WI: Corwin Amendment

[wolf_brother]

Sorry if this has been done before; I tried using the search feature and while some threads had the amendment mentioned none of them discussed it specifically.

So WI the Corwin amendment passed? IOTL it made its way through both chambers of the Congress, and outgoing President Buchanan endorsed it by taking the unusual step of signing it. President Lincoln, in his first inaugural address, supported the Corwin Amendment: 'Holding such a provision to now be implied Constitutional law, I have no objection to its being made express and irrevocable.' Just weeks prior to the outbreak of the Civil War, Lincoln sent a letter to each governor transmitting the proposed amendment.

Let's assume for all intentions and purposes that the American Civil War is either avoided, shorter/less bloody, or the amendment is retained regardless after the war. What affect does this have on the development of the US further down the line, especially in terms of early industrialization

EDIT: For those of you playing at home the text of the Corwin Amendment reads;

"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."

 

[Mirza Khan]

Well, the entire purpose of the Corwin Amendment was to prevent Congress from passing a Constitutional Amendment banning slavery, so after the civil war started the whole thing became kind of moot...

In a Civil-War avoided TL I can see it, but remember that the Civil War itself wasn't started by slavery per se, but more the question of whether unorganized Federal territories could become slave states, and to what proportion (Southeners were afraid that all the northern Prarie would ultimately become Free States and thus the Free States would greatly outnumber the Slave States-which probably would have happened).

And in any case I highly doubt it would be a permanent fix-given the growing strength of the abolitionist movement, the growing international condemnation of slavery, and the growing number of free states, I suspect eventually that the Corwin Amendment would be repealed or some abolitionist lawyers would come up with a way to ban slavery regardless-probably precipitating the (delayed) Civil War.

 

[Swan Station]

"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."

That's a fairly permanent sounding clause. Every other part of the constitution and it's amendments can be changed or removed by further amendments. But this one says that it can't be repealed, except perhaps by another amendment which guarantees the exact same rights but words them differently.

 

[mrmandias]

That's a fairly permanent sounding clause. Every other part of the constitution and it's amendments can be changed or removed by further amendments. But this one says that it can't be repealed, except perhaps by another amendment which guarantees the exact same rights but words them differently.

Yes, its so permanent that it will just be ignored. A better amendment would be on that said it couldn't be amended without a concurrent majority--that would give abolitionists something to work for short of revolution of extraconstitutional action.

 

[Twin City Lines]

I'm surprised the "defence of marriage" freaks haven't come up with a "Corwin-style" amendment to prevent Congress from ever granting federal recognition to gay marriage....

 

[Swan Station]

Yes, its so permanent that it will just be ignored. A better amendment would be on that said it couldn't be amended without a concurrent majority--that would give abolitionists something to work for short of revolution of extraconstitutional action.

Yeah, but it's still fun to imagine if something like that was found in, oh, say, the 18th amendment.

 

[Craigo]

That's a fairly permanent sounding clause. Every other part of the constitution and it's amendments can be changed or removed by further amendments. But this one says that it can't be repealed, except perhaps by another amendment which guarantees the exact same rights but words them differently.

Equal representation in the Senate is unamendable according to Article V. That's the only other example of which I'm aware.

The whole idea of "unamendable" provisions seems fairly dodgy to me. I have a feeling that if an amendment survived the long, arduous process, the Supreme Court would find way some way not to read it out of the Constitution.

 

[Custard Cream Monster]

That's a fairly permanent sounding clause. Every other part of the constitution and it's amendments can be changed or removed by further amendments. But this one says that it can't be repealed, except perhaps by another amendment which guarantees the exact same rights but words them differently.

This sounds silly, but what about an amendment to repeal that amendment, and then another amendment to prohibit slavery? The constitution doesn't authorize unamendable amendments.

E.G. 13th Amendment - "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."
14th Amendment - "The Thirteenth Amendment to the Constitution is hereby repealed."
15th Amendment - Basically the same as the real life 13th.

 

[wolf_brother]

Perhaps I was reading too much into the amendment and too far ahead, but my initial thoughts were in a Civil War-delayed or -avoided TL that the amendment would prevent the right of worker's right legislation. The amendment as constitutional law would outlaw any federal regulations on industry, as the text specifically lists labor as one of the state's 'domestic institutions,' and it's very existence would go a long way towards setting the precedent against even state laws being passed to regulate industry in favor of the worker's movement. The US' labor laws might never get passed, or if they did exist ITTL they'd be heavily watered down compared to OTL. Contract of employment, minimum wage, eight-hour day, occupational safety laws, anti-discrimination laws, wrongful dismissal laws, child labor laws, even trade unions might be butterflied away ITTL.

Thoughts?

 

[Craigo]

This sounds silly, but what about an amendment to repeal that amendment, and then another amendment to prohibit slavery? The constitution doesn't authorize unamendable amendments.

E.G. 13th Amendment - "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."
14th Amendment - "The Thirteenth Amendment to the Constitution is hereby repealed."
15th Amendment - Basically the same as the real life 13th.

The question is an interesting one, if entirely academic. As far as I'm aware, no serious analysis has been done on the issue.

The Supreme Court, when there is no American law on the subject, will turn to foreign law for guidance. There are some national constitutions with clearly unamendable provisions, but none in common law countries.

 

[Custard Cream Monster]

The other "One so you can, one to do it" example could be adjusting Senate apportionment.

