Corwin Amendment

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The Corwin Amendment is a proposed amendment to the United States Constitution that would shield "domestic institutions" of the states from the federal constitutional amendment process and from abolition or interference by Congress. Although the Corwin Amendment does not explicitly mention slavery, it was designed specifically to protect slavery from federal power. Congress proposed the Corwin Amendment on March 2, 1861, shortly before the outbreak of the American Civil War, but it was not ratified by the requisite number of states.

In the period after the 1860 presidential election, several Southern states announced their secession and eventually formed the Confederate States of America. During this period, several legislative measures, including the Corwin Amendment, were proposed in the hope of either reconciling the sections of the United States, or avoiding the secession of the border states.[1] Senator William H. Seward and Representative Thomas Corwin introduced the Corwin Amendment, which was endorsed by President James Buchanan. The amendment had been ratified by just five states by June 1863, far short of the number required for ratification, with the amendment falling out of favor during the Civil War.

Text[edit]

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.[2][3]

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 of 1787, 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".[4]

Legislative history[edit]

Representative Thomas Corwin, author and namesake of the amendment

In December 1860, when the second session of the 36th Congress was convened, the deepening rift between slave states and free states was erupting into a secession crisis. The Senate quickly formed a "Committee of Thirteen" to investigate possibile legislative measures that might solve the slavery predicamet. The House formed a "Committee of Thirty-three" with the same objective. More than 200 resolutions with respect to slavery,[5] including 57 resolutions proposing constitutional amendments,[6] were introduced in Congress. Most represented compromises designed to avert military conflict. Senator Jefferson Davis proposed one that explicitly protected property rights in slaves.[6] A 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.[7] Senator John J. Crittenden proposed a compromise consisting of six constitutional amendments and four Congressional resolutions,[8] which were ultimately tabled on December 31.

On January 14, 1861, House committee submitted a plan calling for an amendment to protect slavery, enforce fugitive slave laws, and repeal state personal liberty laws.[9] The proposed constitutional amendment declared:

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.[10]

While the House debated the measure over the ensuing weeks, Mississippi, Florida, Alabama, Georgia, Louisiana and Texas had joined South Carolina in seceding from the Union. The contentious atmosphere in the House during the debate 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?"[6]

On February 26, Congressman Thomas Corwin, who had chaired the earlier House committee, introduced his own text as a substitute, but it was not adopted. The following day, after a series of preliminary votes, the House voted 123 to 71 in favor of the original resolution, but as this was below the required two-thirds majority, the measure was not passed.[10][11] On February 28, however, the House returned to and approved Corwin's version by a vote of 133 to 65, just barely above the two-thirds threshold.[12][13]

The Senate took up the proposed amendment on March 2, 1861, debating its merits without a recess through the pre-dawn hours on March 4. When the final vote was taken the amendment passed with exactly the needed two-thirds majority – 24-12.[13]

Soon afterward, it was sent to the states for ratification. The joint resolution containing the Corwin Amendment called for the amendment to be submitted to the state legislatures,[14] as it was believed that the amendment had a greater chance of success in the legislatures of the Southern states than would have been the case in state ratifying conventions, given that state conventions were being conducted at that time throughout the South at which votes to secede from the Union were successful.

The Corwin Amendment was the second proposed "Thirteenth Amendment" submitted to the states by Congress. The first was the similarly ill-fated Titles of Nobility Amendment in 1810.

Presidential responses[edit]

Outgoing President James Buchanan endorsed the Corwin Amendment by taking the unprecedented step of signing it.[15] His signature on the Congressional joint resolution was unnecessary, as the President has no formal role in the constitutional amendment process.[16]

Abraham Lincoln, in his first inaugural address on March 4, said of the Corwin Amendment:[17]

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 ... holding 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,[18] noting that Buchanan had approved it.[19]

Ratification history[edit]

The Corwin Amendment was ratified by:

  Ratified amendment
  Ratified, then rescinded
  Ratified under unusual circumstances
  1. Kentucky: April 4, 1861[20][21]
  2. Ohio: May 13, 1861[22] (rescinded ratification – March 31, 1864)[23]
  3. Rhode Island: May 31, 1861[20][24]
  4. Maryland: January 10, 1862[19][25] (rescinded ratification – April 7, 2014)[26]
  5. Illinois: June 2, 1863[27] (Illinois Senate rescinding ratification on May 2, 2019; awaiting action by Illinois House of Representatives)

On February 14, 1862, prior to the 1863 ratification of the amendment by the Illinois General Assembly, an Illinois state constitutional convention purported to ratify the Corwin Amendment. However, since Illinois state lawmakers were sitting as delegates to a convention at the time—and not meeting as the actual state legislature—that action was of questionable validity.[28]

The Restored Government of Virginia, consisting mostly of representatives of what would become West Virginia, voted to approve the amendment on February 13, 1862.[20] However, West Virginia did not ratify the amendment after it became a state in 1863.

