I·CONnect

—Richard Albert, Boston College Law School

Article V entrenches rules to formally amend the United States Constitution. It has been used to make and memorialize many democratic advances since the country’s founding, from the First Amendment’s protections for speech and religion, to the Fourteenth Amendment’s guarantee of equality, to the Twenty-Sixth Amendment’s expansion of the right to vote.

But we should not romanticize Article V. For one thing, Article V is not a vehicle for direct popular choice. To the extent Article V amendments reflect popular choice, that popular choice is mediated through elections for Congress, state legislators, or convention delegates. For another, as David Strauss has argued, Article V may actually be irrelevant insofar as some Article V amendments have done little more than ratify changes that had already been made.

There is another reason to moderate our enthusiasm for Article V: just as it may be deployed to entrench new rights and protections, it may also be used to achieve less noble ends.

Consider the Corwin Amendment. Proposed in 1860, the Corwin Amendment sought to make slavery constitutional. Its text reads as follows:

No amendment shall be made to the Constitution which will authorize or give to Congress 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 Corwin Amendment has three notable features: (1) constitutional slavery; (2) congressional debilitation; and (3) entrenchment. First, the Corwin Amendment proposes to protect the institution of slavery by leaving to each of the states the power to regulate what happens with the “domestic institutions,” namely slavery, within its borders. Second, the Corwin Amendment proposes to secure the states’ right to practice slavery by dispossessing Congress of the power to “abolish or interfere” with slavery. Third, the Corwin Amendment proposes to entrench itself in a special way: by precluding any amendment to it.

The Corwin Amendment passed both the U.S. House of Representatives and the U.S. Senate in 1861 by the required two-thirds majorities. President James Buchanan subsequently signed the congressional act proposing the amendment before it was sent to the states for their ratification. Ohio and Maryland then ratified the Corwin Amendment by state legislative vote, and Illinois ratified it by constitutional convention.

And then the Civil War began. That stopped the process of ratification. The Civil War ultimately led to the Thirteenth Amendment, which abolished slavery.

The Corwin Amendment highlights the question of unamendability under the United States Constitution.

Was the Corwin Amendment as proposed really unamendable? Some scholars have interpreted the Corwin Amendment as making both itself and slavery unamendable, and therefore proposing to entrench in the United States Constitution an absolutely unamendable constitutional provision.

There is another reading of the Corwin Amendment—one that does not read it as unamendable.

First, it may be that the Corwin Amendment does not make itself unamendable. It does not entrench language barring an amendment to itself, something that we otherwise see in the German Basic Law, which expressly states that “Amendments to this Basic Law affecting … the principles laid down in Articles 1 and 20 shall be inadmissible.”

Second, as to whether the Corwin Amendment makes slavery unamendable, look again at the text of the Corwin Amendment. It proposes to preclude an Article V amendment that 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 Corwin Amendment evidently prohibits an Article V amendment that confers upon Congress the power to abolish or interfere with slavery.

But it does not appear to prohibit an Article V amendment that confers upon another institution the power to do so.

Imagine an Article V amendment that “authorizes or gives to the President” the power to abolish or interfere with slavery. Or one that “authorizes or gives to the people by referendum” the power to abolish or interfere with slavery. Both of these hypothetical Article V amendments would appear to satisfy the conditions of the Corwin Amendment.

This may be a plausible way of reading the Corwin Amendment as freely amendable, admittedly with restrictions on congressional power, though not absolutely unamendable as its conventional reading suggests.

Suggested Citation: Richard Albert, The Unamendable Corwin Amendment, Int’l J. Const. L. Blog, February 27, 2013, available at: http://www.iconnectblog.com/2013/02/the-unamendable-corwin-amendment.