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The Corwin Amendment -- which would have made slavery constitutional and permanent -- reveals a deep flaw in the design of the U.S. Constitution. This undated photo shows a cover letter to the so-called "Ghost Amendment" signed by Abraham Lincoln. (North Carolina Department of Cultural Resources/AP)

Stephen Spielberg’s “Lincoln” could win the Academy Award for Best Picture. I’ve seen it three times, and have enjoyed each viewing more than the last. It is inspiring. It is moving. It is timely. But it tells only one half of the story — the good half — and leaves untold the bad, both about the man who freed the slaves and the Constitution he died defending.

The movie follows Abraham Lincoln, elected president of the United States in November 1860, as he lobbies aggressively and craftily to convince the House of Representatives five years later to amend the United States Constitution to make slavery unconstitutional. The amendment proposed to ban slavery across the land and authorize Congress to enforce the ban against any state that defied it.

The initial 13th Amendment -- also known as the Corwin Amendment -- would have made slavery constitutional and permanent -- and Lincoln supported it. (AP)

The initial 13th Amendment — also known as the Corwin Amendment — would have made slavery constitutional and permanent — and Lincoln supported it. (AP)

“Lincoln” focuses on the struggle to cobble together the constitutionally required two-thirds majority in the House. But there was much more to amending the Constitution. The anti-slavery amendment also needed two-thirds approval in the Senate and three-quarters approval from the states. It is hard to imagine that kind of consensus today on any issue, let alone on a subject that divides the nation as much as slavery did then. Nonetheless the anti-slavery amendment eventually passed and it is now inscribed in the Constitution as the 13th Amendment.

But the 13th Amendment we know now differs substantially from the one first proposed. The initial amendment would have made slavery constitutional and permanent — and Lincoln supported it.

This early version of the 13th Amendment, known as the Corwin Amendment, was proposed in December 1860 by William Seward, a senator from New York who would later join Lincoln’s cabinet as his first secretary of state.

The Corwin Amendment read as follows:

No amendment shall be made to the Constitution which will authorize or give to Congress 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 was an effort to placate the South and contain secessionist sentiment. It proposed to do three things. First, to protect slavery by giving each state the power to regulate the “domestic institutions” within its borders. This was an enticing carrot for the slave states: stay in the Union and you can keep slavery. Second, to dispossess Congress of the power to “abolish or interfere” with slavery. And third, to make itself unamendable by providing that “no amendment shall be made to the Constitution” that would undo the Corwin Amendment.

After Seward proposed the Corwin Amendment, then newly-elected President Lincoln defended the states’ right to adopt it. In his first inaugural address Lincoln declared that he had “no objection” to the Corwin Amendment, nor that it be made forever unamendable.

The Corwin Amendment won two-thirds support in both the House and the Senate in early 1861. Ohio was the first state to ratify the amendment, and Maryland and Illinois followed suit, but the onset of the Civil War interrupted the states’ ratification of the amendment. Had it been ratified, however, the Corwin Amendment would have become the 13th Amendment, forever protecting slavery instead of abolishing it. And the Amendment would have passed with the support of the man who later freed the slaves in the Emancipation Proclamation of 1863, orchestrated the constitutional death of slavery, and is by any measure one of history’s greatest leaders.

Although its ratification was disrupted by the Civil War, the Corwin Amendment is not actually dead. To this day, it lies dormant, ready to be ratified by the required number of states.

That the Corwin Amendment was approved in both the House and Senate, and subsequently ratified by some states, reveals a deep flaw in the design of the United States Constitution. Although its ratification was disrupted by the Civil War, the Corwin Amendment is not actually dead. To this day, it lies dormant, ready to be ratified by the required number of states. Its adoption by the House and Senate is now a constitutional fact that cannot be reversed.

Even though it was last approved by a state in 1861, if another 35 states voted today to approve the Corwin Amendment (or perhaps 36, since some dispute Illinois’ ratification vote), there would be a genuine question of constitutional law whether it overruled the current 13th Amendment.

Perhaps this is too far from reality to be taken seriously. But even its theoretical possibility should prompt us to ask difficult questions about the values the United States Constitution expresses by making the Corwin Amendment even the most remote of possibilities.

Between now and the Academy Awards on Sunday, it is likely that I will have watched “Lincoln” a fourth time. It is one of my favorite movies, for both the story and the actors that make it come alive. But what I admire most is how much “Lincoln” teaches us about our 16th president and our history, and how much we have yet to learn about both.

