What if the 13th Amendment, which turns 150 on Dec. 6, had made slavery a permanent part of the Constitution instead of abolishing it? What if President Abraham Lincoln had supported such an amendment? Say it ain't so, Abe--but it is.
These are not merely hypothetical questions. They inform the relatively recent and contingent nature of abolition under the Constitution--as police killings roil Chicago and colleges erupt with racial tensions. Just as Lincoln's constitutional history is more complicated than being "the Great Liberator," our national myth that the "badges and incidents of slavery" (to quote the Supreme Court) ended 150 years ago also bears examination.
The end of the Civil War came not just on the battlefield, but on parchment. The 13th Amendment to the Constitution established abolition of slavery as the war's noblest outcome. The amendment also created the sine qua non of Reconstruction: a rebellious state could not be readmitted to the Union unless it ended slavery. President Lincoln's final, and finest, achievement was to secure abolition in the Constitution, where no mere legislative majority could easily take it away.
So why did Lincoln agree to make slavery a permanent, unamendable part of the Constitution only four years earlier, in his first inaugural address? After the 1860 presidential election, Congress created an olive branch to staunch the tide of southern secession. Known as the Corwin Amendment, after its sponsor Rep. Thomas Corwin of Ohio, this proposed Thirteenth Amendment 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.
The final language was approved by both houses of Congress on March 2, only two days before Lincoln was sworn in. By that time, seven southern states had already seceded. Yet Lincoln included his support of the amendment in his address: "holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable."
With that phrase Lincoln removed all doubt that he would make slavery an explicit and permanent part of the Constitution if it saved the Union. And by supporting such an amendment, he could lay the burden of war clearly on the South. "In your hands, my dissatisfied fellow-countrymen, and not in mine, is the momentous issue of civil war."
On March 16, 1861, Lincoln sent a signed letter transmitting the proposed amendment to the governors of all the states, including those that had recently seceded. The amendment itself had been signed by President James Buchanan, just as Lincoln in 1865 would sign what officially became the Thirteenth Amendment. Although Lincoln hoped the amendment would appease the border states, only Maryland and Ohio legally approved it; both later rescinded their ratifications. The Corwin Amendment proved that Southern secessionists were after much more than states' rights, or even the protection of slavery within their borders. They wanted a separate nation dedicated to preserving their own interests.
The irony is that if Confederates had not fired upon Fort Sumter, slavery might have been preserved under the Constitution as unamendable. Only two other features of the Constitution have that privilege, listed in Article V: ending the slave trade before 1808 (now moot) and denying a state equal representation in the Senate. Although Prohibition was subsequently repealed, the 18th Amendment did not expressly forbid such action.
That's not to say how long slavery would have legally persisted if the Corwin Amendment had been ratified. What we do know is that even with a 13th Amendment that abolished slavery, a brutal system of race-based discrimination persisted for more than a century, and in many ways still continues today. To examine that history should be the calling of every American, and not derided among those whose job it is to learn. Lincoln called us to listen to "the better angels of our nature," but that does not mean ignoring the past.