The First 13th Amendment, 1861
Lincoln was almost the “Great Enslaver”
With one decision, Honest Abe, the Railsplitter, and Great Emancipator could have become one of the least liked presidents in American history.
When it comes to US historical rankings of the Presidents, Lincoln sits as supreme over the other 43 presidents as he does in the Lincoln Memorial. But had the Southern states been more politically astute in the spring of 1861, Lincoln may be seen as the most criminal of our presidents. Reducing him from icon to the bottom of the list, maybe even below Buchanan.
On April 12, 1861, the South had one of two choices. Lincoln was about to resupply a fort off the coast of South Carolina called Fort Sumter. He had been President for just over a month, so he easily could have held off on this decision, as well. However, once General P.G.T. Beauregard of the newly created Confederate Army heard of this and negotiations broke down, he attacked the fort starting the Civil War and making the wrong choice for the South and ultimately the right choice for abolition.
If the South had waited a few months, slavery would have become enshrined in the Constitution, forever.
Two things were going on before April 12 that could have changed American history.
First, states had been leaving the Union. By April 12, seven of the 11 states of the Confederacy had seceded. In fact, Virginia only did so because of the attack on Ft. Sumter.
Second, and more importantly, Congress had sent to the states a 13th Amendment.
It was called the Corwin Amendment and it would have legalized slavery in the United States forever, rather than the current 13th Amendment that prohibits it. The Corwin Amendment reads:
“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.”
Note, it does three things: 1) protects slavery; 2) allows states to decide slavery; 3) prevents Congress from making future amendments about slavery.
By April 4, Kentucky had ratified it, less than a month after Congress did. Lincoln, who at this time was more interested in keeping the Union together than abolishing slavery said this at his Inauguration, literally hours after Congress ratified it:
“I understand a proposed amendment to the Constitution — which amendment, however, I have not seen — has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service … holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.”
Simply put, all the South had to do was ratify the Corwin Amendment themselves and wait for the Northern states to do the same. In fact, five northern states did ratify the Amendment, and Corwin himself was from Ohio.
Had Lincoln and the South pursued amending the Constitution rather than war, the Civil War would have been avoided, and slavery would have lived on. Yes, seven states had already seceded, but Lincoln probably would have allowed them back into the Union by accepting the Corwin Amendment. After all, the same Southern states had to approve the current 13th Amendment to rejoin the Union AFTER the Civil War.
At this point, the alternative history of the United States might play out like a 19th-century version of The Handmaid’s Tale.
Lincoln personally opposed slavery but felt that the Constitution supported it and it wasn’t the President’s role to change matters. His actions on the Corwin Amendment support that. Once the Civil War did start, however, his views toward abolition changed.
Had the Corwin Amendment become the 13th Amendment, Lincoln would probably be seen today as similar to Taylor, Fillmore, Pierce, and Buchanan. He could have lost the 1864 election as was the trend back then, opening the door to a strong southern candidate who would have worked to cement the legacy of slavery.
Most of this is just interesting fuel for the fire of history fans. A bunch of “What if’s?”
However, there is one scary part to this story. In 1939, the Supreme Court ruled that future amendments needed an expiration date. This was in the news last year when Virginia became the 38th, and needed state, to ratify the Equal Rights Amendment. But, Corwin was 1861. This means, technically, the Amendment could still pass and cause all sorts of social, political, and constitutional carnage.
In October 2020, I would bet that intergalactic aliens would win America's Got Talent before Corwin was ratified.
Today, I’m not so sure.
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