Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

Proposed Amendment: Slavery and the States Amendment:

State’s sole right to regulate slavery proposal:

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.

This proposed amendment is the so-called Corwin Amendment.  Passed by the 36th Congress on March 2, 1861, the Corwin Amendment offered by Ohio Representative Thomas Corwin was presented as a means of forestalling the secession of Southern states prior to the beginning of the Civil War.

It had become increasingly clear to many in Congress that a conflict was occurring over the status of slave versus non-slave states that could have cataclysmic effects on the Union.  In the 36th session alone, there were more than 200 different measures introduced regarding the subject of slavery including nearly 60 Constitutional amendments.

The Corwin Amendment sought to forbid any future attempts to amend the Constitution to empower the Congress to “abolish or interfere” with slavery as a way to ensure that southern states would not feel obligated to leave the American Union.  Presented as a last ditch effort to prevent the collapse of the Union, the proposal didn’t have the intended effect.  The newly formed Confederate States of America organized and declared that it would pursue a path of independence completely ignoring Congress’ intentions with the Corwin Amendment.

Notably the Corwin Amendment has the distinction of being the only constitutional amendment to have an actual numerical designation assigned to it by Congress—the proposing resolution includes the name “Article Thirteen.”

After passing the House and Senate, congressional leaders prevailed upon incoming President Lincoln to send a letter to each governor alerting them that the amendment had passed.  While President Lincoln never endorsed the measure, he acquiesced to the request.

By the time President Lincoln had been elected, seven southern states had seceded and within a few months four others would join them.  While Lincoln had not campaigned on a platform to end slavery where it existed, he had pledged to use the power of the federal government to prevent slavery from spreading to territories that were not yet states.  His willingness then to send the letter was yet another demonstration of the lengths he was attempting to go to prevent the dissolution of the union.

Ohio has the distinction of the being the first legislature to ratify the amendment on May 13, 1861.  However by March 31, 1864 the commencement of the Civil War and changing public sentiment led the legislature to rescind its ratification.  Since Congress did not include a final ratification date for this proposed amendment, it technically is still pending.  In 1963 more than a century after it was ratified, Texas state representative Henry Stollenwerck introduced a resolution to ratify in the Texas statehouse.   It was referred to the House of Representatives’ Committee on Constitutional Amendments on March 7, 1963, and received no further consideration.

It is noteworthy that the Confederate Constitution contained no provision like that found in the Corwin amendment.  Even though the Confederate charter explicitly authorized slavery in the Confederacy, it didn’t seek to prevent or bar future amendments that might restrict or abolish slavery.

Most scholars believe that even if the Corwin Amendment had been adopted it would not have been irreversible.  That is to say, Congress and the states could bar Congressional interference with slavery if they wanted but they couldn’t bar a subsequent Congress and the states from either repealing the amendment the same way they did when they adopted prohibition and then repealed it later or adding new amendments that had the same effect.  In other words, the mere adoption of the Corwin Amendment would not have prevented a subsequent Congress from passing an amendment to ban slavery or to protect the voting rights of blacks who were formerly slaves.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 18, 2012

Essay #86

1 reply
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    The crux of the conflict was in the Northern States refusal to enforce federal fugitive slave laws. Northern States nullified such federal laws and refused to deport escaped slaves back to the slave states. (Lesson to be learned with present day Obama Care and other unconstituional federal mandates…states have nullified federal laws with non-compliance.) When Lincoln was elected, his party platform was to repeal the federal fugitive slave laws and that is precisely what drew the ire of the Southern States, the Corwin Amendment not withstanding. After all, how effective are slave holding laws in slave states if non-slave states can aid and abet in the escaping of slaves? The Corwin Amendment did not address the federal fugitive slave law issue and so was not as much of an incentive for a slave state not to secede as hoped.

    As unlikely as this may be, if an amendment that was introduced by an earlier congress runs counter to a latter amendment ratified, does the delayed ratification of an earlier amendment then stand? It seems that such a matter must consider the state legislatures that ratified amendments concerning what was the most latest vote for which amendment. The vote of a later state legislature then ought to hold weight and so require a state legislature to vote again on an old amendment that they may have ratified before an intermittant counter-amendment ratification.


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