Corwin Amendment

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Representative Thomas Corwin, 1831-1840 and 1859-1862

The Corwin Amendment is a proposed amendment to the United States Constitution passed by the 36th Congress, 2nd Session, on March 2, 1861, in the form of House (Joint) Resolution No. 80. It would forbid subsequent attempts to amend the Constitution to empower the Congress to "abolish or interfere" with the "domestic institutions" of the states, including "persons held to labor or service" (a reference to slavery).

Ohio Republican Representative Thomas Corwin offered the amendment in an attempt to forestall the secession of Southern states. Corwin's resolution emerged as the House of Representatives's version of an earlier, identical proposal in the Senate offered by New York Republican Senator William H. Seward. However, the newly formed Confederate States of America was committed to independence and so it ignored the Corwin Amendment.

This proposed amendment is still pending before the state legislatures for ratification, because Congress submitted it to the state legislatures without a deadline. Since the Thirteenth Amendment abolishing slavery was adopted in 1865, the Corwin Amendment lost whatever momentum it had.

Text

The proposed amendment reads:^[1][2]

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

The text refers to slavery with terms such as "domestic institutions" and "persons held to labor or service" and avoids using the word "slavery", following the example set at the Constitutional Convention, which referred to slavery in its draft of the Constitution with comparable descriptions of legal status: "Person held to Service", "the whole Number of free Persons..., three fifths of all other Persons", "The Migration and Importation of such Persons..."^[3]

Legislative history

In the Congressional session that began in December 1860, more than 200 resolutions with respect to slavery,^[4] including 57 resolutions proposing constitutional amendments,^[5] were introduced in Congress. Most represented compromises designed to avert military conflict. Mississippi Democratic Senator Jefferson Davis proposed one that explicitly protected property rights in slaves.^[5] One group of House members proposed a national convention to accomplish secession as a "dignified, peaceful, and fair separation" that could settle questions like the equitable distribution of the Federal government's assets and rights to navigate the Mississippi River.^[6]

On February 27, 1861, the House of Representatives considered the following text of a proposed constitutional amendment:^[7]

No amendment of this Constitution, having for its object any interference within the States with the relations between their citizens and those described in second section of the first article of the Constitution as "all other persons," shall originate with any State that does not recognize that relation within its own limits, or shall be valid without the assent of every one of the States composing the Union.

Corwin proposed his own text as a substitute and those who opposed him failed on a vote of 68 to 121. The House then declined to give the resolution the required two-thirds vote, with a tally of 120 to 61, and then of 123 to 71.^[7][8] On February 28, 1861, however, the House approved Corwin's version by a vote of 133 to 65.^[9] The contentious debate in the House was relieved by abolitionist Republican Owen Lovejoy of Illinois, who questioned the amendment's reach: "Does that include polygamy, the other twin relic of barbarism?" Missouri Democrat John S. Phelps answered: "Does the gentleman desire to know whether he shall be prohibited from committing that crime?"^[5]

On March 2, 1861, the United States Senate adopted it, 24 to 12.^[10] Since proposed constitutional amendments require a two-thirds majority, 132 votes were required in the House and 24 in the Senate. The Senators and Representatives from the seven slave states that had already declared their secession from the Union did not vote on the Corwin Amendment,^[11] as they had already vacated their seats in Congress.^{[citation needed]} The resolution called for the amendment to be submitted to the state legislatures and to be adopted "when ratified by three-fourths of said Legislatures."^[12] Its supporters believed it had a greater chance of success in the legislatures of the Southern states than in their conventions, which were voting to secede from the Union just as Congress was considering the Corwin Amendment.

Departing President James Buchanan endorsed the Corwin Amendment by taking the unusual step of signing it.^[13] The Corwin Amendment also has the distinction of being the only constitutional amendment offered to the states by Congress to have an actual numerical designation prematurely assigned to it by Congress—it appears as "Article Thirteen" in the proposing Congressional resolution.

