Corwin amendment

The Corwin amendment was and remains a proposed amendment to the United States Constitution offered by Ohio Congressman Thomas Corwin during the closing days of the 2nd Session of the 36th Congress as House Joint Resolution No. 80. The proposed — but not ratified and technically still pending — amendment would have forbidden the Federal Government from banning the practice of slavery in those states which permitted it, and was a last-ditch effort to avert the outbreak of the Civil War. Corwin's measure emerged as the House of Representatives' version of an earlier identical proposal in the Senate by William Seward.

Contents

1 History 2 Ratification 3 Impact 4 Text of the amendment 5 External link

History

On February 28, 1861, the United States House of Representatives approved the resolution by a vote of 133-65 (Page 1285, Congressional Globe). On March 2, 1861, it was approved by the United States Senate with a vote of 24-12 (Page 1403, Congressional Globe). Since proposed amendments require a 2/3 majority, 132 votes were required in the House and 24 in the Senate. A young Henry Adams observed that the measure narrowly passed both houses due to the lobbying efforts of Abraham Lincoln, the President-Elect. Seven states had already declared their secession at this point, and most of their senators and representatives had already vacated their seats.

The resolution was signed by President James Buchanan — shortly before President Lincoln was inaugurated — but it has long been established that a Presidential signature is unnecessary in the constitutional amendment process since the President has no formal role in it as noted in the 1798 case of Hollingsworth v. Virginia. By the same logic, a President is powerless to veto a proposed constitutional amendment.

Ratification

Ratification efforts began almost immediately after the measure's adoption and included a public endorsement in Lincoln's first inaugural address. The proposal was ratified by the legislatures of Ohio (May 13, 1861) and Maryland (January 10, 1862). Illinois lawmakers — sitting as a constitutional convention at the time — also approved it, although that action is of questionable validity. The amendment is known to have been considered for ratification in several additional states including Kentucky, New York, and Connecticut where it was either rejected or died in committee under neglect as other pressing wartime issues came to preoccupy the nation's attention. In any case, this was and remains far short of the three-fourths of the states needed to amend the Constitution. Had it been ratified by enough states before the end of the Civil War, it would have been the 13th amendment.

As recently as 1963, more than a full century after the amendment was proposed to the state legislatures by Congress, a resolution to ratify it was introduced in the Texas House of Representatives by Dallas Republican Henry Stollenwerck (House Joint Resolution No. 67, 58th Texas Legislature, Regular Session, 1963) but the resolution received no further consideration in that body than to be referred to its Committee on Constitutional Amendments on March 7, 1963. With 50 states currently in the Union, approval by the legislatures of 38 states is required for constitutional amendments — specifically as regards the Corwin amendment, 36 more in addition to those two whose previous ratifications remain valid. Since no state constitution currently permits slavery, it is a very moot point what effect its passage could have today.

Impact

Apart from its subject matter, the Corwin amendment also raises an important issue of constitutional theory, namely whether a democratic constitution can prohibit certain amendments to itself through what amounts to an entrenched clause. When viewed as an entrenched clause, the Corwin Amendment, had it been ratified, would have prohibited the later Thirteenth Amendment that abolished slavery. A competing theory suggests that were a later amendment — contrary to an already-ratified Corwin amendment — offered, then (A) the Corwin amendment could be explicitly repealed by that later amendment (as was the case with the 18th Amendment's explicit repeal by the 21st Amendment); or (B) by inference, the later amendment would be deemed to modify or completely obliterate an already-ratified Corwin amendment.

Its proponents such as Lincoln believed the Corwin amendment would not have changed the existing law in 1860 beyond restricting Congress' future powers, but was a reiteration of principles that were already in the Constitution. This view contrasts with the position espoused by some abolitionists such as Frederick Douglass and Lysander Spooner, who argued that slavery was not truly protected in the original constitution.

Several other amendments, such as those included in the proposed Crittenden Compromise, aimed to forestall the secession crisis. Most involved a return to the terms of the Missouri Compromise, but Republicans defeated all such attempts to allow any further advance of slavery into the territories.

Text of the amendment

The Corwin amendment appears officially in Volume 12 of the Statutes at Large at page 251. The text of the Corwin amendment is as follows:

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 amendment that did become the Thirteenth Amendment in 1865 did abolish slavery and give Congress legislative powers.

See also the Twenty-seventh Amendment to the United States Constitution and Child labor amendment as well as Coleman v. Miller.

External link

• Ghost Amendment: The Thirteenth Amendment that Never Was