Corwin amendment

The Corwin amendment was and remains a proposed amendment to the United States Constitution offered by Ohio Congressman Thomas Corwin during the closing days of the 2nd Session of the 36th Congress as House Joint Resolution No. 80. The proposed — but not yet ratified and technically still pending — amendment would have forbidden the Federal banning of slavery and was a last-ditch effort to avert the outbreak of the Civil War. Corwin's measure emerged as the House of Representatives' version of an earlier identical proposal in the Senate by William Seward.

On February 28, 1861, the United States House of Representatives approved the resolution by a vote of 133-65 (Page 1285, Congressional Globe). On March 2, 1861, it was approved by the United States Senate with a vote of 24-12 (Page 1403, Congressional Globe). A young Henry Adams observed that the measure narrowly passed both houses due to the lobbying efforts of Abraham Lincoln, the President-Elect.

The resolution was signed by President James Buchanan — shortly before President Lincoln was inaugurated — but it has long been established that a Presidential signature is unnecessary in the constitutional amendment process since the President has no formal role in it as noted in the 1798 case of Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378. By the same logic, a President is powerless to veto a proposed constitutional amendment. The Corwin amendment appears officially in Volume 12 of the Statutes at Large at page 251.

Ratification efforts began almost immediately after the measure's adoption and included a public endorsement in the inaugural address of Abraham Lincoln. The proposal was ratified by the legislatures of Ohio (May 13, 1861) and Maryland (January 10, 1862). Illinois lawmakers — sitting as a constitutional convention at the time — also approved it, although that action is of questionable validity. The amendment is known to have been considered for ratification in several additional states including Kentucky, New York, and Connecticut where it was either rejected or died in committee under neglect as other wartime issues came to preoccupy the nation's attention. In any case, this was and remains far short of the three-fourths of the states needed to amend the Constitution. With fifty states currently in the Union, approval by the legislatures of thirty-eight states would be required.

As recently as 1963, more than a full century after the amendment was proposed to the state legislatures by Congress, a resolution to ratify it was introduced in the Texas House of Representatives by Dallas Republican Henry Stollenwerck (House Joint Resolution No. 67, 58th Texas Legislature, Regular Session, 1963) but the resolution received no further consideration in that body than to be referred to its Committee on Constitutional Amendments on March 7, 1963.

Apart from its subject matter, the Corwin amendment also raises an important issue of constitutional theory, namely whether a democratic constitution can prohibit certain amendments to itself through what amounts to an entrenched clause. On the other hand, though, in the unlikely event that the Corwin amendment were to someday be ratified, a competing theory suggests that if a later amendment — contrary to an already-ratified Corwin amendment — were to be offered then (A) the Corwin amendment could be explicitly repealed by that later amendment as was the case with the 18th Amendment's explicit repeal by the 21st Amendment; or (B) by inference, the later amendment would be deemed to modify or completely obliterate an already-ratified Corwin amendment.

The text of the Corwin amendment is as follows:

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 Thirteenth Amendment in 1865 did abolish slavery and give Congress legislative powers.

See also the Twenty-seventh Amendment to the United States Constitution and Child labor amendment as well as Coleman v. Miller.