The ‘Ghost Amendment’ That Haunts Lincoln’s Legacy

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)

“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.

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.

Related:

• From ‘Great Emancipator’ To ‘Vampire Hunter’: The Many Stovepipe Hats Of Cinematic Lincoln
• Conn. Congressman Wants Correction To ‘Lincoln’
• Boston’s Influence On Lincoln’s Anti-Slavery Stance
• Doris Kearns Goodwin On Lincoln And His ‘Team Of Rivals’