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.[29] His joint resolution was referred to the House's Committee on Constitutional Amendments on March 7, 1963, but received no further consideration.[30]

Attempted withdrawal of amendment[edit]

The Corwin Amendment as approved by the 36th U.S. Congress, March 1861

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[31] to withdraw the Corwin Amendment from further consideration by the state legislatures and to 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, but no further action was taken on Anthony's joint resolution.[32]

Possible impact if adopted[edit]

The Corwin Amendment, when viewed through the lens of the plain meaning rule (literal rule), would have, had it been ratified by the required number of states prior to 1865, made institutionalized slavery immune to the constitutional amendment procedures and to interference by Congress. As a result, the later Reconstruction Amendments (Thirteenth, Fourteenth, and Fifteenth) would not have been permissible, as they abolish or interfere with the domestic institution of the states.[citation needed]

A competing theory, however, suggests that a later amendment conflicting with an already-ratified Corwin Amendment could either explicitly repeal the Corwin Amendment (as the Twenty-first Amendment explicitly repealed the Eighteenth Amendment) or be inferred to have partially or completely repealed any conflicting provisions of an already-adopted Corwin Amendment.[33][34]

See also[edit]

References[edit]

  1. ^ Samuel Eliot Morison (1965). The Oxford History of the American People. Oxford University Press. p. 609.
  2. ^ "Constitutional Amendments Not Ratified". United States House of Representatives. Archived from the original on July 2, 2012. Retrieved November 21, 2013.
  3. ^ Daniel W. Crofts (February 13, 2016). Lincoln and the Politics of Slavery: The Other Thirteenth Amendment and the Struggle to Save the Union. UNC Press Books. p. 7. ISBN 9781469627328. Retrieved November 7, 2017.
  4. ^ 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.'"
  5. ^ Jos. R. Long, "Tinkering with the Constitution", Yale Law Journal, vol. 24, no. 7, May 1915, 579
  6. ^ a b c Ewen Cameron Mac Veagh, "The Other Rejected Amendments", The North American Review, vol. 222, no. 829, December 1925, 281-2
  7. ^ Russell L. Caplan, Constitutional Brinksmanship: Amending the Constitution by National Convention (Oxford University Press, 1988), 56
  8. ^ Amendments Proposed in Congress by Senator John J. Crittenden: December 18, 1860 Avalon Project
  9. ^ "House Committee of Thirty Three submits proposed amendment". history.com. A&E Television Networks. February 1, 2019 [First published November 13, 2009]. Retrieved April 13, 2019.
  10. ^ a b Orville James Victor, The History, Civil, Political and Military, of the Southern Rebellion (NY: James D Torrey, 1861), I, 463
  11. ^ Francis Newton Thorpe, A Short Constitutional History of the United States (Boston: Little, Brown, 1904), 207
  12. ^ Victor, 467
  13. ^ a b Christiensen, Hannah. "The Corwin Amendment: The Last Last-Minute Attempt to Save the Union". The Gettysburg Compiler. Gettysburg, Pennsylvania: Civil War Institute, Gettysburg College. Retrieved April 13, 2019.
  14. ^ Brandon, 219-20
  15. ^ Alexander Tsesis, The Thirteenth Amendment and American Freedom: A Legal History (New York University Press, 2004), 2
  16. ^ Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798)
  17. ^ Text of Lincoln's first inaugural address, accessed July 17, 2011
  18. ^ Lupton, John A (2006). "Abraham Lincoln and the Corwin Amendment". Illinois Periodicals Online. Retrieved August 4, 2016.
  19. ^ a b Harold Holzer, Lincoln President-Elect: Abraham Lincoln and the Great Secession Winter 1860-1861 (NY: Simon & Schuster, 2008), 429
  20. ^ a b c Crofts, Daniel W. (2016). Lincoln and the Politics of Slavery: The Other Thirteenth Amendment and the Struggle to Save the Union. Chapel Hill: University of North Carolina Press. pp. 245–250. ISBN 9781469627328.
  21. ^ Resolution 10. Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Called Session which was Begun and Held in the City of Frankfort, on Thursday, the 17th Day of January 1861 and Ended on Friday, the Fifth Day of April 1861. Frankfort: Commonwealth of Kentucky. 1861. pp. 51–52 – via Google Books.
  22. ^ 58 Ohio Laws 190
  23. ^ 61 Ohio Laws 182
  24. ^ "Adoption of the Corwin Amendment". Providence Evening Press. June 3, 1861. p. 2.
  25. ^ 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)
  26. ^ "Rescission of Maryland's Ratification of the Corwin Amendment to the United States Constitution". General Assembly of Maryland. Retrieved April 10, 2014.
  27. ^ Illinois General Assembly (1863). Public Laws of the State of Illinois Passed by the Twenty-Third General Assembly Convened January 5, 1863. Springfield: Baker & Phillips. pp. 41–42.
  28. ^ Martin, Philip L. (March 1967). "Convention Ratification of Federal Constitutional Amendments". Political Science Quarterly. 82 (1): 67–71. JSTOR 2147300.
  29. ^ House Joint Resolution No. 67, 58th Texas Legislature, Regular Session, 1963
  30. ^ "Slavery: Just a 'Detail'?". The Progress Report. August 13, 2003. Archived from the original on June 26, 2015.
  31. ^ Congressional Globe, pp. 522-523
  32. ^ Congressional Globe, p. 2218; Mac Veagh, 282-3; Caplan, 128
  33. ^ Linder, Douglas. "What in the Constitution Cannot be Amended?". Arizona Law Review: 717.. 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)

  34. ^ Albert, Richard (February 27, 2013). "The Unamendable Corwin Amendment". Int'l J. Const. L. Blog. Retrieved March 2, 2013.

Further reading[edit]

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