Ghost Theory

Extreme cases by their definition are not representative of a system. Nevertheless, those cases, however extreme, can shed light on that system, if that system purports to encompass those cases.[i] Much debate concerning constitutional law concerns the weight that text[ii] and history should play in constitutional interpretation and construction[iii]. However, maybe a constitutional crisis (or at least a hypothetical one),[iv]though not representative of the regular operation of this constitutional system, can shed light on it and this debate thereon. What is this constitutional crisis? Events that occurred during the Civil War are commonly argued to be constitutional crises, for good reason.[v] The constitutional crisis that is the topic of this article does occur during or right before the Civil War, but it is not an event as popularly discussed as others. Indeed, you could say that this event is a “ghost” – the ghost of the Constitution. It is the Corwin Amendment, or, as it is otherwise known, the “Ghost 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.”[vi] These are the words of that infamous amendment, but it would be prudent to examine the Congressional and Presidential history behind this amendment to understand truly its import.

Long before the Civil War, there was great controversy as to whether new States and territories should have slavery permitted within their borders.[vii] The Election of 1860 turned on this issue, and the Republican Party Platform interpreted and construed the Constitution as granting Congress power to make that decision in the territories at least and asserted that Congress should use that power to prohibit slavery there.[viii] Several Southern States already threatened to secede from the Union if President Abraham Lincoln, a Republican, were to be elected.[ix] That is exactly what happened upon the President’s election, even before his Inaugural Address.[x]

Between the President’s election and his Inaugural Address, the lame-duck Congress scrambled to preserve the Union.[xi] Before the Corwin Amendment, there were the Crittenden Proposals. Senator John J. Crittenden proposed six amendments: the first five essentially protected slavery, and the sixth amendment, inter alia, entrenched the first five.[xii] Between the Crittenden Proposals and the Corwin Amendment, there was much political intrigue, as one would expect from a Congress on the eve of a cataclysmic war. For example, much of the work for the Crittenden Proposals occurred in the Senate, which appointed a Committee of Thirteen.[xiii] Ironically, then-Senator Jefferson Davis (who would become President of the Confederate States of America) proposed a rule that required “a dual majority of both the five Republicans and the other eight members” before acting that effectively crippled the Crittenden Proposals.[xiv] By contrast, the Corwin Amendment had much better luck in the House and passed in the Senate.[xv] It was even ratified in two to three States and, as might surprise some people, received President Lincoln’s at least timid support.[xvi] The Ghost Amendment may be academic now, but it was not really back then.

As one may expect, the legal import of this discussion would come from imagining, “What if three-fourths of the Legislatures of the States had actually passed the Corwin Amendment?”[xvii] Where would that lead? As scholars have noted, it would not lead anywhere deep, because both the Crittenden Proposals and the Corwin Amendment were sloppily drafted and suffer from the same fundamental flaw. The sixth amendment of the Crittenden Proposals sought to entrench the first five amendments against future generations, but the sixth amendment did not entrench itself.[xviii] Thus, future generations could simply ratify an amendment nullifying that sixth amendment, taking away the first five amendments’ shield.[xix] It would be even easier with the Corwin Amendment, which never declared itself unamendable.[xx]

This analysis seems entirely correct, but there is a way to go deeper as well. Simply change the hypothetical to suppose that the drafters did work through the Corwin Amendment’s logic and make it bulletproof against future amendments. Can one generation bind all future generations over substantive issues like slavery? Certainly, the Founding Generation itself did entrench two issues against amendment into the Constitution,[xxi] and this article is not predicting anything like the Corwin Amendment will happen in the near future.