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Tags: Film/TV, History, Race

The views and opinions expressed in this piece are solely those of the writer and do not in any way reflect the views of WBUR management or its employees.

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  • http://www.facebook.com/futo.buddy Futo Buddy

    But even its theoretical possibility should prompt us to ask difficult questions about the values the United States Constitution expresses by making the Corwin Amendment even the most remote of possibilities.
    Question the values of the constitution? Thats a scary new trend.

    • Samaritan

      Yeah I didn’t understand that part. Is he suggesting we should take the constitution as a whole less seriously because of some arcane, irrelevant flaw?

      • http://www.facebook.com/futo.buddy Futo Buddy

        the amendment did not even pass which is evidence the system works.

        • http://www.facebook.com/profile.php?id=1068565340 Jimmy L. Shirley Jr.

          The South seceded. First, seven States, then after the tyrant called for their fellow States to invade, four more States seceded. Ratification of the Corwin Amendment became a moot issue.

          • BobbyT

            Maryland, which encompasses the District of Columbia, might have seceded if Lincoln had not had the secessionist legislators arrested and imprisoned. However, the Maryland secession convention had declined to act toward secession.

          • http://www.facebook.com/profile.php?id=1068565340 Jimmy L. Shirley Jr.

            Arresting duly elected State public officials based on suspicion. No matter that they were conducting the will of the people. And granted not everyone in Maryland was in favour of secession. That was the case in all the South. BUT, the majority WAS in favour.

            I would love to see another secessionist crisis arise just to see how it would be played out by the regime that happens to be in Washington City. Why? Because of the constant rhetoric championing “democracy around the world”. So if there was a referendum presented to certain States, a binding referendum, and the majority in those States voted FOR secession, which is democracy in action, would then those in Washington City move to suppress and oppress the will of the people? Would they then not be exposed for the hypocrites I think they are? Like democracy is good for the rest of the world but not good enough for Americans?

          • stevefranklin54

            Some principles cannot be subject to a popular vote.
            The Declaration of Independence called them “inalienable rights.”

            Otherwise, a majority of voters in a pure democracy could outlaw the practice of certain religions, forbid the publication of unpopular newspapers, banish persons who hold unorthodox views, ban the right to peaceful assembly, and eliminate the right of racial or ethnic minorities to vote.

            A tyranny by majority rule is no less desirable than a tyranny by one.

            Don’t confuse democracy with liberty.

            But if you accept the view that individual states, by popular vote, should have the right to secede from the nation, where does that right end?

            Could residents of New York City vote to secede from New York State? Could residents of Manhattan vote to secede from New York City? Could residents of Harlem secede from Manhattan? Could residents of 125th Street secede from Harlem?

  • Andrew Turner

    The Corwin Amendment as worded would forbid Congress from repealing it, placing it outside the powers of not only Congress but even the States to amend the Constitution. That would have made the amendment effectively above the rest of the Constitution, established as the supreme law of the nation. How could anyone serious about constitutional law have seen this clause as legally defensible?

  • http://www.capecodtoday.com/blogs/index.php?disp=bloggers citizenkane

    The first part of the Corwin Amendment simply perpetuates the tergiversation on slavery that prevailed at the Constitutional convention, whereas the second part is in such obvious violation of Article V that it’s surprising it was ever taken seriously.

    • http://www.facebook.com/profile.php?id=1068565340 Jimmy L. Shirley Jr.

      How is that??

  • jefe68

    Giving that the Voting Rights Act is now under attack in Alabama and some other Southern states it’s clear to me that while this kind of Amendment would hardly be enacted today the rights of minorities is still under attack by the same kind of mindset that drafted the vile and inhuman Corwin Amendment,

    http://www.nytimes.com/2013/02/18/us/politics/supreme-court-to-hear-alabama-countys-challenge-to-voting-rights-act.html?_r=0

    • BobbyT

      It’s not in the former “Jim Crow” states but in Northern states that have a low registration of Black voters. In the South Black registration is as high and higher than White voter registration.

  • Historian56

    Such an timely and interesting article – given the Oscars AND President’s Day. Well done. The movie was wonderful, but it’s fascinating to see how much more there was to the story. The richness and depth of our history is truly mind-boggling and this author managed to take something almost-forgotten and remind us in a fresh and timely way. Bravo.