 

[Craigo]

Perhaps I was reading too much into the amendment and too far ahead, but my initial thoughts were in a Civil War-delayed or -avoided TL that the amendment would prevent the right of worker's right legislation. The amendment as constitutional law would outlaw any federal regulations on industry, as the text specifically lists labor as one of the state's 'domestic institutions,' and it's very existence would go a long way towards setting the precedent against even state laws being passed to regulate industry in favor of the worker's movement. The US' labor laws might never get passed, or if they did exist ITTL they'd be heavily watered down compared to OTL. Contract of employment, minimum wage, eight-hour day, occupational safety laws, anti-discrimination laws, wrongful dismissal laws, child labor laws, even trade unions might be butterflied away ITTL.

Thoughts?

"Held to labor" is a very different term than free labor - it means someone who is enslaved or indentured. The legislative history of the amendment would make it clear that it was meant to distinguish people "held" to labor from those who were free to dispose of their labor as they wished.

 

[wolf_brother]

"Held to labor" is a very different term than free labor - it means someone who is enslaved or indentured. The legislative history of the amendment would make it clear that it was meant to distinguish people "held" to labor from those who were free to dispose of their labor as they wished.

Contracted labor, however, could be conceived of as 'held' to labor. At-will employment wasn't even conceived of until the late 1870s, and the first case on the matter wasn't heard until 1959.

 

[Mirza Khan]

I'm surprised the "defence of marriage" freaks haven't come up with a "Corwin-style" amendment to prevent Congress from ever granting federal recognition to gay marriage....

Actually, during the Bush administration, congress actually voted on a "Federal Marriage Amendment" that would, IRRC, have expressly stated that the only legal marriages in the United States are opposite-sex ones. I can't remember if it got a majority or not, but it certainly didn't get the 2/3 it would have needed to get out of congress. (And ratification probably would have proved to be...difficult-there's a reason we haven't had any new Constitutional Amendments since the 1970's)

 

[mrmandias]

I'm doubtful that the amendment *should* prohibit labor legislation, though the courts that used the substantive due process clause to that effect would certainly use this amendment too, if there were federal labor legislation

As to what the amendment would actually mean besides slavery? I think the answer is family law. That is one of the few other areas of anglo-american law that are based on status, not contract.

*the OTL labor legislation that got struck down was mostly state legislation, which this amendment would arguably protect.

 

[CalBear]

I'm surprised the "defence of marriage" freaks haven't come up with a "Corwin-style" amendment to prevent Congress from ever granting federal recognition to gay marriage....

Huh?

Don't drag Chat subjects into Pre-1900.

 

[Swan Station]

there's a reason we haven't had any new Constitutional Amendments since the 1970's

Well, except for the 27th amendment. Although that one took about 200 years to get ratified.

 

[Craigo]

Contracted labor, however, could be conceived of as 'held' to labor. At-will employment wasn't even conceived of until the late 1870s, and the first case on the matter wasn't heard until 1959.

The legal concept of a presumption of at will employment wasn't codified in US law until 1877. The practice of free labor existed for a couple millennia longer than that. The rule itself was based on judicial proceedings going back to colonial times, and recognized in law what was already standard practice. Any in any case, you have the development backwards - the rule was formulated to prevent terminated employees from arguing that their term was not indefinite, not to allow workers to free themselves from labor contracts that were largely nonexistent.

But that's all irrelevant, because the legislative history of the Corwin Amendment does not support this interpretation. As explained, "held to labor" had a well known meaning in the 19th century, and that was slavery or indentured servitude. It appears in Article IV, the fugitive slave clause - which was never held to apply to anyone other than a slave or an indentured servant. The debates recorded by the Congressional Globe are focused entirely on slavery, as are court cases on the clause, the Act of 1793, the Act of 1850, and state personal liberty laws.

It's a term of art, and what a layman may think of it has no bearing on its technical meaning. "Ex post facto" literally means "after the fact," but every lawyer understands that not all retrospective laws are ex post facto laws.

 

[wolf_brother]

The legal concept of a presumption of at will employment wasn't codified in US law until 1877. The practice of free labor existed for a couple millennia longer than that. The rule itself was based on judicial proceedings going back to colonial times, and recognized in law what was already standard practice. Any in any case, you have the development backwards - the rule was formulated to prevent terminated employees from arguing that their term was not indefinite, not to allow workers to free themselves from labor contracts that were largely nonexistent.

But that's all irrelevant, because the legislative history of the Corwin Amendment does not support this interpretation. As explained, "held to labor" had a well known meaning in the 19th century, and that was slavery or indentured servitude. It appears in Article IV, the fugitive slave clause - which was never held to apply to anyone other than a slave or an indentured servant. The debates recorded by the Congressional Globe are focused entirely on slavery, as are court cases on the clause, the Act of 1793, the Act of 1850, and state personal liberty laws.

It's a term of art, and what a layman may think of it has no bearing on its technical meaning. "Ex post facto" literally means "after the fact," but every lawyer understands that not all retrospective laws are ex post facto laws.

I'm not sure how you square the idea of 'free labor' extending for thousands of years when slavery and serfdom where the primary economic foundations of nearly every society and great power until the Enlightenment era

Regarding legislative history, without moving this topic into Chat, I think we can all agree that legislative history has little to do with how constitutional amendments are interpreted. The Second Amendment, for example, clearly meant for the right to bear arms to be exercised within the context of militias. The Fourth has been consistently rolled back in its extent, while the Tenth is, arguably, routinely ignored. To say that 'legislative history' would prevent the application of the Corwin Amendment to other state institutions asides from slavery is something of folly, IMHO. Further up the thread mrmandias raised the issue of family law, a position I hadn't even thought of (and I'd be interested in hearing more from him on the topic), so its fairly clear the Amendment could be applied to other state institutions.

 

[Evan]

I'm afraid all this discussion of "held to labor" is totally irrelevant. The amendment would prohibit Congress from interfering with any of "the domestic institutions" of a state - not limited to people held to labor. Right?