Insult To Jury
Apparently persuaded by Dodge's various arguments and proofs that the
"missing" 13th Amendment had satisfied the Constitutional requirements for
ratification, Mr. Hartgrove (National Archives) wrote back that Virginia had
nevertheless failed to satisfy the bureaucracy's procedural requirements for
"Under current legal provisions, the Archivist of the United States is empowered to certify that he has in his custody the correct number of state certificates of ratification of a proposed Constitutional amendment to constitute its ratification by the United States of America as a whole. In the nineteenth century, that function was performed by the Secretary of State. Clearly, the Secretary of State never received a certificate of ratification of the title of nobility amendment from the Commonwealth of Virginia, which is why that amendment failed to become the Thirteenth Amendment to the United States Constitution."
This is an extraordinary admission. Mr. Hartgrove implicitly concedes that the 13th Amendment was ratified by Virginia and satisfied the Constitution's ratification requirements. However, Hartgrove then insists that the ratification was nevertheless justly denied because the Secretary of State was not properly notified with a "certificate of ratification". In other words, the government's last, best argument that the 13th Amendment was not ratified boils down to this: Though the Amendment satisfied Constitutional requirement for ratification, it is nonetheless missing from our Constitution simply because a single, official sheet of paper is missing in Washington. Mr. Hartgrove implies that despite the fact that three-quarters of the States in the Union voted to ratify an Amendment, the will of the legislators and the people of this nation should be denied because somebody screwed up and lost a single "certificate of ratification". This "certificate" may be missing because either 1) Virginia failed to file a proper notice; or 2) the notice was "lost in the mail; or 3) the notice was lost, unrecorded, misplaced, or intentionally destroyed, by some bureaucrat in Washington D.C.
This final excuse insults every American's political rights, but Mr. Hartgrove nevertheless offers a glimmer of hope: If the National Archives "received a certificate of ratification of the title of nobility amendment from the Commonwealth of Virginia, we would inform Congress and await further developments." In other words, the issue of whether this 13th Amendment was ratified and is, or is not, a legitimate Amendment to the U.S. Constitution, is not merely a historical curiosity -- the ratification issue is still alive.
(2) But most importantly, Hartgrove implies that the only remaining argument against the 13th Amendment's ratification is a procedural error involving the absence of a "certificate of ratification".
Dodge countered Hartgrove's procedure argument by citing some of the ratification procedures recorded for other states when the 13th Amendment was being considered. He notes that according to the Journal of the House of Representatives. 11th Congress, 2nd Session, at p. 241, a "letter" (not a "certificate of ratification") from the Governor of Ohio announcing Ohio's ratification was submitted not to the Secretary of State but rather to the House of Representatives where it "was read and ordered to lie on the table." Likewise, "The Kentucky ratification was also returned to the House, while Maryland's earlier ratification is not listed as having been returned to Congress."
The House Journal implies that since Ohio and Kentucky were not required to notify the Secretary of State of their ratification decisions, there was likewise no requirement that Virginia file a "certificate of ratification" with the Secretary of State. Again, despite arguments to the contrary, it appears that the "missing" Amendment was Constitutionally ratified and should not be denied because of some possible procedural error.