Stopping Time: The Pro-Slavery and 'Irrevocable' Thirteenth Amendment

Abstract

In the post-secession winter of 1861, both Houses of Congress approved a proposed thirteenth amendment to the U.S. Constitution. Three northern States even ratified the proposal before the Civil War intervened. That version of the thirteenth amendment, introduced in the House by Representative Thomas Corwin of Ohio, purported to prohibit any future amendment granting Congress power to interfere with slavery in the States. The Congressional Globe volumes for the winter 1861 legislative session include rich debates about whether the amending power could be used to limit future exercise of that same authority. Those forgotten debates offer significant insights for modern controversies about the exclusivity of, and limitations on, the extraordinary power granted in Article V of the U.S. Constitution. Recent years have witnessed an outpouring of academic writing on the amending power. Salient examples of this scholarship are the works of Yale Law School Professors Bruce Ackerman and Akhil Amar, who have raised distinct challenges to the claim that Article V constitutes the sole legitimate means for constitutional revision. Their imaginative and controversial work has in turn prompted vigorous debate among constitutional scholars, political scientists, and historians about the role Article V can and should play in our constitutional order. As voluminous as the recent Article V scholarship has been, at least one fundamental question has gone virtually unnoticed: what, if anything, prevents or limits the use of Article V to make procedural or substantive changes to the amending power itself? This question, which presents problems of the greatest theoretical difficulty, was posed starkly by Mr. Corwin's 1861 proposal. This article uses that Civil War-era proposal as a lens through which to study the tension between the claim that Article V articulates the exclusive procedure by which the Constitution may be amended and our nation's historical commitment to the ideal that the people are sovereign. Revisiting the long-forgotten Corwin Amendment illuminates current debates about the legal and political theory by which the U.S. Constitution can set forth the sole means for its revision. By understanding why the Corwin Amendment would have failed in its stated purpose (because a subsequent Article V amendment would have been sufficient to repeal it and grant Congress power over slavery), we discover certain fundamental constitutional principles. Those principles, important in their own right, also raise novel questions concerning the contemporary claims of Professors Ackerman and Amar that Article V cannot be the exclusive procedure for legitimate constitutional change.