Abraham Lincoln, Emancipation And The Corwin Amendment

By John C. Maloney Jr. · Originally published June 2016 · p. 34

Abraham Lincoln has rightly been called the Great Emancipator. The slow evolution of his beliefs regarding the institution of slavery and how best to eradicate it has been a favorite subject of Lincoln biographers and civil war historians. Before the Civil War began, Lincoln and his fellow Republicans nobly opposed the Crittenden Amendments in January 1861, which, if passed by Congress, would have protected slavery in the territories. Despite the threat of more seceding southern states, they were unwilling to abandon their core opposition to slavery in the territories to avoid civil war. Steven Spielberg’s movie, Lincoln, dramatized the long, painful road to emancipation, focusing on the sixteenth President’s role in the passage of the 13th Amendment abolishing slavery following the Emancipation Proclamation and several other war measures. Less well known in the saga of emancipation, however, is the last ditch and less noble effort of Lincoln and his fellow Republicans during February-March 1861 to avoid further secession, particularly by the Border States, by actually passing the Corwin Amendment to the Constitution and sending it to the states for ratification. The Corwin Amendment, unlike the failed Crittenden Amendments, was limited to protecting slavery in the 15 states where it existed. The Corwin amendment provided: “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 terms “domestic institutions “ of states and “persons held to…service” referred to slavery even though the term “slavery” appears nowhere in the text of the Constitution. Lincoln vigorously supported the Corwin Amendment along with his antislavery Republican colleagues, William H. Seward, Charles Francis Adams, Thomas Corwin, and his Democratic rival, Stephen A. Douglas. They were willing to trade permanent protection in the Constitution for the institution of slavery where it existed against any interference by Congress or by future amendment in exchange for peace with the secessionists. At least three states, all of which were non-slaveholding, ratified the Corwin Amendment before the Civil War overtook and effectively ended the ratification process. Ironically, had it been ratified, the Corwin Amendment would have become the 13th Amendment. Lincoln’s and his fellow Republicans’ role in the passage of the Corwin Amendment is morally troubling in many ways and underscores the many obstacles that emancipation confronted, even within the antislavery movement. Lincoln and his fellow Republicans often sought to appease the secessionists by emphasizing their view that they did not have either the constitutional power or the intent to interfere with slavery where it existed. In his First Inaugural Address, Lincoln now announced that “Holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable,” which was the purpose and effect of the Corwin Amendment. Lincoln and his fellow Republicans had assumed that slavery had been tolerated as a necessary compromise made by the founding fathers in 1787 but that it would ultimately collapse of its own economic weight. The Corwin Amendment, however, signaled a dramatic change in this assumption. Protection of slavery would now be enshrined in the Constitution. Lincoln and his fellow Republicans’ effort to ensure the permanent constitutional protection of slavery in the Constitution did not occur by accident. Lincoln and Seward were both seasoned lawyers; both had a deep knowledge of the Constitution, and both prized the precise use of language. They intended that the Corwin Amendment, if ratified, would achieve a permanent change in the Constitution. While it remains unclear whether, as a matter of constitutional interpretation, a later Congress or a court would nevertheless permit an amendment to repeal or modify an earlier “unamendable” amendment, Lincoln and Seward certainly knew that the Corwin Amendment would complicate and delay any emancipation in the affected states that might be attempted later. Lincoln and his fellow Republicans carefully chose their use of constitutional language preventing further amendments or acts of Congress. They also knew that the amendment process set forth in Article V was purposely slow, cumbersome and rarely to be invoked. It is no wonder then that upon hearing the news of the passage of the Corwin Amendment, the abolitionist Frederick Douglass, lost hope in the prospects of emancipation and planned to leave the country. The implications of the Corwin Amendment were clear and unambiguous to Douglass. The institution of slavery would now be elevated to the same “unamendable status” in the Constitution as the provision in Article V guaranteeing each state two senators. At the same time, the slave-holding states did not celebrate Congress’ passage of the Corwin Amendment or work towards its ratification. Even though it did not protect slavery in the territories, the Corwin Amendment nevertheless represented a significant strategic victory for the slave-holding states. If ratified, the Corwin Amendment assured the continuation and the protection of slavery in the Constitution – a position that they had sought since 1787. There is little evidence, however, that the slave-holding states gave the Corwin Amendment any serious consideration at all. Here, as in many other strategic matters, the slave-holding states in secession failed to act in what might be regarded as their own self-interest. The impetus to secession a civil war and the dreams of independence were apparently too overwhelming for the slave-holding states to recognize that the Corwin Amendment offered them an opportunity to claim a victory in an old constitutional struggle. Lincoln’s and his fellow Republicans’ role in passing the Corwin Amendment does not place them in an heroic light. That may help to explain why their role is not a frequent subject of discussion in the story of emancipation. American history is replete with examples of blessings from roads not taken. The failure to ratify the Corwin Amendment which may have prevented and certainly would have delayed emancipation is one of those examples. The civil war changed everything, including the existence of slavery, emancipation and their status in the Constitution. Mr. John C. Maloney Jr. is a lawyer who practices in New York City.