In a last-ditch effort to prevent Southern states from seceding on the eve of Abraham Lincoln’s presidential inauguration in 1861, Congress passed a constitutional amendment that would have prevented Congress from abolishing slavery in states where it already existed.
Had three-quarters of states ratified this proposal, it would have become the 13th Amendment to the Constitution – which we know today as the amendment that banned slavery after the war.
As the United States celebrates Juneteenth, which President Joe Biden made a federal holiday last year to commemorate the end of slavery in 1865, it’s striking to look back at how supermajorities in both houses of Congress endorsed this pro-slavery 13th Amendment just four years earlier, with support from anti-slavery Republicans.
In fact, Lincoln himself gave tacit approval to the amendment in his inaugural speech on March 4, 1861, just two days after the Senate passed it 24-12 – meeting the two-thirds threshold without a vote to spare. The new president said he had “no objection to its being made express and irrevocable,” and two weeks later, he sent letters to governors of all the states (including those that had seceded) with a copy of the joint resolution to amend the Constitution.
The amendment came out of a furious four-month period between Lincoln’s election in November 1860 and his inauguration in March 1861, when Congress also considered more far-reaching compromises that would have allowed the extension of slavery – which Lincoln forcefully opposed. For example, in a Dec. 10, 1860, letter to Sen. Lyman Trumbull, a fellow Illinois Republican, the president-elect urged him to reject “Pop. Sov.” – or popular sovereignty – which allowed people in federal territories to decide for themselves whether to enter the Union as free or slave states:
“Politics was changing almost minute-to-minute between November and March in response to seismic shifts – within states, between states, and how the federal government related to the people in the states,” said Ted Widmer, a historian at Macaulay Honors College of the City University of New York and author of the book “Lincoln on the Verge: Thirteen Days to Washington.”
“It was immensely complicated.”
Widmer noted that Lincoln’s view had always been that the Constitution protected slavery where it existed, but he objected vehemently to its expansion across the Mississippi River, into the territories.
Senate passage of the would-be 13th Amendment came two days after the House approved it 133-65, just squeaking past the two-thirds threshold. 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.”
It was known as the Corwin Amendment, for its House sponsor, Rep. Thomas Corwin, R-Ohio, a former U.S. Treasury secretary who chaired a House committee that was trying to find a compromise between the North and South in the months before the Civil War.
Although he was a Republican, Corwin was an “unorthodox” one, wrote University of Virginia professor Norman Graebner in an Ohio History Journal article, “Thomas Corwin and the Sectional Crisis.” Graebner described Corwin as a conservative politician who had declared repeatedly that a new state had the right to decide the question of slavery for itself. That was too far for most Republicans.
“Republicans agreed overwhelmingly to the principle of constitutional guarantees for slavery in the states, but they condemned Corwin for submitting territorial compromises to his committee,” Graebner wrote.
Still, there was enough support for Congress to pass Corwin’s constitutional amendment to protect slavery where it existed. The Senate sponsor was New York Republican William Seward, who would go on to become Lincoln’s secretary of state and close adviser during the Civil War.
When Lincoln mentioned the amendment in his inaugural speech, he was keen on keeping as many border states in the Union as possible, said Widmer.
“Seven states have seceded, but Virginia has not, which is very important,” he explained. “People forget that Virginia is still in the United States when Lincoln becomes president. And that was important for a lot of reasons, including the safety of Washington, D.C., as capital of the U.S.”
He continued, “So Virginia, Kentucky, Missouri, Maryland and Delaware are all in the Union when Lincoln becomes president. If he loses those states, he’s toast, basically. Virginia is so symbolic – it’s where so many presidents have come from, it’s an extremely large and important state. Lincoln doesn’t want to lose Virginia – or Kentucky, the state he’s born in. So he’s willing to compromise when it’s important to keep those border states in.”
Virginia did wind up leaving the Union, and Richmond soon became the capital of the Confederacy.
But why didn’t the Southern states just work to ratify the amendment, stay in the Union and declare victory?
“The Southern states didn’t believe the North would abide by the amendment,” said Mary Frances Berry, a history professor at the University of Pennsylvania and author of “Black Resistance/White Law: A History of Constitutional Racism in America.” “Their leaders didn’t trust Lincoln or the Congress.”
Widmer said some Southerners opposed secession, and the amendment might have appealed to them.
“But things were moving very, very fast, and it’s only one month from Lincoln’s inaugural to Fort Sumter” – the beginning of the Civil War. “By the time that happens, it’s just that much harder to compromise. It’s become a hot war at that point, and the desire for compromise slackens as a result.”
The Civil War essentially made the amendment moot, but a handful of states, including Maryland, did vote to ratify it. In 2014, the Maryland General Assembly voted to rescind that ratification.
Had the amendment passed and Southern states stayed in the Union, “they would have preserved their slave-based economy for a very long time,” Widmer said. “But by continuing to fight, they actually gave more power to Lincoln, who could initiate change through executive orders and military orders. The Emancipation Proclamation is a military measure. So the more they fought a total war, the more they created avenues for Lincoln to whittle away at slavery, and ultimately to end it.”
He noted that Brazil didn’t abolish slavery until 1888. “There’s a pretty good chance it would have lasted that long here too.”
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Frederic J. Frommer, a writer and sports historian, is the author of several books, including “You Gotta Have Heart: Washington Baseball from Walter Johnson to the 2019 World Series Champion Nationals.”