The Other Thirteenth Amendment(s)

By David A. Carrino, Roundtable Historian
The Cleveland Civil War Roundtable
Copyright © 2014-2015, All Rights Reserved

Editor’s note: This article was the history brief for the February 2015 meeting of the Cleveland Civil War Roundtable.

The acclaimed movie Lincoln focuses on passage of the Thirteenth Amendment. But before this Thirteenth Amendment was even conceived, there was another proposed Thirteenth Amendment that was far different in its intended objective than Lincoln’s Thirteenth Amendment. This Thirteenth Amendment was passed by Congress on March 2, 1861, two days before Abraham Lincoln’s first inauguration. In contrast to Lincoln’s Thirteenth Amendment, which abolished slavery, this other Thirteenth Amendment protected slavery by denying to Congress the power to pass either laws or a constitutional amendment to interfere with or abolish slavery. Moreover, Abraham Lincoln publicly expressed support for this Thirteenth Amendment.

James Buchanan

In response to the secession crisis, which increased in severity after Lincoln’s election in November 1860, outgoing President James Buchanan asked Congress in December 1860 to pass an amendment that would safeguard slavery. This was an attempt by Buchanan to appease the southern states into remaining in the Union, and the House of Representatives organized a committee to draft such an amendment. The head of this committee was Ohio Congressman Thomas Corwin, and the proposed amendment that resulted bears his name as the Corwin Amendment, although Corwin did not draft the amendment. The Corwin Amendment was only one of numerous congressional resolutions that were proposed to mollify the South and put an end to threats of secession, but of all these resolutions, the Corwin Amendment came closest to being enacted. At the time, there were twelve amendments to the Constitution, which would have made the Corwin Amendment the thirteenth upon its ratification.

Thomas Corwin

The Corwin Amendment reads, “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.” In other words, this Thirteenth Amendment not only prohibited Congress from interfering with slavery, but also prohibited Congress from passing an amendment that would abolish this Thirteenth Amendment. After the Corwin Amendment was drafted, it became the subject of acrimonious debate in the House of Representatives. In one exchange, a House member who opposed the amendment pointed out that although the unspoken subject of the Corwin Amendment was slavery, other “domestic institutions” of the states were also protected. This House member pointed this out by stating, “Does that include polygamy, the other twin relic of barbarism?” In response, another House member asked, “Does the gentleman desire to know whether he shall be prohibited from committing that crime?”

The Corwin Amendment was passed by the House of Representatives on February 28, 1861 and by the Senate on March 2, 1861 in a rare Sunday session after two days of intense debate. Ironically, the senator who guided passage of the Corwin Amendment in the Senate, and, indeed, had been most instrumental in drafting the amendment, was William Seward. There is also evidence that President-elect Abraham Lincoln had input into the amendment. After the amendment was passed by Congress, outgoing President James Buchanan fixed his signature to it, even though, according to the Constitution, the president has no role in the ratification of amendments. Thus, not only did Buchanan improperly put his signature on something to show his affirmation, but that affirmation was given to something which was a bad idea. However, another and more highly regarded president also gave public support to the Corwin Amendment. Two days after the Corwin Amendment was passed by Congress, Abraham Lincoln stated his support of it in his First Inaugural Address when he said, “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…(H)olding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.” It fell to the newly elected president to send copies of the Corwin Amendment to the states for consideration, including the states that had already seceded. Three states ratified the proposed Thirteenth Amendment: Ohio, Maryland, and Illinois (although a procedural issue calls into question the ratification by Illinois).

The note that Abraham Lincoln sent to the governor of Maryland with the Corwin Amendment

The secession of the southern states and subsequent Civil War made ratification of the Corwin Amendment unnecessary, but the amendment raises two interesting constitutional issues. First, is an unamendable amendment constitutional? The Corwin Amendment took away congressional authority to amend it, but does such a provision violate the Constitution? The second issue points out a flaw in the Constitution. In the view of some, the Framers of the Constitution were closer to infallibility than the pope. But there is an omission from the Constitution with regard to amendments, and that omission is a time limit for ratification. Because of this, it is technically possible (albeit unlikely) that the Corwin Amendment can still be ratified. In fact, in March 1963, more than 100 years after Abraham Lincoln sent the Corwin Amendment to the states for consideration, a Texas state representative named Henry Stollenwerck introduced a resolution for Texas to ratify the Corwin Amendment. Stollenwerck was not attempting to bring slavery back to Texas or to prevent Congress from interfering with the “domestic institutions” of Texas. His purpose was to bring attention to the lack of a time limit on unratified proposed amendments.

We now know that the Thirteenth Amendment to the Constitution abolished slavery in the United States. But a proposed amendment that could have been the Thirteenth Amendment would have had the opposite effect by protecting slavery from any interference by Congress. As it happens, the Corwin Amendment was chronologically the second potential Thirteenth Amendment. An amendment that was approved by Congress in 1810, at a time when there were twelve amendments, was the first to have the opportunity to be number thirteen. This first potential Thirteenth Amendment, which came within two states of ratification, would remove U.S. citizenship from any citizen who accepts a title of nobility from a foreign country. Like the Corwin Amendment, the amendment dealing with titles of nobility has no time limit and can technically still be ratified. It is unlikely that the nobility amendment will ever be ratified, but if that were to happen, it is fortunate for presidential candidates of both the Democratic and Republican parties that the amendment specifically prohibits titles of nobility from foreign nations, because this allows these candidates to maintain the U.S. citizenship that is required for the presidency while still retaining the domestic nobility that presidential candidates nowadays seem to feel they possess.