The Thirteenth Amendment was in the news recently. No, not the Thirteenth Amendment that banned slavery in 1865. The “original” Thirteenth Amendment, sometimes known as the Corwin Amendment, passed by Congress and sent to the states for ratification in 1861.
The Corwin Amendment represented a last-ditch effort to find a compromise that would encourage seceding states to return to the Union. It would have forbidden any later amendment to the Constitution permitting Congress to abolish or interfere with slavery. The full text stated simply:
“Article Thirteen
“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 Corwin Amendment made the news because of the Lincoln connection, and at least one blogger, Brian Dierck, has noted that it still might, in theory, be ratified (although not as the Thirteenth Amendment). But I have not seen anyone discuss what, to me at least, is the most interesting issue associated with the Amendment: if it were ratified, would it in fact be effective? That is, could a Constitutional Amendment in fact bar further amendments to the Constitution?
I tend to agree with Akhil Amar of Yale Law School that the answer is probably “no.” In America’s Constitution: A Biography, Professor Amar writes (p. 292):
“[O]ne might plausibly infer from the Preamble’s text about the rights of “our Posterity” and from the very act of ordainment that what We, the People originally established, We could later amend. Ongoing popular sovereignty formed the Constitution’s bedrock principle, which could not be abrogated without undermining the very foundation of the document. On this view, if some putative amendment purported to eliminate the right of a later generation to adopt still further amendments, such an attempted abrogation of a genuinely inalienable right would not be a permissible amendment of the Constitution’s general project. Rather, it would represent an impermissible repudiation of the basic legitimating concept. Thus, in general the Constitution had to remain subject to amendment.”
As an aside, the Corwin Amendment may have left a loophole. It would have barred Congress from making any further amendment that would authorize Congress to interfere with slavery in the States. But what if Congress passed a further amendment that simply barred slavery, rather than an amendment that authorized Congress to bar slavery?
I know of no evidence suggesting that the form of the proposed Thirteenth Amendment was intentionally designed to leave this loophole, or that anyone in the seceding states found the proposed amendment unsatisfactory for this reason.
The Corwin Amendment represented a last-ditch effort to find a compromise that would encourage seceding states to return to the Union. It would have forbidden any later amendment to the Constitution permitting Congress to abolish or interfere with slavery. The full text stated simply:
“Article Thirteen
“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 Corwin Amendment made the news because of the Lincoln connection, and at least one blogger, Brian Dierck, has noted that it still might, in theory, be ratified (although not as the Thirteenth Amendment). But I have not seen anyone discuss what, to me at least, is the most interesting issue associated with the Amendment: if it were ratified, would it in fact be effective? That is, could a Constitutional Amendment in fact bar further amendments to the Constitution?
I tend to agree with Akhil Amar of Yale Law School that the answer is probably “no.” In America’s Constitution: A Biography, Professor Amar writes (p. 292):
“[O]ne might plausibly infer from the Preamble’s text about the rights of “our Posterity” and from the very act of ordainment that what We, the People originally established, We could later amend. Ongoing popular sovereignty formed the Constitution’s bedrock principle, which could not be abrogated without undermining the very foundation of the document. On this view, if some putative amendment purported to eliminate the right of a later generation to adopt still further amendments, such an attempted abrogation of a genuinely inalienable right would not be a permissible amendment of the Constitution’s general project. Rather, it would represent an impermissible repudiation of the basic legitimating concept. Thus, in general the Constitution had to remain subject to amendment.”
As an aside, the Corwin Amendment may have left a loophole. It would have barred Congress from making any further amendment that would authorize Congress to interfere with slavery in the States. But what if Congress passed a further amendment that simply barred slavery, rather than an amendment that authorized Congress to bar slavery?
I know of no evidence suggesting that the form of the proposed Thirteenth Amendment was intentionally designed to leave this loophole, or that anyone in the seceding states found the proposed amendment unsatisfactory for this reason.
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