Balkinization  

Wednesday, February 25, 2004

JB

The FMA: Not The First Proposed Amendment to Exclude

Many opponents of the proposed Federal Marriage Amendment claim it is the first time that the Constitution would be amended to exclude a group of people. Well, that's technically correct: If *ratified*, the FMA would be the first amendment actually *adopted* that would do that. But it would not be the first such amendment proposed, and more importantly, it would not even be the first such amendment that passed Congress by a two thirds vote of both houses and was submitted to the states. That honor would go to the proposed Thirteenth Amendment of 1861.

Instead of arguing that what Bush has done is unprecedented, I think it's much more important to remember that this *has* happened before, and that the previous attempt is now universally condemned.

The proposed Thirteenth Amendment passed the House on February 28, 1861, and the Senate on March 2nd, 1861. The proposed amendment, sometimes called the Corwin Amendment, because it was proposed by Representative Thomas Corwin of Ohio, was a desperate measure designed to keep the Union from falling apart. By the time the amendment was submitted to the states, seven states had already seceded and four were soon to follow. The ensuing Civil War made it irrelevant, but it was ratified by several states and because it has no time limit for ratification, it is still technically before the country:

ARTICLE THIRTEEN


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.


As you can see, the point of the Corwin Amendment was to assure Southern states that the Constitution would never be amended to abolish slavery. (Ironically, it says nothing about the issue of slavery in the territories, which was one of the precipitating causes of secession). There is an interesting question whether amendments that prohibit future amendments can work. After all, one can simply amend them to remove the prohibition. The irony, of course, is that the Thirteenth Amendment that was ratified four years later in December 1865 did abolish slavery.

President James Buchanan, who had promoted the idea of an "explanatory" constitutional amendment to resolve the crisis over secession, signed the Corwin Amendment after the Senate passed it. This was technically unnecessary, because Article V of the Constitution does not require the President's consent to amend the Constitution. However, when what is now the Thirteenth Amendment was passed by Congress in February 1865, President Lincoln signed it in a symbolic attempt to negate Buchanan's action.

It is tempting to draw parallels between James Buchanan, who promoted the Corwin Amendment that would forever exclude blacks from full citizenship, and President Bush, who is now promoting an amendment that would exclude gays from full citizenship. Buchanan after all, was one of our worst presidents. But it's important to remember that in 1861, many people from both parties supported the Corwin amendment while holding their noses, including Abraham Lincoln himself, who makes passing reference to it in his First Inaugural Address:

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. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.

Incidentally, the Corwin Amendment was not the only attempt to broker a deal: An earlier proposal in 1860, the so called "Crittenden Compromise," named after Senator Crittenden of Kentucky, would have reinstated features of the Missouri Compromise held unconstitutional in Dred Scott v. Sanford, and would also have prevented Congress from abolishing slavery in the District of Columbia and from regulating interstate transportation of slaves. This compromise failed to pass the House and the Senate.

President Bush should be justly criticized for attempting to amend the Constitution to deny one group of people full and equal rights. But he is not the first President to do so, and we should draw a lesson from the previous example of the unratified Thirteenth Amendment. What he is doing is not unprecedented, and we should resolve not to let it happen again in our own time.



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