A Side-Note on the Corwin Amendment

If you’re not familiar with the Corwin Amendment, then you probably haven’t dived into the deep depths of the Neo-Confederate movement. NC’s, in their desperate attempt to somehow justify the Confederacy, will look for anything to disparage Lincoln. In their “spaghetti” method (throw anything up against the wall and see what sticks), they’ll sometimes bring up the Corwin Amendment.
First, let’s lay out the facts regarding this. Second, we’ll see why NC’s think this is evidence for their case. Finally we’ll respond to their arguments and submit some final thoughts on the subject.
What was the Corwin Amendment? According to this great article summary on it, here’s the skinny on it:

 In December 1860, President James Buchanan requested Congress to propose an "explanatory amendment" with regard to slavery. In the house, Ohio Representative Thomas Corwin was selected as the chairman of the committee; and in the senate, William H. Seward took the lead in sponsoring the amendment. In his correspondence during the month of December, president-elect Lincoln was adamant that there be no compromises with regard to the extension of slavery. In a meeting with Thurlow Weed, Seward's Republican ally in New York, Lincoln offered three compromise proposals, and Weed passed this information to Seward. Upon his return to the Senate, Seward introduced three resolutions to the Senate committee. One resolution not included in Lincoln's proposals offered that "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." In other words, the amendment would forever guarantee the right of the Southern people to own slaves. With much debate, the amendment passed both houses of Congress on March 2, 1861, two days before Lincoln took office.

Why was this gaining support? As we’ve discussed, right after Lincoln was elected but before he took office, southern states started declaring that they were seceding. Shots had not yet been fired, but it was becoming obvious that this was the way we were heading. Cooler heads tried their best to hold the Union together, and the only way they could see to do that was to somehow reassure the slaveholding south that their Institution was in no danger of being abolished.

What was Lincoln’s position on it? In his first inaugural address, he openly stated that he “had no objection to its being made express and irrevocable.” He then sent form letters to several governors, including those of states which had officially seceded, which did not endorse it but merely transmitted the text of the proposed amendment and that the necessary congressional approval had passed. All that remained was three-quarters approval of the states to pass.

So what’s the point here? Why do NC’s bring this up?

Apparently their thesis is that Lincoln really was egregiously racist and didn’t really care about slavery. He only cared about political power by any means necessary. We’ve handled this in other postings, but let me summarize my conclusions:

1) Lincoln held racial views which we’d classify as racist today, and he didn’t believe (at least at first) in full political, legal, and social equality among the races. In this aspect of his character, he was no worse than the vast majority of his peers, and quite better than most of them, and light-years ahead of just about everybody in the Confederacy.
2) Someone could hold horrible racial views and still be anti-slavery, and Lincoln is a great example of this. He absolutely hated slavery with a passion, saw it as a vile betrayal of the principles upon which our country was founded, and longed to see it (peacefully) excised as the cancer it was.
3) He repeatedly and clearly stated—and there’s no evidence to doubt his sincerity—that he had no intention (or the legal authority) to force the end of slavery anywhere it already existed. He did, however, adamantly oppose—in accord with his Party’s platform—the expansion of slavery where it wasn’t already legal, especially in the Federal Territories.
4) But even more than he hated slavery, he loved his nation and the Constitution even more. When he called this Grand Experiment “the last best hope of earth,” he meant every word, and that meant he had to preserve it as the precious jewel it was. And a sine qua non of liberty was rule of law as expressed by the Constitution.
5) Therefore, as he made it clear, his top priority was not getting rid of slavery. He never claimed it was, quite the opposite in fact. His top priority, with not even a close second, was the preservation of his country and rule of law under the Constitution. He repeatedly and clearly stated this beginning decades before his election and all during his presidency.

There are some clarifying points to consider on this:

• If you're at all familiar with the basics of our Constitution, then you ought to know that the President doesn’t have any official say in the amendment process. It’s passed by a 2/3 vote in the House and Senate, then by a ¾ vote of the individual states. Lincoln didn’t propose the amendment, nor could he have any official part in its passage or defeat. Any input he’d have would be informal arm twisting.

• There is some evidence that, yes, Lincoln did support it, at least in some form and to some degree. There’s some debate as to how much the final wording expressed his desires, but we can’t whitewash the fact that at least in private, he did urge its passing. He was that desperate—for good or bad—to preserve the Union.

• However—and this is something we haven’t gotten into enough in this series—the views of Lincoln on race and slavery changed over time. Read his statements on these subjects prior to the War and in the 1st part of his administration, and they’re very different from his speeches and letters near the end of the War and his life. I’d like to think that part of that is due to the ongoing influence of--and exposure to-- Frederick Douglass, but there are probably other factors as well. The stories of incredible bravery and heroism of black Union soldiers certainly moved most Americans towards enlightenment in this area, so perhaps it did Lincoln as well. No matter the reason, it’s indisputable that the same man who supported the Corwin Amendment ran for his second term unequivocally with passage of an abolitionist 13th Amendment on his platform. He never lived to see it go into effect, but the amendment forever excising this cancer on liberty was something he campaigned on in his second term.

• The amendment wouldn’t really change anything “on the ground.” Everyone but the most hard-core abolitionists agreed that the federal government had no legal right to ban slavery in the states where it existed. On this point Lincoln agreed with the fieriest secessionists. The point of contention was on the extension of slavery to where it didn’t already exist. Did the federal government have the right to ban slavery in the Territories before they became states? When a Territory became a state, how would it be determined if it was going to be slave or free? These were the types of questions which divided slavery-loving Democrats and slavery-hating Republicans. And of course the morality of slavery itself, which also tended to adhere to party lines.

