Abraham Lincoln and the Corwin Amendment

Most serious historical overviews of the Civil War contain at least a brief mention of the Corwin Amendment, the last-ditch compromise effort to protect slavery where it existed by enshrining it in the Constitution. They also do so tepidly and seldom acknowledge it as anything more than a historical footnote.

Yet for a brief moment in March 1861, it was at the center stage of the secession crisis – the sole realized product of months of desperate compromise attempts in the lame duck winter Congress of 1860-61. It passed the requisite two-thirds majorities in the House and Senate only hours prior to Abraham Lincoln’s inauguration in March 1861, and went out to the states for ratification a week later. Its text is eerily simplistic, not to mention morally unsettling given what it sought to attain:

“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 amendment failed to lure back the secessionists or even attain ratification, being overcome by the Civil War and largely forgotten.

I first came across the Corwin Amendment in my own studies a decade ago while writing an undergraduate senior thesis on the secession crisis, and little new has been written about it since then. Aside from the aforementioned proliferation of passing references, most of which treat it as a quaint side story to the secession crisis, the only truly thorough analysis of this subject was written half a century ago by R. Alton Lee for the Ohio Historical Society.

So why have historians generally dodged this subject, or at least neglected it by relegation to a curiosity? First and foremost, the amendment’s status as a “path not taken” (and fortunately so from a modern constitutional perspective) has caused it to be overshadowed by other events in its vicinity. Second, there is a very strong level of discomfort created by the realization that slavery very nearly became a permanent and explicit fixture of the Constitution, as recently noted by Daniel W. Crofts: the Corwin “amendment tells modern Americans something about our national history that we do not want to know.” Third, it tells us something about a pragmatist side to Abraham Lincoln’s racial views and in doing so casts the “Great Emancipator” in all too human terms (a subject I’ve addressed at length in other areas of his presidency).

But the story is worth investigating as an example of political behavior in times of high-stakes crisis, and the current attention being given to the causes and consequences of the Civil War provides such an opportunity.

Curiously, the amendment’s namesake – Ohio Rep. Thomas Corwin – was neither its originator nor even its primary sponsor. He inherited the proposal as the Republican chairman of the “Committee of Thirty Three,” a hastily-convened ad hoc legislative committee in the House that handled compromise proposals to avert the secession crisis. Its original House sponsor was committee member Charles Francis Adams, and even he received the text from the Senate version introduced by Lincoln’s soon-to-be Secretary of State William H. Seward. How Seward came to propose the measure is itself a matter of historical uncertainty, though a decent amount of evidence points to none other than Lincoln himself. As Lee’s article details and surviving letters attest, Seward introduced the amendment to the Senate following a conversation with Republican operative Thurlow Weed. A long time Seward ally, Lincoln summoned Weed to Springfield for a meeting on December 20, 1860 to talk about the prospective compromise measures being floated in Congress. Weed returned to New York with a short memorandum from Lincoln outlining his thoughts on the fugitive slave clause, though saying little about a constitutional protection for slavery. He also apparently told Seward “verbally, the substance of the suggestion [Lincoln] prepared for the consideration of the Republican members,” as Seward informed Lincoln in a letter of acknowledgement dated December 26. Seward described Weed’s “verbal” conveyance as a resolution stating “That the constitution should never be altered so as to authorise Congress to abolish or interfere with slavery in the state” – a clear description of the Corwin Amendment, which he presented the same day to the Republican members of the Senate’s compromise “Committee of Thirteen.”

Could Lincoln have actually been the unidentified co-author of the Corwin Amendment? Much of the current consensus on this question has followed from the work of David M. Potter, who argued in the 1940’s that Seward and Weed either misinterpreted Lincoln or intentionally deviated from his instructions. Lee makes a stronger case for Lincoln’s role in its genesis, though it is significantly less acknowledged in the historical literature. Supportive evidence may be found elsewhere in Lincoln’s papers though. First, Weed and Seward were not the only recipients of Lincoln’s instruction. The day after his meeting with Weed – December 21 – Lincoln also notified Illinois Senator Lyman Trumbull to expect “three short resolutions which I drew up, and which, on the substance of which, I think would do much good.” Weed also showed Lincoln’s memorandum to Sen. Hannibal Hamlin of Maine, the incoming Vice President, on or slightly before December 27. Though Hamlin’s description of the conversation in a letter back to Lincoln conveys little about their content save to note the aforementioned memorandum received by Seward, it also post-dates Seward’s presentation of the Corwin Amendment’s text to the Republican members so he evidently believed both came with the sanction of Lincoln.

