Actually no, it couldn't have. It was to be inserted as an unamendable provision under Article V.
Actually no, it couldn't have. It was to be inserted as an unamendable provision under Article V.
"Only one attempt to amend Article V was among the select group of six proposed amendments that was actually passed by Congress and defeated by the states.[Note 2] It is the so-called Corwin amendment. Without its preamble it read:
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]"
The Paradox of Self-Amendment, Peter Suber http://www.earlham.edu/~peters/writing/psa/app1.htm