"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."

Attempting to mollify the slave states, the lame-duck President James Buchanan 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 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.

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.

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.