And the amendment would change absolutely none of this if it passed. All that the amendment would do would officially protect slavery in the states where it was already legal. In other words, it was basically a sort-of promise or commitment that the federal government—led by Republicans—wouldn’t swoop in and try to make slavery illegal in the South, which they had no intention of doing anyway.

Now to be fair, it does say that at no time could a later Amendment be passed to outlaw slavery. Therefore, theoretically if this was passed, you could make an argument that any later anti-slavery Amendment that would be passed (like the real-world 13th) would be null and void. I get that argument. If it had passed, this would've been the only one which theoretically would prevent any later Amendments from voiding it, like the 21st repealed the 18th. However, in the real world, there's no reason why we still couldn't just have interpreted it in such a way that we could pass another Amendment voiding it. I don't think it's really possible to set up an Amendment which voids any further Amendment on any subject. That's the point of the amendment process. But of course all of this is just speculation and counter-factual.

Let me see if I can come with a good illustration.

Say that my neighbor—paranoid mental case that he is—somehow gets it in his head that I’m going to break into his house and steal his pornography collection and destroy it. He’s seen my webpage in which I make clear that I hate pornography in all its forms, and I strenuously support laws which would make it illegal to have obscene pictures on billboards where children can see them.  Somehow he’s convinced that my convictions and positions are going to somehow lead to me breaking into his house and doing this. He accuses me of wanting to do this over and over and over, and in every conversation (each of which is becoming less and less pleasant as time passes), he brings this up. My response every time: “No, I’m not going to do that. I personally despise pornography. It goes against everything I stand for. I don't want pornography on public billboards. But I value things like property rights and rule of law as well, along with other things like freedom of conscience.” I promise him on my solid word as a Christian that I’m never going to break into his house and do this. If I ever do bring up the subject of his porn, it’s only to try to convince him of its destructiveness and his need to get rid of it. But he somehow translates my attempts at moral persuasion into a stated intent to commit burglary in the furtherance of my value system.

So finally, after putting up with this nonsense for months, I make a proposal: We sit down and put on paper a formal agreement where I officially swear that I’m never going to break into his house, that I’m going to respect his private property and won’t break the state and city laws which prohibit me from acting on my personal convictions on pornography. In other words, I go ahead and make a solemn promise on paper that I’m not going to do what I wasn’t going to do anyway. 

That’s basically what we have with the Corwin Amendment.

Why are NC’s bringing this up? I think most of them are sincere and not racist. I really do. But to brutally frank, this really smells of a desperate attempt to defend the Confederacy by positing a counter-argument that everyone else was just as bad on the issue on slavery. It's a pretty foolish attempt at moral equivalence, something to which conservatives normally are immune. People sometimes seem to think 1) We’re all guilty of sin in some form and degree, therefore 2) there’s absolutely no moral distinction to be made between Hitler and Mother Theresa. I definitely agree with the premise, but the conclusion is nonsense on stilts.

And once again, I really think that this piece of evidence fits much better in the hands of the prosecution than in the hands of the defense. How so?

Well, first and foremost it seems odd to condemn Lincoln as 1) a tyrant who rolls over the Constitution like a bulldozer over a sandcastle, and at the same time as 2) someone who didn’t do enough about slavery, who didn’t just unilaterally declare it illegal 5 minutes after his inauguration. Which is it?

What was the end result of the proposed Corwin Amendment? Why wasn’t it adopted into our Constitution? A great irony, which NC’s love to point out, is that if it was enacted, it—an amendment formally enshrining slavery in the Constitution—would’ve been the 13th Amendment instead of the one we know and love, the one which outlaws slavery everywhere in the United States. So why do we have the 13th outlawing slavery instead of the one protecting slavery?

Because the Confederacy wouldn’t listen. This wasn’t done in a corner. It was common public knowledge that the amendment had passed both houses of congress. But this wasn’t good enough for them. As Lincoln had made it plain before,

These natural and apparently adequate means all failing, what will convince them? This, and this only; cease to call slavery wrong, and join them in calling it right. And this must be done thoroughly -- done in acts as well as in words. Silence will not be tolerated -- we must place ourselves avowedly with them. Douglas's new sedition law must be enacted and enforced, suppressing all declarations that Slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. We must pull down our Free State Constitutions. The whole atmosphere must be disinfected of all taint of opposition to Slavery, before they will cease to believe that all their troubles proceed from us.

And of course they knew that slavery had to expand or die. It wasn’t enough for them to be left alone; the territories had to allow slavery, all bans on slavery in free states had to be overturned, and Fugitive Slave laws had to be enthusiastically enforced.

Keep in mind that in their own Constitution, they made this intention plain:

Art. IV, section 3, Clause 3 The Confederate States may acquire new territory; and Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the Confederate States, lying without the limits of the several Sates; and may permit them, at such times, and in such manner as it may by law provide, to form States to be admitted into the Confederacy. In all such territory the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected be Congress and by the Territorial government; and the inhabitants of the several Confederate States and Territories shall have the right to take to such Territory any slaves lawfully held by them in any of the States or Territories of the Confederate States.

So even though the congress offered this to the Confederacy (with some level of support from Lincoln), they flatly turned it down and continued on this evil and crazy path. So if this didn’t deter them, what would?