Abraham Lincoln, in his first inaugural address, said of the Corwin Amendment:^[14][15]

I understand a proposed amendment to the Constitution—which amendment, however, I have not seen—has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service....[H]olding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.

Just weeks prior to the outbreak of the Civil War, Lincoln sent a letter to each state's governor transmitting the proposed amendment,^[16][17] without taking a position on it, and noting that Buchanan had approved it.^[18]

On February 8, 1864, during the 38th Congress, with the prospects for a Union victory improving, Republican Senator Henry B. Anthony of Rhode Island introduced Senate (Joint) Resolution No. 25^[19]to withdraw the Corwin Amendment from further consideration by the state legislatures and halt the ratification process. That same day, Anthony's joint resolution was referred to the Senate's Committee on the Judiciary. On May 11, 1864, Illinois Senator Lyman Trumbull, Chairman of the Judiciary Committee, received the Senate's permission to discharge Senate (Joint) Resolution No. 25 from the Committee, with no action having been taken on Anthony's joint resolution.^[20]

Ratifications

Pursuant to Article V of the Constitution, consideration of the Corwin Amendment then shifted to the state legislatures. On May 13, 1861, the Ohio General Assembly became the first to ratify the amendment.^[21] Next was the Maryland General Assembly on January 10, 1862.^[22][18] Later that year, Illinois lawmakers—sitting as a state constitutional convention at the time—also endorsed the amendment. That action is of questionable validity, because the Congress submitted the amendment to the state legislatures for ratification rather than to state ratifying conventions.^{[12][14][18][23]}

On March 31, 1864, the Ohio General Assembly rescinded its ratification of the Corwin Amendment,^[24] noting that the Civil War had rendered it irrelevant and calling it "an impediment to the free action of congress in the present exigencies of the country as well as a misrepresentation of the public sentiment of the people of Ohio, and contrary to the spirit of the age."^[25]

The Corwin Amendment is still pending before the state legislatures for ratification. It would need 35-37 ratifications to become part of the Constitution, depending on the validity of Ohio's rescission and of Illinois's questionable ratification. In 1963, more than a century after the Corwin Amendment was submitted to the state legislatures by the Congress, a joint resolution to ratify it was introduced in the Texas House of Representatives by Dallas Republican Henry Stollenwerck.^[26] It was referred to the House's Committee on Constitutional Amendments on March 7, 1963, and received no further consideration.^[27]

Possible effect if adopted

When viewed as an entrenched clause, the Corwin Amendment—had it been ratified—might have been construed to prohibit the Thirteenth Amendment, ratified in 1865, which abolished slavery in the United States and gave Congress enforcement power. The Corwin Amendment might also have prevented the adoption of the Fourteenth Amendment and the voting rights amendments, all of which dealt with the states' internal affairs. A competing theory, however, suggests that a later amendment conflicting with an already-ratified Corwin Amendment would have either explicitly repealed the Corwin Amendment (as the Twenty-first Amendment explicitly repealed the Eighteenth Amendment) or been inferred to have partially or completely repealed any conflicting provisions of an already-adopted Corwin Amendment.^[28]

See also

• List of amendments to the United States Constitution
• List of proposed amendments to the United States Constitution

