Unratified Amendments: Protection of Slavery

This is the third installment of a series about unratified constitutional amendments. Today we’re looking at an amendment proposed during the lead-up to the U.S. Civil War that would have protected the institution of slavery.

When the second session of the 36th Congress convened in late 1860, the issue of slavery had grown increasingly divisive, and Congress was struggling to find ways to preserve the Union. Both the House and the Senate formed committees to tackle the slavery issue and attempt to quell the looming secession crisis. 

On January 14, 1861, the House committee submitted, among other measures, a constitutional amendment to protect slavery. This was an attempt to appease the Southern states, and while the amendment had some support, the required two-thirds of the House was not on board.

On February 26, 1861, Representative Thomas Corwin of Ohio introduced his own text for an amendment protecting slavery. It read: 

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.

HJ Res. 80 proposing a constitutional amendment to prohibit Congress from abolishing slavery (aka the Corwin amendment), 1861. (National Archives Identifier 24824293)

Two days later, the House approved Corwin’s proposed amendment by a vote of 133–65, just above the two-thirds threshold. The Senate took up the proposed amendment on March 2, 1861, passing it with exactly the two-thirds super majority needed: 24–12. 

Just before leaving office, President James Buchanan signed the amendment, unnecessarily, since the President has no constitutional role in approving amendments. Buchanan’s successor, Abraham Lincoln, who took office on March 4, sent the proposed amendment to the states for ratification. 

Joint Resolution proposing an amendment to the U.S. Constitution protecting the institution of slavery, 3/2/1861. (National Archives Identifier 4688370)

Had enough states ratified the amendment, it would have been the 13th Amendment to the U.S. Constitution. However, the amendment failed to stop Southern secession, and by that summer, 11 Southern states had seceded from the Union. For the next four years the U.S was embroiled in civil war.

In the final months of the war, Congress passed another slavery-related amendment, but this one had the opposite intention. It read: 

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Joint Resolution proposing an amendment to the U.S. Constitution abolishing slavery, 1/31/1865. (National Archives Identifier 1408764)

On December 6, 1865, Georgia became the 27th state to ratify the amendment, which pushed it over the three-fourths mark. On December 18, 1865, Secretary of State William Seward certified it, stating that the 13th Amendment abolishing slavery had been adopted as part of the U.S. Constitution effective December 6, 1865.

The next time Congress proposed a constitutional amendment to the states that didn’t pass was in 1926 in the attempt to regulate child labor.  

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