Here’s where a bit of historical detective work must enter the discussion. On December 28, Lincoln sent another letter to Trumbull detailing a visit from Duff Green, who came to Springfield on an informal mission from outgoing President James Buchanan to ascertain the President-Elect’s positions on secession and prod him for a public statement on the compromise measures working their way through Congress. Lincoln was necessarily guarded in his dealings with Green, a longtime Washington political operative who had active lines of communication with figures on both sides of the secession issue. Instead of answering directly, Lincoln drafted a short memorandum for Green and forwarded it to Trumbull, instructing the allied Republican senator to share it with Seward and Hamlin and release it only if they believed it would aid their cause. One stipulation for public release was that Green must also obtain signatures of support from senators in the seceding states. Notably, Lincoln’s Green Memorandum of the 28th suggested his opposition to a constitutional amendment in abstract terms, contingent on the wishes of “the American people.” Yet it also contained a specific statement of his position on acceptable compromise measures. Lincoln suggested he would favor a proposition nearly identical to what Seward had put forth in the Corwin amendment: “I declare that the maintainance inviolate of the rights of the States, and especially the right of each state to order and control its own domestic institutions according to its own judgment exclusively.” He also signaled to Trumbull that this language was adapted “from the Chicago Platform” of the Republican Party, though he “need not” tell Green this. This unusual exchange of documents with Trumbull ultimately amounted to little, as they decided against publicly releasing the “Green Memorandum” though its gist was privately communicated to Green by Trumbull a few days later.

But what does this tell us about Lincoln’s views of the Corwin Amendment in its infancy? Recall that Seward introduced the measure and informed Lincoln of its introduction to the Republican committee members on December 26th. This letter was Lincoln’s first signal that Seward had acted on his instructions to Weed at their meeting on the 20th, and its news had not yet reached Lincoln in Springfield by the 28th when he drafted the “Green Memorandum.” We know this because Seward’s letter has a postmark indicating it was only processed in Washington, D.C. on the 27th. That the “Green Memorandum” would contain a statement supporting the same ideas expressed in Seward’s separate Corwin Amendment therefore suggests very strongly that Lincoln and his future Secretary of State were on the same page.

Seward’s amendment worked its way through Congress over the next two months, eventually finding a path to the floor on the House side via the sponsorship of Adams, and then Corwin. For his own part, Lincoln made no public statement about the amendment until after its adoption (he described it and stated in his first inaugural address on March 4th that he had “no objection to its being made express and irrevocable”). Yet as Lee thoroughly documents, Lincoln actively lobbied behind the scenes to drum up support for the amendment after he arrived in Washington in late February. A young Henry Adams, who was clerking for his congressman father and Corwin Amendment co-sponsor Charles Francis Adams, affirms this as well, noting that the amendment’s adoption by the narrowest of two-thirds majorities came only because of “some careful manipulation, as well as the direct influence of the new President.”

As noted, the Corwin Amendment faltered during ratification as the Civil War overtook it. The slaveholding border states of Maryland and Kentucky welcomed the measure as did Ohio and Illinois, two northern states where racism ran strong in the white population and discriminatory “Black Codes” were in effect. Otherwise, the Corwin Amendment was forgotten.

A final note should be made about the Corwin Amendment’s legal and philosophical implications. This last of the pre-Civil War compromise attempts over slavery pertained to a narrow piece of ground in the political center, its support coming from the border states of the south and the “moderates” of the Republican Party, foremost among them Lincoln. Paradoxically, its most likely constitutional effect – a clear and affirmative declaration of a pro-slavery character to the Constitution – would have had its strongest intellectual impact in the radical extreme of the abolition movement. Had it been ratified, the Corwin Amendment would have once and for all settled the great intellectual debate over whether the Constitution was in fact a pro-slavery pact with the devil, as the William Lloyd Garrison asserted, or whether slavery itself was an inherent violation of constitutional legitimacy and therefore unconstitutional, as Lysander Spooner maintained.