The case of the missing 13th amendment to the Constitution

by Scott Bomboy

A few years ago, a group of Iowa Republicans claimed the legitimate 13th Amendment to the Constitution was “missing.” The debate is part of a historical detective story with some surprising twists that is still taking place.

The Daily Beast did a fairly extensive feature on the missing amendment in 2010, which didn’t feature a cloaked Freemason stealing the amendment because it had a secret treasure map printed on it.

Instead, the debate between historians and conspiracy buffs is about an amendment that was almost ratified in 1812 that would have been the 13th Amendment, bumping back the current 13th Amendment–which was ratified on this day in 1865 and abolished slavery–to the position of the 14th Amendment.

Writer Jerry Adler’s 2010 explanation of the “Thirteenthers” controversy is pretty detailed and covers both sides of the issue—which isn’t new but got a big burst of publicity thanks to the Iowa GOP’s 2010 platform.

The Iowa Republicans didn’t want the current 13th Amendment banned; they just wanted the “original” one reintroduced for approval.

That “missing” proposal was called the “Titles of Nobility Amendment” (or TONA). It sought to ban any American citizen from receiving any foreign title of nobility or receiving foreign favors, such as a pension, without congressional approval. The penalty was loss of citizenship.

It was an extension of Article I, Section 9, of the Constitution, which doesn’t allow a public office holder to receive a foreign title or similar honors without the consent of Congress.

Today, the idea of a constitutional controversy about the royals may seem kind of silly, but in 1812, the United States was fighting the British and had a rocky relationship with France.

The fear of both nations using noble titles as bribes, along with pensions from a foreign government, was persistent. And both the Senate and the House easily passed the TONA and passed it on to the states.

By late 1812, a total of 12 states had approved the 13th Amendment and ironically, it needed a 13th state to become ratified. As the War of 1812 escalated, the TONA faded away as an issue and was never ratified.

Or so we think.

In the 1980s, Adler says a conspiracy researcher started finding copies of the Constitution from the pre-Civil War era that had TONA listed as the 13th Amendment. The premise was that Virginia’s legislature had approved the amendment in 1819, but somehow, it was never listed as accepted by the federal government.

Further research revealed that President James Monroe asked his Secretary of State, John Quincy Adams, to confirm that the TONA was never ratified, which he did.

A law journal article from 1999 by Jol A. Silversmith, an attorney, explains how the TONA appeared in widely published versions of the Constitution for more than 30 years, including the official United States Statutes at Large (an official compilation of laws published by the government in 1815).

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Scott Bomboy is the editor-in-chief of the National Constitution Center.