Paradox of Self-Amendment by Peter Suber 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. Congress adopted this proposal on March 2, 1861. It is substantively, although somewhat covertly, concerned with slavery. It proposes to protect slave states from congressional interference. But it can rightly be considered an amendment to Article V because, if ratified, it would significantly and expressly have curtailed the federal amending power. Moreover, as originally adopted, Article V included an express limitation that prevented the abolition of slavery by amendment until 1808. The Corwin amendment would have renewed the limitation in perpetuity. The Corwin amendment is ambiguous on the question whether it precludes an amendment directly abolishing slavery, or merely precludes amendments that authorize Congress to abolish slavery. The former would constitute the entrenchment, but not the self-entrenchment, of slavery; even under its stringent interpretation, the Corwin amendment did not (explicitly) bar its own repeal. Orfield counts 14 proposed amendments that would somehow have precluded the abolition of slavery. Only the Corwin amendment passed Congress.[Note 3] Four years and one Civil War after passing the Corwin amendment, Congress passed the Thirteenth Amendment, abolishing slavery, which was ratified by the states. Needless to say, the ratification of the Thirteenth Amendment preempted the movement to ratify the Corwin amendment. However, the Corwin amendment had only been validly ratified by two states (Ohio, Maryland). Illinois attempted to ratify it, but probably did so defectively by voting to ratify it in a state constitutional convention that happened to be in session in 1861.[Note 4] Incidentally, the Corwin amendment and the Thirteenth Amendment were the only proposed amendments ever signed by the President. James Buchanan signed the Corwin amendment two days before leaving office for Abraham Lincoln, in a desperate eleventh-hour effort to avert the Civil War. Lincoln signed the Thirteenth Amendment abolishing slavery, but thinking he erred he notified Congress. The Senate declared the signature unnecessary and not to be a precedent. When the Twelfth Amendment was still in Congress, a Senate resolution to submit it to the President (Jefferson) was defeated. Before and after the Corwin amendment Congress realized that the President need not sign, and cannot veto, a constitutional amendment.[Note 5] C. Historical proposals not passed by Congress Proposals to amend Article V prior to the 20th century have been collected by Herbert Vandenberg Ames and discussed in admirable detail in Chapter VI of his The Proposed Amendments to the Constitution of the United States During the First Century of its History.[Note 6] I list the proposals here in chronological order, not the order in which Ames discusses them. Rhode Island proposed an amendment to Article V at the time it ratified the constitution, May 29, 1790. It proposed that after 1793, no amendment be valid without the consent of at least 11 of the original 13 states. The other states resisted the strong appeal to their self- interest and defeated this proposal, leaving them without any legal privilege over subsequently admitted states. Although not strictly an amendment to Article V, in 1822 an attempt was made to call a convention to propose amendments to the body of the constitution generally but in a way violating Article V. Alabama, Georgia, New York, South Carolina, and Virginia attempted to call a convention of states; Delaware succeeded in averting the convention by arguing that Article V authorizes only a convention of the people, not a convention of states. But for Delaware's action, Article V may have been amended by violation, sub silentio, replaced by a self- declared successor. In 1826 Representative Herrick of Maine proposed that future proposals to amend the constitution be heard only every tenth year. In January of 1861, Senator Crittenden of Kentucky proposed to entrench absolutely the slavery laws of the several states, together with his own amendment. He would allow slavery below, and forbid it above, 36o 30', and would forever bar blacks from voting or holding public office. The self-entrenchment of the amendment would have been the first for a constitutional amendment. Crittenden also made it part of his proposal that it be ratified by popular referendum, which would have violated Article V even if approved unanimously (see ##7, 10, below). In January of 1864, Senator Henderson of Missouri proposed that the supermajority of state concurrences needed to ratify an amendment be reduced from three-fourths to two-thirds. Shortly after the Civil War, Virginia called and sponsored a "Peace Convention" attended by representatives from 21 states. The convention was not called under the procedures of Article V, yet it drafted amendments that it recommended to Congress; it did not purport to ratify the amendments. One proposal by a Mr. Florence, representative from Pennsylvania, is particularly germane to our topic: The reserved power of the people in three-fourths of the states to call and form a national convention to alter, amend, or abolish this Constitution, according to its provisions, shall never be questioned, notwithstanding the direction in Article V of the Constitution. The amendment would in effect have made solid constitutional law out of the glorious but legally uncertain language of the Declaration of Independence (see Section 18). However, Mr. Florence did not appreciate that making the right to "alter, amend, or abolish" into an 173