The current position of those in the government is that there may have been a 13th state (Virginia) ratify the amendment. However, at the time that such ratification took place, new states had entered the union. The required 3/4 majority was not met as determined by the addition of the new states.
Dodge, Dunn and March contend and provide documentation that supports the claim that at that time the new states were not considered in the process of ratification.
The circular letter of Jan. 7, 1818
The report to the president of feb. 3 1818
Published civil codes of the four new states which clearly show that those states considered the amendment law even though they had not been asked to vote on it.
Consider the fact that the Constitution is silent on the matter of new states entering the Union during the ratification process.
Consider the fact that the Constitution is silent on the matter of time limits on the ratification process itself. Today, time limits on an amendments ratification must be stipulated at the time of the acceptance of the proposal. This was not done in the case of TON, so there was/is no time limit in effect.
I know of no legal way for an amendment to be removed from the Constitution other than congressional repeal, which requires the passage of a contrary amendment. Does anyone know of another way with precedent?
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