as self-defense, self- reliant living and food and water storage. One attraction: a lecture by Mark Koernke, a right-wing radio personality and one-time leader of the Michigan Militia who has been linked to Mr. McVeigh. Another featured speaker was Bo Gritz, who ran as the vice-presidential candidate on the Populist Party ticket headed by David Duke and who has been linked to the Ku Klux Klan.

Joining Mr. Koernke and Mr. Gritz was Mr. Adask, publisher of AntiShyster.

And the groups that have been active in the civil litigation reform movement are careful to distance themselves from the far right.

Americans For Legal Reform, a vocal Melville, N.Y., protest group that wants to put limits on the ability of lawyers to run for office, also takes pains to separate itself from AntiShyster. "Al [Adask] has gone off on a couple of tangents that we don't particularly agree with," says publicity director Harvey Kash.

But while Mr. Adask may seem extreme to HALT or Americans For Legal Reform, his views are mild compared with those of some of his readers, says Rick Schramm, of Right Way l.a.w., a Uniontown, Ohio, club that offers seminars on Bible-based pro se legal advocacy. Mr. Schramm, who says that his school condemns racism, says that several teachers in the self-help legal movement are white supremacists.

"Some of these guys say that the only people who have any rights in court are white, Christian men," says Mr. Schramm.

These are the people that Mr. Adask says lawyers should really worry about. Although he is opposed to violence, Mr. Adask has revealed in his own pages that he "gave serious consideration to murdering the judge and the lawyer that represented my ex-wife in our divorce," but rejected the idea. He warns that others may not be so reasonable.

Our entire judicial system has become an extortion racket designed to enrich lawyers at the expense of productive members of society. Almost every licensed, practicing lawyer is a beneficiary and co-conspirator in that extortion racket....

Lawyers are 'political racketeers,' 'economic cannibals,' and 'social parasites' who 'help... destroy America for a buck.' Lawyers are: 98% bad people, lousy Americans, ethical cowards, professional sociopaths who are almost certainly the primary cause of the social and economic decline of this nation.

Ames, Herman V., "The Proposed Amendments to the Constitution of the United States During the First Century of Its History," H. Doc. 353, 54th Cong, Sess. 2 (1897).

Annals of Congress, 15th Cong., 1st Sess., p. 530.

Conklin, Curt E., The Case of the Phantom Thirteenth Amendment: A Historical and Bibliographical Nightmare," Law Library Journal, Winter 1996, p. 121-127.

Delgado, Richard, "Inequality 'From the Top': Applying an Ancient Prohibition to an Emerging Problem of Distributive Justice," UCLA Law Rveiew, October 1984, p. 100-134. Earle, W. H., "The Phantom Amendment and the Duchess of Baltimore," American History Illustrated, November 1987, p. 33-39.

Kammen, Michael. A Machine That Would Go of Itself: The Constitution in American Culture, New York: Knopf, 1986.

National Archives, "Unratified Amendments, 1810 and 1924." Series RG-11. Washington, DC.

Nolan, Joseph R., and Jacqueline M. Nolan-Haley, Black's Law Dictionary, 6th ed., St. Paul, Minnesota: West Publishing Co., 1990.

Rawle, William, A View of the Constitution, Philadelphia: Philip H. Nicklin, 1829, p. 120.

Schwartz, Roots of Bill of Rights

Story, Joseph, Commentaries on the Constitution, Boston: Charles C. Little and James Brown, 1833, sec. 1346.

Virginia Commission on Constitutional Government, The Constitution of the United States of America, With a Summary of the Actions by the States in Ratification of the Provisions Thereof, To Which is Appended, for its Historical Interest, the Constitution of the Confederate States of America, 1961.

Wagman, Robert J., The First Amendment Book, New York: World Almanac, 1991, p. 41.

Whitaker's Almanac, 128th ed., London: J. Whitaker, 1996, p. 141.