Introduction
In 1994, Acting General Counsel Christopher M. Runkel of the National Archives and Records Administration (NARA) issued a five-page opinion addressing whether the Acting Archivist could certify that the Titles of Nobility Amendment (TONA) became part of the U.S. Constitution in 1819. The opinion concluded that NARA lacked both the evidence and the authority to do so.
However, this conclusion rested on a fundamental legal error: it misapplied modern statutory procedures to a constitutional process that was already completed under Article V of the U.S. Constitution in the early 19th century.
1. Article V Is Self-Executing
Article V of the Constitution clearly defines how amendments become valid:
“…when ratified by the Legislatures of three fourths of the several States, [the amendment] shall be valid to all intents and purposes, as part of this Constitution.”
Nothing in Article V requires certification by an executive officer or archival body. Once the required number of state legislatures ratify a proposed amendment, the amendment is adopted by operation of constitutional law — not by administrative proclamation.
Thus, if Virginia’s legislature ratified the amendment in 1819, and that ratification was the 13th of 17 states then in the Union, the Article V process was complete. The amendment became self-executing, regardless of whether later agencies, such as NARA, ever “certified” it.
2. The Archivist’s Role Did Not Exist in 1819
Runkel’s 1994 opinion relies on 1 U.S.C. § 106b, which directs the Archivist to publish an amendment once official notices have been received from three-fourths of the states.
But this law — like the Office of the Federal Register and even the National Archives itself — did not exist until the 20th century.
In 1819, there was no Archivist, no Federal Register, and no statutory certification process. Ratification records were transmitted to and acknowledged by the Secretary of State, whose role was purely ministerial.
Applying modern record-keeping statutes retroactively to an amendment proposed in 1810 is a category mistake: the authority of the Archivist in 1994 cannot be used to nullify the legal sufficiency of Virginia’s legislative act in 1819.
3. Certification Is a Ministerial Function, Not a Condition of Validity
Supreme Court precedent confirms that proclamation or certification merely acknowledges what the states have already done; it does not create constitutional validity.
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Leser v. Garnett, 258 U.S. 130 (1922): once the required number of states ratify, the amendment “has become valid,” and official proclamation is purely “ministerial.”
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Coleman v. Miller, 307 U.S. 433 (1939): the process is political, and completion of ratification lies with the states and Congress — not executive officers.
Therefore, if Virginia’s 1819 ratification completed the three-fourths requirement as calculated under the number of states in the Union when proposed (17), TONA automatically became part of the Constitution.
4. The 1994 Opinion Misapplied the 38-State Rule
Runkel’s reasoning conflated modern Union size (50 states) with the constitutional ratio in 1810–1819. Article V fixes the threshold at “three fourths of the several States” at the time of ratification, not the present day.
In 1819, 17 states existed; three-fourths equaled 13. With Virginia’s ratification, the condition was satisfied.
The Archivist’s modern “38-state” standard is a bureaucratic mechanism for future amendments — not a retroactive rule for constitutional acts completed over a century before the agency was created.
5. Virginia’s Role Was Decisive
Contemporaneous executive records — including the Monroe circular of January 12, 1814, and the 1816 Department of State correspondence referencing “thirteen ratifications” — show that the amendment had already reached the threshold.
Virginia’s later certification in 1819 was effectively a reaffirmation completing the process. Under Article V, that was enough. No further action by any federal officer was required.
6. The Archivist Has No Jurisdiction to “Undo” Completed Constitutional Acts
Even if NARA in 1994 could not find Virginia’s ratification on file, it has no constitutional jurisdiction to determine whether an amendment was lawfully adopted. That authority lies only with Congress and the courts, and even they cannot retroactively invalidate a ratification lawfully completed under Article V.
In short: once Virginia acted in 1819, the matter was beyond the reach of the Archivist or any subsequent administrative interpretation.
Conclusion
The 1994 National Archives opinion erred by assuming that the absence of modern certification could nullify a completed constitutional act.
If Virginia’s ratification in 1819 brought the total to thirteen states — three-fourths of the Union at that time — the Titles of Nobility Amendment was lawfully adopted, and its validity did not depend on any later agency’s publication or recognition.
Article V, not NARA, is the supreme authority governing amendment ratification. The Archivist’s office may record history — but it cannot rewrite it.