However, if an amendment were passed that entrenched a substantive issue and entrenched itself, and a future generation decided that such an amendment was invalid and decided to pass its own amendment to the contrary, the Judicial Branch would have a real conflict on its hands. By Article V’s own terms, any amendment becomes itself a part of the text of the Constitution.[xxii] Thus, textually, it would seem as though the entrenching generation’s will would supersede that of future generations. At the same time, the purpose of Article V was to negotiate the revolutionary and counterrevolutionary spirits of the American People.[xxiii] If the Constitution were to be interpreted or construed formalistically to allow for an amendment like the Corwin Amendment (that would also entrench itself) over an issue of significant public concern, which could always fluctuate,[xxiv] that could some day cause the demise of the Constitution itself. It seems anathema to the idea of the Constitution as a social contract, into which future generations enter exactly because they have the opportunity to mold it into their own.[xxv]

If the Judicial Branch would ultimately reject enforcement of the entrenching generation’s amendment, it would have to look beyond constitutional text. There is a lot of focus on the internal structure of the Constitution,[xxvi] but much can and should also be said about the structure of the Constitution within the worldly paradigm and about how and why it binds every generation that is born within or legally decides to become a part of its jurisdiction. These principles not only apply to these extreme cases but for the everyday functioning of constitutional law.

[i] For example, in the field of physics, Lord William Kelvin declared in 1900 before the British Association for the Advancement of Science, “There is nothing new to be discovered in physics now. All that remains is more and more precise measurement.” Eric W. Weisstein, Kelvin, Lord William Thomson (1824-1907), Wolfram Research, www.scienceworld.wolfram.com/biography/Kelvin.html (last visited Dec. 14, 2020). But see Richard Feynman, The Principles of Statistical Mechanics, Cal. Inst. Technology, www.feynmanlectures.caltech.edu/I_40.html#Ch40-S6 (last visited Dec. 14, 2020) (“One often hears it said that physicists at the latter part of the nineteenth century thought they knew all the significant physical laws and that all they had to do was to calculate more decimal places. Someone may have said that once, and others copied it. But a thorough reading of the literature of the time shows they were all worrying about something.”). One area that nevertheless confounded classical physicists at the time was the behavior of blackbodies, “idealized surface[s] that absorb[] light of all frequencies[.]” Farid Alsabeh, The unsolvable problem that foreshadowed quantum mechanics, Medium (Mar. 24, 2019), www.falsabeh.medium.com/the-unsolvable-problem-that-foreshadowed-quantum-mechanics-c43c46686270. In essence, blackbodies behaved as one would expect from classical physics much of the time, but there were extreme cases that classical physics could not explain. Id. Scientists thought that some solution would eventually be discovered to render this eccentricity consistent with the paradigm, but Physicist Max Planck’s discovery ultimately led to an entire paradigm shift and the development of quantum mechanics. Id.

[ii] See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws 23-25 (Amy Gutmann ed. 1997) (arguing that constitutional text should be given reasonable, as opposed to strict, interpretation, modern jurisprudence regarding the Due Process Clause has strayed away from the plain import of the terms, and much of law is and should be about form); id. at 21-23 (discussing how the meaning of the text itself, legislative intent, should be ascertained); see also Christiane C. Wendehorst, Relations: The State as a Foundation of Private Law Reasoning, 56 Am. J. Comp. L. 567, 582-84 (2008) (discussing how focus on text (i.e., textualism), on legislative intent (i.e., intentionalism), and on purpose (i.e., purposivism) all place different emphases on the role of the state). But cf. id. 584 (“Originally, the ‘plain meaning’ rule often went hand in hand with a stress on the legislator’s intent. Under the influence of legal realism and the legal process school, however, purposivism gained ground.”).

[iii] See Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95, 100 (2010) (“[I]nterpretation yields semantic content, whereas construction determines legal content or legal effect.”).

[iv] See Jack M. Balkin, Constitutional Crisis and Constitutional Rot, 77 Md. L. Rev. 147-50 (2017) (explaining how constitutional crises occur when constitutional issues can no longer be resolved through ordinary political or legal processes and disruptions, like riots and civil war, break out); id. at 150 (“A constitution that is on the brink of failure is a constitution in Crisis.”).

