Better to Avoid Mistakes Than Make Amends

SAN FRANCISCO —  With the country anxious about war and the economy, a Republican president, elected with less than half the popular vote, publicly expresses support for an amendment to the U.S. Constitution that aims to entrench a conservative social policy preference that seems to have national support.

No, I’m not talking about President Bush’s public endorsement of a constitutional amendment on same-sex marriage. Rather, I’m speaking of Abraham Lincoln’s mild embrace of the Corwin amendment, a proposal to guarantee that slavery would be immune from congressional abolition -- even if a later constitutional amendment attempted to reverse it.

By late February 1861, before Lincoln’s inauguration, seven Southern states had seceded and several others were threatening to follow them. In a desperate effort to preserve the union, outgoing President James Buchanan had asked Congress to propose a constitutional amendment that would reassure the slave states that federal law would not -- and could not -- interfere with chattel slavery where it existed or the ability of slave owners to take their slaves elsewhere in the United States. A somewhat reluctant Congress, reduced in numbers by the Southern defections, began drafting an amendment that bore the name of Rep. Thomas Corwin of Ohio, who headed the House committee charged with devising a compromise on slavery. On Feb. 28, 133 House members approved the amendment, just one more than the necessary two-thirds. After much procedural wrangling, the measure cleared the Senate on March 3 by an even tighter margin of 24 to 12.

The next day, in his first inaugural address, President Lincoln referred to the proposed amendment pending before the states. Although he refrained from making any formal “recommendation of amendments,” he nonetheless observed, “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. [Since this idea is already] implied [in] constitutional law, I have no objection to it being made express and irrevocable.” In other words, because the amendment served largely to concretize existing law, Lincoln saw no reason not to accept it, especially if it would soothe ruffled Southern feathers.

Only two states -- Ohio and Maryland -- ever ratified the Corwin amendment. Ironically, had it been approved by the required three-quarters of the states, the Corwin proposal would have become the 13th Amendment, instead of the current one that outlaws slavery.

What are the relevant lessons of 1861 for today’s proposed same-sex marriage amendment? First, presidents aren’t supposed to be central in the amendment process. Article V of the Constitution involves both houses of Congress and the states in proposing and ratifying amendments; the president and the federal courts are conspicuously unmentioned. Buchanan missed this point when he (needlessly) signed the Corwin amendment resolution the day after it cleared the Senate. And presidents Lincoln and Bush may have implicitly overstated their roles in the process laid out in Article V. For it is up to each house of Congress to deliberate and debate any same-sex marriage amendment. Then the battle is to be carried to the states, should an amendment garner the necessary two-thirds support.

Second, the Corwin experience reminds us that when the amendment battle is joined in Congress, text is key. The devil of any amendment lies in its details. Lincoln was remiss in speaking approvingly of an amendment without having read it. And the text of the Corwin amendment (putting aside its odious general intent) was troublesome in a couple of ways. It didn’t deal with the federal government’s power to regulate slavery in the federal territories -- only in the states -- and thus would not have resolved North-South tensions over the expansion of slavery. Because precise wording matters, Bush should be clear about precisely what textual amendment he would endorse. If he primarily worries that full-faith-and-credit principles (the idea that each state has to respect the judicial decrees of any other) would require all states to recognize same-sex marriages that are valid in one state, the wording of some proposed amendments -- banning each state from recognizing any same-sex marriage -- goes well beyond and does not properly address the perceived problem.

The Corwin amendment’s text was also disturbing in that it purported to head off future amendments dealing with federal power and slavery by making the resolution permanent. In a country built upon popular sovereignty -- the notion that a majority of “we the people” have an inalienable right to alter and abolish our form of government -- unamendable amendments are, to say the least, quite tricky.

That brings me to the third lesson -- all amendments entrench policy. Enacted at moments of high politics, amendments embed principles into our supreme law that are intended to endure and thus are difficult to undo. That is their virtue. But that is also why we must be careful in using them. In effect, we must ask: How will the principle we are enshrining in today’s proposed amendment look one, two or 10 generations from now? How likely is it to stand the test of time?

It is easy to see today that the Corwin amendment wouldn’t have worn well, but could its framers and supporters have known that in 1861? There was reason to suspect that the amendment could have become outdated in a hurry because the country was in the midst of an ideological struggle to find a consensus on slavery. An amendment that cuts off debate precisely at the time when people’s views are evolving and becoming firmer stands a high chance of looking anachronistic and embarrassing, just as the 18th Amendment’s prohibition of alcohol feels so dated and out of touch today.

Some may point out that we were able to “fix” the mistake of the 18th Amendment by enacting the 21st. Yet the latter was easily ratified because Congress committed ratification not to state legislatures, which had ratified the 18th, but to special ratification conventions in each state. The 18th Amendment’s adoption by malapportioned state legislatures, perhaps unrepresentative of public views, may have made it particularly easy to undo. Thus, the Prohibition experience doesn’t diminish the idea that avoiding constitutional mistakes in the first place is the wiser course.