  • stevefranklin54

    Consider the history of the 27th Amendment to the Constitution which regulates Congressional pay raises. Originally proposed in the 1790s, an insufficient number of states ratified it. But two hundred years later in the 1990s, more states acted on this proposal and it DID achieve ratification.
    Who knows how many other forgotten proposed Amendments are out there waiting to be brought to life?

  • Geoff Dutton

    “Lincoln” is a factually flawed movie, despite its great acting and superb atmospherics. It is upsetting that Richard Alpert is taking it at face value on this page. It’s a Hollywood movie, not an exegesis on the constitution. If commenting on docudramas is how we debate public policies now, it is a sad state to which conducting the affairs of state has devolved.

  • lawstudent

    I didn’t like the movie for the reason that this author suggests–it doesn’t tell the whole story. Not only is the Constitution deeply flawed but so was Lincoln himself. I’m not sure we should fear the Corwin Amendment ever being ratified but it is scary to think that it could be. By the way, the Corwin Amendment is not the only so-called “ghost amendment” in American history. There is also the Child Labor Amendment and the Titles of Nobility Amendment.

  • http://www.facebook.com/people/Jim-Woodward/731937958 Jim Woodward

    talk about the dumbing down of america. the author is a constitutional law professor, and don’t know the constitution? the corwin amendment, nor the equal rights amendment, can be ratified now, without the entire procedure beginning again. there is a seven year limit on ratification of a constitutional amendment

    • lawyer2

      Incorrect. The Corwin Amendment did not include a seven-year deadline for ratification.

      • BobTrent

        And no limitation in the Constitution, either.

      • Jim Woodward

        don’t be daft. the constitution specifies seven years for ratification of ALL amendments. it doesn’t matter what is included in the amendment

    • BobTrent

      Constitutional law deals with what the US Supreme Court says the Constitution means, not with what anyone else says it means.
      As unfair as this sounds, some authoritative body has to be the final arbiter of questions involving the Constitution. That body, for good or ill, is the US Supreme Court.
      Only if the Congress restricts the jurisdiction of the US Supreme Court relevant to a matter would this not be true.

      • Jim Woodward

        that is true, and unfortunately, the reason for so many egregious scotus decisions. the constitution means EXACTLY the same thing today as it did the day it was written. there are NO “evolving standards of decency” in the constitution, and scotus has often miserably failed in properly interpreting the constitution

  • http://www.facebook.com/GeorgiaFlagger Billy Bearden

    Of course the movie didnt dare touch the various subjects like a large group of Union Generals appointed by Lincoln were the failed revolutionaries from Europe in 1848. Or that Lincoln was getting mail from Karl Marx. Or that Lincoln was still shipping blacks back to Africa.

    No, the Emancipation Proclamation didnt free any slaves, it was by his own admission a war measure to keep Britain and France from siding with the CSA.

    • Spuddie

      The movie also left out the part showing where the guys who wave the confederate flag around now also like to dress up in women’s clothing and cruise rest stop men’s rooms.

      • BobTrent

        Bullshit. I suppose that if you can find one man who likes to dress as a woman (shirt and trousers??) among the thousands of Confederate flag wavers it’s sufficient to indict them all.
        Today how do you tell what constitutes “women’s” clothes anyway? Women commonly wear clothes that only a few years ago were considered exclusively men’s.

        • Spuddie

          Took you four months to respond to my post?

          I think Osama Bin Laden’s goat-mail courier service is faster than that! Jeez.

          Its bad enough your mind is still stuck in the 19th century, but are your communications as well?

      • SWalkerTTU

        I don’t know of many lumberjacks in the South, but I guess they’re OK.

  • http://www.facebook.com/profile.php?id=1068565340 Jimmy L. Shirley Jr.

    “and leaves untold the bad, both about the man who freed the slaves and the Constitution he died defending.”
    NAW!!! Wrong on both counts!

  • http://www.facebook.com/profile.php?id=1068565340 Jimmy L. Shirley Jr.

    And more importantly, this alone PROVES that if THE ONLY reason the Southern States seceded was to protect involuntary African servitude, they neednt have so done. They could have repealed their ordinances of secession, rejoined the US, taken part in the ratification process and there might yet still be the institution to this day.

    • Thatguy

      Lincoln had said over and over again on his campaign trail that he had no intentions of abolishing slavery in the south. The south simply did not trust a man elected solely by northern abolitionists. Also, the amendment did not allow for the expansion of slavery or offer any protection for runaway slaves. Finally, the south had already created a confederate government a little less than one month prior to the passage of the amendment in the house.

