In the post-secession winter of 1861, both Houses of Congress approved a proposed thirteenth amendment to the U.S. Constitution. Three northern States even managed to ratify the proposal before the Civil War intervened. That version of the thirteenth amendment, introduced in the House by Representative Thomas Corwin of Ohio, purported to prohibit any future amendment granting Congress power to interfere with slavery in the States. The Congressional Globe volumes for the winter 1861 legislative session include rich debates about whether the amending power could be used to limit future exercise of that same authority. Those forgotten debates offer significant insights for modern controversies about the exclusivity of, and limitations on, the extraordinary power granted in Article V of the U.S. Constitution. Not long ago the consensus among constitutional scholars was that, for better or worse, Article V of the U.S. Constitution was a dead letter. (1) But reports of Article V's demise have been greatly exaggerated, and the amending provision has more recently enjoyed something of a resurrection, both in Congress and among legal academics. (2) In the last decade Article V has served as an outlet for widespread discontent with Supreme Court decisions protecting flag-burning, prohibiting prayer in public schools, and voiding congressional term limits. These are only the most recurrent and high-profile examples of a growing political trend toward employing constitutional amendment as a means to address divisive and vexing national issues. Indeed, the proliferation of proposed constitutional amendments introduced in Congress has raised questions about whether they reflect a dangerous disrespect for our existing constitutional order. (3)