References

1. ^ The Corwin Amendment appears officially in Volume 12 of the Statutes at Large at page 251.
2. ^ "Constitutional Amendments Not Ratified". United States House of Representatives. http://www.house.gov/house/Amendnotrat.shtml. Retrieved 2007-09-30. 
3. ^ David Waldstreicher, Slavery's Constitution: From Revolution to Ratification (NY: Hill & Wang, 2009), "Prologue: Meaningful Silences", 3-10, 98-9, 113. "Madison succeeded only in getting through a semantic change...that kept the slave-trade clause from stating directly 'that there could be property in men.'"
4. ^ Jos. R. Long, "Tinkering with the Constitution," Yale Law Journal, vol. 24, no. 7, May 1915, 579
5. ^ ^{a b c} Ewen Cameron Mac Veagh, "The Other Rejected Amendments," The North American Review, vol. 222, no. 829, December 1925, 281-2
6. ^ Russell L. Caplan, Constitutional Brinksmanship: Amending the Constitution by National Convention (Oxford University Press, 1988), 56
7. ^ ^{a b} Orville James Victor, The History, Civil, Political and Military, of the Southern Rebellion (NY: James D Torrey, 1861), I, 463
8. ^ Francis Newton Thorpe, A Short Constitutional History of the United States (Boston: Little, Brown, 1904), 207
9. ^ Congressional Globe, p. 1285; Victor, 467
10. ^ Congressional Globe, p. 1403
11. ^ Mark E. Brandon, "The 'Original' Thirteenth Amendment and the Limits to Formal Constitutional Change," in Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press, 1995), 219
12. ^ ^{a b} Brandon, 219-20
13. ^ Alexander Tsesis, The Thirteenth Amendment and American Freedom: A Legal History (New York University Press, 2004), 2
14. ^ ^{a b} Ghost Amendment: The Thirteenth Amendment that Never Was
15. ^ Text of Lincoln's first inaugural address, accessed July 17, 2011
16. ^ Abraham Lincoln and the Corwin Amendment
17. ^ The Supreme Court ruled in Hollingsworth v. Virginia, 3 U.S. 378 (1798), that the President has no formal role in the constitutional amendment process.
18. ^ ^{a b c} Harold Holzer, Lincoln President-Elect: Abraham Lincoln and the Great Secession Winter 1860-1861 (NY: Simon & Schuster, 2008), 429
19. ^ Congressional Globe, pp. 522-523
20. ^ Congressional Globe, p. 2218; Mac Veagh, 282-3; Caplan, 128
21. ^ 58 Ohio Laws 190
22. ^ Laws of the State of Maryland, Made and Passed At a Session of the General Assembly begun and held at the City of Annapolis on the third day of December, 1861, and ended on the tenth day of March, 1862. (Chapter 21, pages 21 and 22)
23. ^ The Illinois legislators decided that the national crisis justified their action, which they recognized as irregular. Philip L. Martin, "Convention Ratification of Federal Constitutional Amendments," Political Science Quarterly, vol. 82, no. 1, March 1967, 65
24. ^ 61 Ohio Laws 182
25. ^ George Henry Porter, "Ohio Politics during the Civil War Period (New York: 1911), 122
26. ^ House Joint Resolution No. 67, 58th Texas Legislature, Regular Session, 1963
27. ^ "Slavery: Just a "Detail"?". The Progress Report. http://www.progress.org/tto01.htm. Retrieved March 21, 2011. 
28. ^ Linder, Douglas. "What in the Constitution Cannot be Amended?". Arizona Law Review: 717. http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/unamendable.html. . See also: Michael Stokes Paulsen, "A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment," Yale Law Journal, vol. 103, no. 3, December 1993, 699n79, 702-4, 754n258: "[I]f the meaning of the amendment is judged by its text, rather than by historical evidence of those proposing it, the Corwin Amendment merely prohibits prospectively the enactment of new constitutional amendments giving Congress power to abolish slavery....The Corwin Amendment by its terms, is not a slavery-entrenching amendment, but a status-quo-entrenching amendment; and the legal status quo today is that slavery is prohibited." (emphasis in original)

Further reading

• Bryant, A. Christopher (2003). "Stopping Time: The Pro-Slavery and ‘Irrevocable’ Thirteenth Amendment". Harvard Journal of Law and Public Policy 26: 501. ISSN 01934872. 
• Lee, R. Alton (1961). "The Corwin Amendment in the Secession Crisis". Ohio Historical Quarterly 70 (1): 1–26. 
• Martin, Philip E. (1966). "Illinois' Ratification of the Corwin Amendment". Journal of Public Law 15: 18–91. 

External links

• Ghost Amendment: The Thirteenth Amendment that Never Was
• Peter Suber's The Paradox of Self-Amendment (Section on Corwin Amendment)
• Stopping time: The pro-slavery and "irrevocable" Thirteenth Amendment