      Why would the south agree to an amendment that promised them so little so late? Why would they accept a compromise like that when they had already created a separate government that offered them everything they wanted?

  • BobbyT

    Lincoln was ready to do practically anything to keep the Southern states from seceding, or to get them to drop secession. The slavery question could be dealt with later in an undivided Union.

    Lincoln was not an integrationist or a desegregationist. He was a separatist. He did not believe the Blacks could soon coexist with the Whites, and supported deportation to Africa, for which Liberia was founded.

    Slavery by its nature meant the sexual use of the enslaved females by the masters. While socially disapproved by the upper class, it went on incessantly. And naturally resulted in large numbers of “mulattos” (Portuguese for “mules”), quadroons, octoroons, etc., mixed breed people. Many of the Abolitionists were not only opposed to slavery (of anyone, not just Blacks) but desired the separation of the Blacks from the Whites before further miscegenation occurred.

    Sally Hemings, allegedly T. Jefferson’s slave mistress, was the half-sister of his wife, Martha. It was said that Sally was a near-duplicate of Martha when she was a teenage girl. She was one-quarter Black, a quadroon. Her children were seven-eighths White, octoroons, and several of them lived as White as adults.
    This was exactly the sort of thing that fired up many Abolitionists to stop it once and for all by freeing the slaves and deporting the Black-appearing ones who could not “pass” as White.
    The Corwin Amendment, if ratified, would have made slavery a permanent institution in the USA. Importation of slaves had been prohibited effective January 1, 1808. The slave trade could be forbidden but if a slave was acquired legally the master could take his(her) slave(s) anywhere in the USA without losing them. Private transfers would have been protected. Only commercial slave dealing could have been abolished.
    Lincoln was a Great Man. He trampled the provisions of the Constitution that got in his way in order to protect and preserve the Constitution (!!). He exercised powers not delegated to the Executive (him) by the Constitution, which many presidents since have also done and is presently doing. If the USA had remained separated from the CSA the European imperial powers would have attempted to extend their influence in the Americas to a much greater degree, and likely with success.
    Two great irritants incited the CSA to secede: 1. Slavery was to be abolished without any compensation to their owners, who for the most part had acquired them in accordance with existing laws. 2. The import taxes were to be doubled, from 20% to 40%. The Southern states (those south of the Mason-Dixon line) were heavily dependent on import-export, far greater than the North. This was viewed as a death-blow to their economy. So the Civil War was over taxation, similar to the chief cause of the American Revolution, secession from England. Confiscation of the investment the owners had in their slaves and heavy taxation of the imports on which their commerce depended.

  • BobTrent

    Lincoln supported the “Corwin” amendment for one reason: to save the Union. He by all appearances believed that holding the Union together (though several states had already seceded) was more immediately important than the abolition of slavery, and that if the Union remained whole the slavery question could and would be dealt with later after passions had a chance to cool.

    Black Americans were not being forcibly shipped “back” (almost all were born in America) to Africa. Those who went did so voluntarily.

  • Brian Hughes

    “the man who freed the slaves and the Constitution he died defending”

    For a minute I thought this story was about Lincoln.

  • Glenn Green

    Abraham Lincoln was a scumbag Corporate Railroad Lawyer who excelled in screwing the common man and a career politician who destroyed true Liberty as envisioned by our Founding Fathers.
    The Spirit of the Constitution and our most primary founding document is the Declaration of Independence = (DOI) it gives Americans their prime directive to always be in control of the Government = whenever the current government does not act in the peoples best interest it is our sacred “Duty” to abolish it ASAP. The DOI is our only failsafe mechanism (THE RESET BUTTON) to protect us against a TYRANNICAL government. Abraham Lincoln’s policies of subjugation of the South at all costs forever rendered the DOI null and void and resulted in our enslavement as tax slaves forever with no recourse.

    Being forced into a UNION of States against our will reminds me of a husband who beats his woman into submission and forces her to marry him.

    The definition of slavery is being forced to work without compensation = (financial gain).

    The average American worker works 5 to 8 months of every year to pay for Federal and State Income taxes, property taxes, sales taxes, fuel taxes, manufacturing taxes on all raw materials, import taxes = taxes upon taxes = pay you taxes slave = all this was a result of Abe Lincolns policies. Our founding Fathers considered taxes evil = Abraham Lincoln and his cronies loved taxes they imposed the first Federal Income tax of 3% on every income over $800 in 1861.

