Abraham Lincoln, based on photograph by Anthony Berger, February 9, 1864. RU 95: Photographic Collection, Smithsonian Institution Archives; SI neg. no. 83-13977. Note on date: date and name of photographer from Library of Congress Prints and Photographs Division, Washington, D.C. 20540; LC reproduction no. LC-USP6-2415-A DLC.

Ghost Amendment:

The Thirteenth Amendment that Never Was

"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." --Joint Resolution of Congress, Adopted March 2, 1861

When the 36th Congress adjourned on March 3, 1861, it was anyone's guess whether the United States would continue to exist as a single nation. In response to the election of Abraham Lincoln as president, seven Southern states had seceded. Four others would soon join them. As the candidate of the new Republican Party, Lincoln had championed the power of the federal government to exclude slavery from territories that were not yet states, a power that the slave states saw as a dagger aimed at the heart of their "peculiar institution."

President James BuchananAttempting to mollify the slave states, the lame-duck President James Buchanan (picture at right) asked Congress to propose an "explanatory amendment" (his words) to the Constitution which would explicitly recognize slaves as property and the right of slave-owners to keep their human property anywhere on American soil. Although this would do nothing more than restate existing law, as expressed in 1857 in the Supreme Court's explosive Dred Scott decision, a special House committee of 33 members under Representative Thomas Corwin of Ohio (picture below at left) dutifully, if unenthusiastically, set about drafting the proposed amendment, their numbers steadily depleted by the departure of Southern members whose states had seceded.

In a stunning feat of linguistic legerdemain, the Corwin committee delivered to the House floor a draft amendment to protect slavery that never mentioned the words "slave" or "slavery" at all! But then, neither did the original Constitution. Significantly, the proposed amendment did not address the burning issue of moment: the power of Congress to bar slavery from territories that were not yet states.

The amendment passed the House as Joint Resolution No. 80 on February 28 by a vote of 133 to 65, which was two-thirds of the members present. In the subsequent parliamentary wrangle over whether that met the Constitution's requirement of two-thirds of the House, opponents of the amendment lost. On March 2, the Senate acted in favor of the proposed amendment by a vote of 24 to 12, with anti-slavery Senator Benjamin F. Wade of Ohio (picture below at right) attempting to derail it -- or at least to demonstrate his disgust for it -- by asking unanimous consent to vote first on a bill relating to guano deposits. Another opponent of the amendment, Senator Lyman Trumbull of Illinois, lodged an appeal of the decision by Senate President Pro Tem Solomon Foot of Vermont that the vote -- two-thirds of the members present -- met the Consitutional two-thirds requirement; but Trumbull joined 32 other senators in upholding the action, leaving Wade the sole senator opposing it.

Rep. Thomas Corwin
Thomas Corwin
The Corwin amendment was only one of several proposals to re-write the Constitution in the hope of saving the Union. Senator John J. Crittenden of Kentucky proposed a set of amendments that would have restored the old "Missouri Compromise" that was repealed in 1854, then declared unconstitutional in Dred Scott ; and a so-called "peace conference" chaired by former president John Tyler recommended to Congress more or less the same thing. These complicated proposals came to nothing. Many members of Congress were willing to vote for the simpler Corwin amendment not because they necessarily believed in it or even thought that it would work, but because they wanted to be seen making an eleventh-hour gesture for peace.
 Senator Benjamin Wade
Benjamin Wade
Not too steady in his grasp of constitutional law, President Buchanan signed the joint resolution the day the Senate approved it: an unnecessary step, given the fact that Congressional power to propose amendments to the Constitution is not subject to presidential approval or veto. Two days later, Abraham Lincoln was inaugurated as the sixteenth president of the United States and the proposed amendment was largely forgotten, although two states, Ohio and Maryland, actually ratified it! An Illinois state constitutional convention that met in 1862 purported to ratify the amendment, but had no legal authority to do so. Interestingly, Lincoln alluded to the Corwin amendment in his First Inaugural Address (paragraph 29). Although he stopped short of endorsing it, he said, "holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable." Those were clearly not the words of a wild-eyed abolitionist (as Lincoln's detractors portrayed him), but of a practical politician trying to manage an unprecedented crisis.

Interestingly, the Confederate constitution, adopted a few days later by the seceding states, contained nothing like the Corwin amendment. While the Confederate document explicitly recognized slaves as property, it did not purport to bar future amendments to restrict or abolish slavery. In any event, the Confederate congress was given no power to propose amendments; that power rested exclusively with a convention of the states.

Full Text of H.J.R. No. 80, the "Ghost Amendment":

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three-fourths of said Legislatures, shall be valid, to all intents and purposes, as part of the said Constitution, namely:

ART. 13. 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.

