The leading proponent that the 16th Amendment was not ratified is William J. Benson. In 1984 Benson traveled to the capitals of each state and obtained certified copies of the legislative journals pertaining to the state’s ratification actions. Benson also obtained from the National Achieves correspondence between then Secretary of State Knox and the Office of the Solicitor of the Department of State. Benson published his findings in The Law That Never Was (”TLTNW”).
The case law regarding Benson’s findings is inherently suspect. Most suspect is United States v. Foster, 789 F.2d 457 (1986) and United States v. Thomas, 788 F.2d 1250 (7th Cir. 1986).
In Foster the Seventh Circuit concluded that the validity of Sixteenth Amendment’s ratification is a non-justiciable political question because courts are bound by the enrolled bill rule. See Foster, supra. at p. 462-63, n. 6. The enrolled bill rule, at the time of the 16th Amendment ratification process, was found at Section 205 of the Revised Statutes, and stated:
Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published n the newspapers authorized to promulgate the laws, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.
“[T]he provisions of the Constitution” referred to is Article V of the United States Constitution. It requires the legislatures of three-fourths of the several States to ratify a proposed constitutional amendment. The Foster Court ignored this requirement when it held: “official notice to the Secretary, duly authenticated, that they had done so [ratified the nineteenth amendment] was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts.” Foster, id.
This so called “conclusive presumption” is anathema to the entire constitutional system of checks and balances. According to the Seventh Circuit, and other courts, only notice of ratification is required, not actual ratification as required by Article V. The proof of whether or not a state actually ratified a proposed amendment is contained in the state’s legislative journals. The purpose behind a legislative journal is to record exactly what transpired so the people can keep abreast of what our elected officials are doing, and perhaps more importantly, how they are doing it.
The Thomas Court supposedly “specifically examined the arguments made in The Law That Never Was.” See United States v. Benson, 941 F.2d 598, 607 (7th Cir. 1991), and concluded that Benson did not discover anything but only rediscovered something that Secretary Knox considered in 1913. Thomas, supra p. 1253-54. The legislative journals obtained by Benson belie this assertion. Benson discovered, among other things, that the States of Oklahoma (TLTNW, pp 63-65), Missouri (TLTNW, p. 191) and Washington (TLTNW, p. 114) intentionally changed wording of the 16th Amendment proposed by Congress.
When then Secretary of State Knox received the certified copies of certificates of ratification from the various states and noted the certificates contained language different from that proposed by Congress, Knox asked the Office of the Solicitor of the Department of State for a legal opinion as to whether or not a sufficient number of states has ratified the proposed 16th Amendment. The Solicitor’s memorandum, dated February 15th, 1913, is contained in The Law That Never Was at pp. 5-20.
From the Solicitor’s Memorandum of February 15, 1913:
In no case has any legislature signified in any way its deliberate intention to change the wording of the proposed amendment. The errors appear in most cases to have been merely typographical and incident to an attempt to make an accurate quotation.
Furthermore, under the provisions of the Constitution a legislature is not authorized to alter in any way the amendment proposed by Congress, the function of the legislature consisting merely in the right to approve or disapprove the proposed amendment. It, therefore, seems a necessary presumption, in the absence of an express stipulation to the contrary, that a legislature did not intend to do something that it had not the power to do, but rather that it intended to do something that it had the power to do, namely, where its action has been affirmative, to ratify the amendment proposed by Congress. Moreover, it could not be presumed that by a mere change of wording probably inadvertent, the legislature had intended to reject the amendment as proposed by Congress where all parts of the resolution either than those merely reciting the proposed amendment had set forth an affirmative action by the legislature. For these reasons it is believed that the Secretary of State should in the present instance include in his declaration announcing the adoption of the 16th amendment to the Constitution the States referred to notwithstanding it appears that errors exist in the certified copies of Resolutions passed by the Legislatures of those States ratifying such amendment.
The Solicitor relied on a series of necessarily connected presumptions to reach his conclusion of ratification. Benson’s evidence raises two problems. First, the presumption that no state intended to alter the proposed amendment is patently false. Second, the ultimate conclusion drawn from the false presumption is also false. At least three of the notices of ratification does not contain only mere minor typographical errors incident to an attempt to make an accurate quotation.
Proof of these intentional changes by Oklahoma, Missouri and Washington are clearly contained in The Law That Never Was. Had the Thomas Court “specifically examined the arguments made in The Law That Never Was,” it would have known that the Knox relied upon false presumptions, and that several states did not, in fact, ratify the proposed 16th Amendment.
These issues are currently before a court in United States v. Benson, Case No. 1:04-cv-07403 (N.D.Ill.E.D. 2004). The details of the case, including copies of the pleadings on file, may be seen by visiting my website: http://jeffdickstein.com.