    Before the South’s Subjugation we were a nation of Liberty = because the government took over America by force we are now a Nation of Laws = Rule of Law = and there is a law that governs every aspect of your life = 100s of thousands of laws, (3000 new laws and regs are written every year) regulations, ordinances that dictate what you can do, when you can do it , who you can do it with the very air we breathe and every drop of water is regulated all ultimately resulted because the South lost the war and the Federal govt. assumed complete control of every American.

    There is strong historical evidence that Ape Lincoln suffered from advanced syphilis, Marfan syndrome , was a closet homosexual all of which caused his inability to make competent decisions and resulted in the infection and insanity of his wife = Mary Todd.

    According to Lincoln’s biographer, friend, and law partner for eighteen years, William Herndon, Lincoln told him that he had been infected with syphilis in Beardstown in 1835 or 1836. Herndon wrote to his co-author “Friend Weik” in January 1891, wishing that he had not put the confidence in writing:

    When I was in Greencastle in 1887 I said to you that Lincoln had, when a mere boy, the syphilis, and now let me explain the matter in full, which I have never done before. About the year 1835-36 Mr. Lincoln went to Beardstown and during a devilish passion had connection with a girl and caught the disease. Lincoln told me this and in a moment of folly I made a note of it in my mind and afterwards I transferred it, as it were, to a little memorandum book which I loaned to Lamon, not, as I should have done, erasing that note. About the year 1836-37 Lincoln moved to Springfield and took up quarters with [Joshua] Speed; they became very intimate.

    At this time I suppose that the disease hung to him and, not wishing to trust our physicians, wrote a note to Doctor Drake, the latter part of which he would not let Speed see, not wishing Speed to know it. Speed said to me that Lincoln would not let him see a part of the note. Speed wrote to me a letter saying that he supposed L’s letter to Doctor Drake had reference to his, L’s crazy spell about the Ann Rutledge love affair, etc., and her death. You will find Speeds’ letter to me in our Life of Lincoln. The note to Doctor Drake in part had reference to his disease and not to his crazy spell as Speed supposes.

    Syphilis was suggested in Mary Todd’s medical history when Norbert Hirschhorn and Robert Feldman published an article in 1999 reviewing the work of the four doctors who had diagnosed her progressive spinal trouble. Finding a clear case of tabes dorsalis, Hirschhorn and Feldman argue convincingly that the doctors would have known very well by then that tabes was caused by syphilis in the majority of cases and would have opted to save her reputation (and to assure a benefit that might have been withheld by a censorious Congress) by stating that her tabes dorsalis was caused by an injury to her spine when she fell from the French chair.

    “Given the widespread medical knowledge about tabes dorsalis at the close of 1881 and what then was considered its most likely cause [syphilis], it was inevitable that the four physicians chose the least pejorative diagnosis, however marginally acceptable it was to progressive medical opinion.” Jonathan Hutchinson concluded that it was generally accepted that tabes occurs “almost solely” in those who have previously suffered from syphilis. P.J. Möbius went one step further: “The longer I reflect upon it, the more firmly I believe that tabes never originates without syphilis.”

     

    If Abe Lincoln had not invaded the South there would have been no war and no deaths as a result of the WAR. Lincoln’s policies of invasion and subjugation resulted in the deaths of 750,000 soldiers , the permanent maiming of 1.2 million Americans and the deaths of 175,000 Innocent Southern civilians. And Slavery would have ended in America without bloodshed just like it did in all other Christian countries worldwide. = Of special note , did you realize there are 20 to 40 million slaves right now in Muslim and African countries = HOW COME WE ARE NOT INVADEING, KILLING THE SLAVERS AND FREEING THE SLAVES IN AFRICA???? .

    Did you realize that throughout world history there were far more white people enslaved than black people. For example the Roman Empire lasted approx. 1000 years with a total population of approx 1 billion people. Of the total population at any one time 25% to 35% were slaves = approx. 400 million. 87 to 93% of these were persons captured and enslaved from Slavic countries = the word “Slave” is a derivation of the Latin word “SLAV”.

  • Steve Hall

    Do not forget about the “Stealth Amendment” which was originally proposed with the first ten amendments, but was not passed at that time, which is now part of the US Constitution! Prohibited Congress from giving itself a raise during the term when it was passed, but they have, of course, found a way around the amendment since it deals with their own pocket books. Proposed Sept. 25, 1789, passed May 7, 1992

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