There has been lots of talk on the Net regarding the alleged "missing" 13th amendment. I have followed the development of this research since it first got some notoriety years ago and my views are expressed below.
When Bill Benson and I tried to rip the 16th amendment out of the constitution, I had to immerse myself into the law of ratification of amendments. First, an amendment's ratification is a decision committed to the political branch of the government, meaning the Congress. The President and the courts play no role in the ratification process. When an amendment is proposed in the typical manner, states ratify the amendment and send notice of ratification to the Secretary of State. Once a sufficient number of states ratify, the Secretary of State proclaims its adoption. The number of states required to ratify are not limited to those in the Union at the time of the amendment's proposal. Although there is no litigated decision on the point, the accepted scholars declare that states admitted after the proposal of an amendment must likewise join in the ratification process. It seems that the courts would agree with these scholars.
In reference to the "missing" 13th amendment, I have over the years had a number of people mail me material regarding the issue, which I have studied. In order to prevail on this argument, the proponents must refuse to count states that entered the Union after this amendment was proposed; they limit the number needed for ratification to those in the Union when this amendment was proposed in 1810. But even with this invalid limitation of the number of states needed to ratify, the proponents admit that they cannot prove that Virginia ratified. All they have are published copies of constitutions of the period that include this amendment. You cannot prove that an amendment was ratified without having the actual state ratifications of sufficient number to meet the constitutional threshold. But further, you need a proclamation from the Secretary of State of ratification. The proponents do not have this essential proof of ratification. While this issue is an interesting study, there is no substance to it.
But the proponents also desire to make other wild claims. While titles of nobility are limited to titles like prince, princess, duke, etc., (I don't know all the various names) they expand this definition to things like "honor" and "esquire," from which they draw the conclusion that lawyers have a title of nobility. Go ask any lawyer if "esquire" is a title given him by some monarch and he will tell you the same thing I am telling you now: he has no title given to him by a monarch. These terms are just customary salutations and clearly are not titles of nobility.
Has this argument done damage? I know of a case up in Cincinnati styled United States v. Ed Badley, Gar Bradley and another of Ed's sons. They were indicted last fall for federal tax crimes and they filed pleadings which were predicated upon this "missing" 13th amendment argument. They went to trial earlier this year and used this and the "non de guerre" issue (names in CAPS) for the 3 weeks that the trial lasted. The jury was back with guilty verdicts in 45 minutes.
The proponents of this argument claim that the "missing" 13th amendment would destroy "immunity" defenses of public officials. Govt officials do not have absolute or qualified immunity because they have some "title of nobility." The origins of such immunity is the common law doctrine that "the king can do no wrong." Since this is a common law legal principle, it today manifests itself as the principle that the "government can do no wrong." If this supposed amendment were a part of the constitution, we would still have today this immunity defense.
The "title of nobility" argument has no substance, yet it continues to circulate and mislead people in the freedom movement. There are lots of arguments floating around of the same nature, like assertions that all Americans (and particularly lawyers) are subjects of the British crown. I consider that those who make these arguments have a "title of stupidity."
Larry Becraft
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