--12 United States Statutes at Large, 36th Congress, 2nd Session, 1861, p. 251.

Overseer Artayou Carrier whipped me. I was two months in bed sore from the whipping. My master come after I was whipped;he discharged the overseer. The very words of poor Peter, taken as he sat for his picture. Baton Rouge, La.,April 2, 1863. Credit: National Archives and Records Administration
Slave Abuse: 1863

First reading of the emancipation proclamation. Lincon and his cabinet, by Francis B. Carpenter.
Lincoln reads the Emancipation Proclamation
The opening shots of the Civil War sent the Corwin amendment into history's dustbin. But that did not mean that the free states that now dominated Congress were ready to abolish slavery. Lincoln's Emancipation Proclamation was a war measure aimed only at freeing slaves in Southern territory that came under Union military control after January 1, 1863. The real Thirteenth Amendment abolishing slavery passed the Senate easily in April 1864, but was defeated 95 to 66 the first time it went before the House of Representatives in June. It took the House six more months before it reconsidered the amendment and adopted it 119 to 56 on January 31, 1865.
As if to negate President Buchanan's unnecessary signing of the pro-slavery Corwin amendment almost four years earlier, President Lincoln put his signature on the anti-slavery Thirteenth Amendment on February 1, 1865. He was murdered two months later. On December 6, the real Thirteenth Amendment received enough ratifications to become law.

The Real Thirteenth Amendment:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

--adopted by Congress, Jan. 31. 1865; ratified Dec. 6, 1865

Slave sale in Easton, Md.
A slave sale in Easton, Md.

Rescind the "Ghost Amendment"

The Corwin amendment is dead but, like a ghost, not quite as dead as it should be. Neither the amendment itself nor the enabling resolution, H.J.R. No. 80, placed a limit on the time during which it would be open to ratification. So in a technical sense, it is still open for ratification, just like the 27th Amendment on Congressional pay, which took nearly 202 years to become part of the Constitution. In fact, there was even a bizarre attempt by a few legislators in Texas to ratify the Corwin amendment in 1963!

We should eliminate the technicality. As a gesture toward healing the wounds of slavery and racism, Congress should rescind House Joint Resolution No. 80 of 1861. To any who might ridicule this as "meaningless symbolism," my response is that it would be meaningful symbolism. Nothing can undo the horror and injustice of slavery, but there is value in acknowledging our history. The Corwin amendment is a ghost that haunts our Constitutional edifice. Let's exorcise that ghost.

On May 19, 2005, the Massachusetts legislature voted to repeal a 1675 law that prohibited Native Americans from entering the city of Boston. On June 13, 2005, the U.S. Senate adopted a resolution apologizing for its past unwillingness to outlaw lynching. On February 24, 2007, the Virginia General Assembly, meeting on the grounds of the old Confederate Capitol in Richmond, formally apologized for the Old Dominion's role in slavery. The time is right for Congress to rescind the Ghost Amendment.

Want to help? Email your senators and representative in Congress. Tell them about this web site. Ask them to rescind the Ghost Amendment. To find out who they are and how to contact them,click here. You may also send an email through Congress.Org. For a letter that you can copy and paste, click here.

References and Resources

President James Buchanan's Fourth State of the Union Message

History of the Corwin Amendment

An Unamendable Amendment

The Crittenden Compromise

Passage of the [Real] Thirteenth Amendment

Note on the Viability of Unratified Amendments

Draft Emancipation Proclamation, July 22,1862, Library of Congress
Draft Emancipation Proclamation
July 22, 1862
Bruce Catton, The Coming Fury, Doubleday & Co., Inc. (1961), p. 128; pp. 197-198.

Russell F. Weigley, A Great Civil War: a Military and Political History, 1861-1865, Indiana University Press (2000), pp. 402-405.

See also the Congressional Globe, recording the debates of the closing days of the 36th Congress, 2nd session. The link is to facsimile pages on the "American Memory" web site of the Library of Congress.

All images used on this page are to the best of my knowledge in the public domain. The photo of Abraham Lincoln is from the Smithsonian archives. The image of the Draft Emancipation Proclamation is from the Abraham Lincoln Papers at the Library of Congress. The photo of Thomas Corwin is from the Collection of the U.S. House of Representatives. The photo of Benjamin Wade is from the U.S. Senate Historical Office. All other images are from the Images of American Political History collection maintained by the Department of Political Science of The College of New Jersey.

About this site's creator:
Michael Walter holds degrees in political science and law from Indiana University at Bloomington and in international relations from The Johns Hopkins University School of Advanced International Studies in Washington, DC. He lives in Auburn, IN.

Contact Michael Walter

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