Archive for February, 2013

Did the 13th Amendment Stay in Mississippi Too Long?

February 18, 2013 1 comment

Making news today under the sensational headline “Mississippi Finally Gets Around to Abolishing Slavery” is the story of an investigation by two Magnolia State residents that revealed that their state never “officially” ratified the Thirteenth Amendment to the United States Constitution.

Section one of the Thirteenth Amendment provides:

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.

Article V of the Constitution governs the constitutional amendment process and provides two avenues for amending the Constitution: an amendment may be proposed either 1) by two-thirds of Congress or 2) through a constitutional convention on a vote of two-thirds of the state legislatures. Ratification either is by three-fourths of the state legislatures or three-fourths of constitutional conventions in each of the states. Article V appears to leave open the possibility that Congress may prescribe other means by which an amendment may be ratified.

According to the National Archives, Congress delegated the Archives responsibility for administering the ratification process. The Archives describes a relevant part of the ratification process as follows:

When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.

Assuming these “formalities” constitute legally required steps in the amendment process, a proposed amendment does not become part of the Constitution until three-fourths of the states, acting through their legislatures or constitutional conventions, send a proper copy of their ratifying action to the Archivist.

After a vote of two-thirds of Congress, the proposed Thirteenth Amendment went to the states in 1864. Nearly two years later, when Georgia became the twenty-seventh state to ratify the amendment, the amendment was adopted and became a part of the Constitution. Mississippi did not ratify the amendment before Georgia did; in fact, it, along with other states like New Jersey, Delaware, and Kentucky, originally rejected the proposed amendment.

Over time, states that had not ratified the amendment did so, and those that initially rejected it reversed course and ratified it. Mississippi did so in 1995. As today’s story revealed, however, the Mississippi Secretary of State failed to notify the Archivist of their ratification action under the process described above, leading to the attention-grabbing statement that Mississippi had not “officially” ratified the Thirteenth Amendment and abolished slavery.

That view of this story likely is inaccurate.

First, once Georgia properly ratified the proposed amendment in 1865, the amendment became a part of the Constitution and, as such, the supreme law of the land. See U.S. Const. art. IV, s 2. The stance of the Mississippi legislature with respect to slavery was irrelevant because the Thirteenth Amendment applied in that state, just as it did in every other state, regardless of its decision on ratification.

Second, Mississippi probably did all it needed to do to “officially” ratify the Thirteenth Amendment– an act as symbolic in Mississippi as it was in every other state that decided to ratify the amendment after 1865– when three-fourths of its legislature voted for ratification in 1995. Under the Archives’ own description of the role of the notification procedure in the amendment process, the requirement for notice to the archivist would seem to be extinguished once a sufficient number of states had provided the requisite notice such that the amendment was adopted.

All Mississippi needed to ratify the Thirteenth Amendment was a three-fourths vote of its legislature. Having completed that in 1995, well after the adoption of the amendment, no further action was needed to make that ratification “official.”

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