About Our Constitution, a Series
Article 36 – The Un-ratified Amendment Proposed on March 2, 1861 – Protecting Slavery
David Robert Wood
June 15, 2012
This proposed Amendment to the Constitution would have protected slavery in the States by prohibiting the federal government from abolishing it at the national level. Following is the original text of this proposed Amendment — “Article XIII”:
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.
Proposed as “Article XIII” on March 2, 1861, this proposed Amendment, “Protecting Slavery,” has not been ratified by the requisite number of States and continues to be subject to ratification. Commonly known as the “Corwin Amendment,” it preceded and should not be confused with Article of Amendment XIII, “Abolishing Slavery,” which was proposed by Congress on January 31, 1865, and was fully ratified on June 30, 1865.
This Amendment was proposed in the second session of the thirty-sixth Congress, by a simple Resolution (H. Res. 80/H. R. 80) concurred to by both Houses of Congress on March 2, 1861, when it passed the Senate by a vote of 24 to 12. On February 28, 1861, it had previously passed the House of Representatives by a vote of 133 to 65. It was originally introduced in the House of Representatives on February 27, 1861, and was the second in the series of propositions reported from the House Select Committee of Thirty-three.
Following its passage, it was certified as proposed by Secretary of State William H. Seward on March 13, 1861. It was then transmitted to the States for ratification consideration on March 16, 1861, by President Abraham Lincoln and Secretary of State William H. Seward.
This proposed Amendment was a prohibition from further amending the Constitution to allow the federal government to prohibit slavery. It was passed and proposed in the last days of the thirty-sixth Congress and two days before the inauguration of Abraham Lincoln as the sixteenth President of the United States on March 4, 1861. As of the date of its passage, the States of South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana and Texas had previously adopted Ordinances of Secession and had dissolved their union with the United States. Six of these States, excluding Texas, were not then represented in Congress, except for one of the four Representatives from Louisiana who remained through the session’s end on the following day of March 3, 1861. Texas’s secession, although approved in February 1861, was not effective until March 3, 1861.
On March 2, 1861, this proposed Amendment was unnecessarily “Approved” by outgoing President James Buchanan by his signature on the congressional Resolution. As previously discussed, the constitutional Amendment process, as prescribed in Article V of the Constitution, does not include approbation, or approval by the President of the United States.
To date, as best determined, this proposed Amendment has been ratified by only two States, thirty-eight States now being necessary for Final Ratification — Ohio on May 13, 1861, and Maryland on January 10, 1862. Illinois ineffectively ratified this proposed Amendment on February 14, 1862, by utilizing a State Constitutional Convention. In proposing such Amendment to the Constitution, Congress specified that State ratification was to be by State Legislatures, and not by State Conventions.
As discussed relative to Article of Amendment XIII, controversies regarding the acceptability of slavery in the United States were at an all time high in the mid-1800s. Nonetheless, State rights relative to such an issue were still respected by many, including many members of Congress. With the election of Abraham Lincoln in November 1860, many of the slave States were concerned about Lincoln’s abolitionist viewpoint. These concerns were manifested by the secession of six Southern States through February 1861, with five others to follow.
In the first session of the thirty-sixth Congress, held from December 5, 1859, to March 3, 1861, over two hundred measures relating to slavery were introduced. The scope of these measures ranged from prohibiting slavery to protecting it in those States where it existed. Such slavery protective actions were an attempt at reconciliation with the Southern slave States, enticements to discourage further State secessions and to encourage the seceded States to rejoin the Union. One such measure to protect slavery was originally introduced in the waning days of the thirty-sixth Congress by Representative Thomas Corwin of Ohio. This measure culminated in the proposal of this Amendment on March 2, 1861, only two days before the presidential inauguration of Abraham Lincoln.
Present Day Status
Unlike most of the constitutional Amendments proposed by Congress in the twentieth century, Congress did not specify a time frame in which Final Ratification must occur. As such, this proposed Amendment continues to be subject to ratification by three-quarters of the States. In order for this to occur, thirty-six additional State ratifications are necessary, which is extremely unlikely.
This proposed Amendment would have protected slavery by providing that there shall be no constitutional Amendment empowering the United States Congress to “abolish or interfere” with slave ownership, which was then legally practiced in a number of States and primarily in the Southern States. This congressional action was based, in part, upon the desire to placate Southern State concerns regarding the legal retention of slavery, especially in light of the inauguration of President Abraham Lincoln.
Although the subject matter of this proposed Amendment is clearly stale dated, its impact, if ratified, appears would be benign. The language of this proposed Amendment would only address future actions relative to “persons held to labor or service” in a State. Since the Constitution has already been amended to eliminate slavery by the Final Ratification of Article of Amendment XIII on June 30, 1865, the specific issue and subject matter of this proposed Amendment is moot.