[v] Sanford Levinson & Jack M. Balkin, Constitutional Crises, 157 U. Pa. L. Rev. 707, 717 (2009) (describing how arguments could be made that President “Abraham Lincoln’s resupply of Fort Sumter, his failure to call Congress into special session once the South left the Union, his suspension of habeas corpus while Congress was absent, and his emancipation of the Confederacy’s slaves as an emergency measure” could have constituted constitutional crises).

[vi] A. Christopher Bryant, Stopping Time: The Pro-Slavery and “Irrevocable” Thirteenth Amendment, 26 Harv. J.L. & Pub. Pol’y 501, 515 (2003).

[vii] See, e.g., Missouri Compromise, ch. 22, § 8, 3 Stat. 545, 548 (1820) (“That in all that territory . . . under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state, contemplated by this act, slavery . . . shall be . . . prohibited.”).

[viii] Bryant, supra note 6, at 514.

[ix] Id. at 513.

[x] Id.

[xi] Id. at 513-15.

[xii] Professor George Mader describes the Crittenden Proposal in detail as follows:

[The first five] (1) divided U.S. territories into free and slave, depending on which side of the 3630′ latitude the territory sat, with states to be admitted slave and free as their constitutions stated; (2) declared Congress had no power to abolish slavery in federal enclaves in southern states; (3) declared Congress had no power to abolish slavery in the District of Columbia so long as slavery existed in Maryland or Virginia, and required just compensation in the event of abolition; (4) declared Congress had no power to prohibit or hinder transportation of slaves; and (5) added to the Constitution’s fugitive slave provision. The sixth [proposal stated that] “No future amendment of the Constitution shall affect the five preceding articles; nor the third paragraph of the second section of the first article [representation and direct taxes to be apportioned according to the Three-Fifths Clause] of said Constitution; and no amendment shall be made to the Constitution which shall authorize or give to Congress any power to abolish or interfere with slavery in any of the States by whose laws it is, or may be, allowed or permitted.

George Mader, Binding Authority: Unamendability in the United States Constitution – A Textual and Historical Analysis, 99 Marq. L. Rev. 841, 885-86 (2016).

[xiii] Bryant, supra note 6, at 520.

[xiv] Id.

[xv] Id.

[xvi] Id. at 520-21. In President Lincoln’s words,

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 . . . . Holding such a provision to now be implied Constitutional law, I have no objection to it’s being made express, and irrevocable.

Mader, supra note 12, at 888.

[xvii] See U.S. Const. art. V (declaring amendment ratification requirements).

[xviii] Mader, supra note 12, at 886.

[xix] Id.

[xx] Id.

[xxi] See U.S. Const. art. V (“Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”).

[xxii] Id. (“[Amendments] shall be valid to all Intents and Purposes, as Part of this Constitution[.]”).

[xxiii] Cf. Aaron T. Knapp, Law’s Revolutionary: James Wilson and the Birth of American Jurisprudence, 29 J.L. & Pol. 189, 232-33 (2014) (“Wilson’s Constitution, on the other hand, seemed to throw open the revolutionary floodgates, constitutionalizing the spirit of ’76 rather than moderating it and, as we shall see, affirming the inalienable right of the sovereign people, notwithstanding Article V, to engage in direct revisionary action at any time for any reason.”).

[xxiv] This is also one factor that would explain the Founding Generation’s own entrenching provisions regarding the slave trade. Certainly, the slave trade was a major public concern, but the entrenchment ended in 1808, so there was not much time for any revolutionary sentiment over the entrenchment to grow and explode.

[xxv] See Jack M. Balkin, Living Originalism 74-81 (Elizabeth Knoll ed. 2011) (describing Constitutional Redemption).

[xxvi] See, e.g., Charles Black, Structure and Relationship in Constitutional Law 10-15, 17-19, 22-27, 29-32 (1969) (explaining structural reasoning as a method of construing the Constitution).