Sunday, August 6, 2017

The Proposed 13th Amendments

Slavery was abolished by the 13th Amendment to the U.S. Constitution, passed in the Senate on April 8, 1864, the House on January 31, 1865 (Steven Spielberg's Lincoln centered on the House vote), and ratified by the required number of states on December 6, 1865.

But before the successful 13th Amendment, there were two failed 13th Amendments, the first of which is an historical curiosity, the second of historical impact and interest.

The first attempt at a 13th Amendment was passed by overwhelming majorities in the Senate and House in April and May of 1810, and submitted to the states for ratification.  The proposed amendment, referred to as Titles of Nobility, would have stripped American citizenship from anyone accepting a title of nobility, pension, present, office, or emolument from "any emperor, king, prince or foreign power".

We have no written record of any debate in Congress over the amendment, so the reasons for its proposal and passage remain debated.  There was a long history, dating back to the 1780s of state suspicion of foreign powers and of those beholden to them who might seek to reimpose monarchical rule.  Soon after ratification of the Constitution, some states did propose amendments along these lines but no action was taken by Congress.

The 1810 revival of the subject was likely due to continued wariness of Britain, as well as suspicion of Emperor Napoleon, then at the height of his power, compounded by the presence in the U.S. several years earlier of Jerome Bonaparte, the Emperor's younger brother, who married an American with whom he had a son.  Jerome later returned to Europe where his brother installed him as King of Westphalia, while at the same time ordering him to divorce his wife. 

Ratification was required by 13 states at the time in order for adoption of the amendment.  By early 1812, eleven states had ratified.  In December of that year, New Hampshire approved the amendment but in the intervening months Louisiana had been admitted to the Union, raising the threshold to 14 states.  No additional state ratified, and with the preservation of the U.S. under the terms of the 1815 Treaty of Ghent, ending the War of 1812 with Britain, and the fall of Napoleon later that year, the motivation behind the amendment had disappeared.

The second proposed 13th Amendment to pass Congress arose from attempts to stop secession and avoid a civil war.   The 36th Congress, which reconvened in December 1860, had frantically searched for a resolution to the secession crisis.  More than 200 resolutions on slavery and 57 Constitutional amendments were introduced before the proposed amendment passed.  Known as the Corwin Amendment because it was introduced in the House, which narrowly passed it with the required two-thirds vote on February 28, 1861, by Republican Congressman Thomas Corwin, it was designed to reassure the slave states regarding the status of slavery.  Corwin is little remembered today, but at the time was very well known, having previously served as governor of Ohio, a U.S. senator, and Secretary of the Treasury (and later named by President Lincoln as Ambassador to Mexico, a nomination well received by Mexico since, Corwin, like Lincoln, opposed the Mexican-American War).  Its text:
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 language tracks that of the Constitution in avoiding direct mention of "slavery" and protects slavery in perpetuity in those states where it was already established by state law.
 TCorwin.jpg(Thomas Corwin)

Introduced in the Senate by the fiercely anti-slavery senator from New York, William Seward, Lincoln's rival for the Republican presidential nomination, and later his Secretary of State, it was passed with no votes to spare on March 2. 

By the time the Amendment passed Congress, the seven states of the Deep South had seceded; South Carolina (December 20, 1860), Mississippi (January 9, 1861), Florida (January 10), Alabama (January 11), Georgia (January 19), Louisiana (January 26), and Texas (February 1).

Two days after the Senate vote President Abraham Lincoln was inaugurated.  In his address he spoke to the Corwin Amendment:
I understand a proposed amendment to the Constitution—which amendment, however, I have not seen—has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service ... holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.
For Lincoln the Corwin Amendment merely stated what he already believed; the Constitution did not provide any authority to the Federal Government to interfere with slavery in the states where it already existed.  That is why he did not object to it and what he meant by "holding such a provision to now be implied constitutional law".

Three states quickly ratified the amendment; Kentucky (April 4); Ohio (May 13); and Rhode Island (May 31), but events on the ground made it irrelevant.

On April 12, Confederate forces at Charleston, SC opened fire on the Federal garrison at Fort Sumter.  President Lincoln's willingness to respond with force to suppress the rebellion prompted the four states of the Upper South to secede; Virginia (April 17), Arkansas (May 6), North Carolina (May 20), and Tennessee (June 8).

As a legal matter, the effectiveness of the Corwin Amendment, if it had been ratified, remains a source of contention for scholars, with some maintaining it could never be altered while others argue a subsequent Constitutional amendment could revoke the Corwin Amendment, as was done with the Prohibition Amendment regarding alcohol.

It could also never have persuaded the states that had already seceded to rejoin the Union.  There could not be completely confident a subsequent Constitutional amendment could not override Corwin; they already had a complete guarantee now that they had seceded and adopted a Constitution explicitly recognizing slavery as a founding principle of the new nation; and the proposed amendment did not address their overriding fear that if they remained in the Union but slavery could not be extended to new territories, its continued existence could not be guaranteed - and they were very aware that this last concern was the explicit strategy of the Republican Party - contain and then slowly strangle slavery.  For example, there is nothing in the Corwin Amendment that would have prevented Congress from repealing the Fugitive Slave Act.

The Corwin Amendment would also have posed a problem for Republicans if it had prompted the seceding states to rejoin the Union.  The Dred Scott decision (1857) had upset the Constitution's delicate balancing act by declaring that blacks, slave and free, could not be citizens of the United States, free states could not prevent slaves from accompanying their masters, and that Congress had no power to forbid slavery in the territories. Overturning Dred Scott was at the heart of the Republican Party platform, and President Lincoln ignored the decision when he took office, ordering the issuance of passports to free blacks who had been denied them by the State Department on the ground they were not citizens.  It is difficult to see how the turmoil over slavery could have been quelled with both the Corwin Amendment and Dred Scott in place.

As often happened, Lincoln got to the heart of the matter in a letter he wrote to his friend Alexander Stephens of Georgia while he was still President-elect.  Lincoln and Stephens became friends when they both served in Congress during the late 1840s.  After Lincoln's election they initiated a conversation by letter in an attempt to find some way to head off secession.  Thought Stephens opposed secession, when Georgia left the Union he agreed to become Vice President of the Confederacy.  Lincoln wrote
Do the people of the South really entertain fears that a Republican administration would, directly or indirectly, interfere with their slaves, or with them, about their slaves? If they do, I wish to assure you, as once a friend, and still, I hope, not an enemy, that there is no cause for such fears.  The South would be in no more danger in this respect than it was in the days of Washington. I suppose, however, this does not meet the case. You think slavery is right and should be extended; while we think slavery is wrong and ought to be restricted. That I suppose is the rub. It certainly is the only substantial difference between us. 

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