Understanding the Emancipation Proclamation

Team of RivalsTHE EMANCIPATION PROCLAMATION revisited, denuded and within historical context.

I often hear that Lincoln is a tyrant and his goal was to centralize power in the federal government to satiate his own ambitions. His Emancipation Proclamation is used as evidence. It’s often portrayed by revisionist historical ideologues–more wedded to a vision than to truth–as a baseless usurpation of power by the executive, and theft of private property. In fact, it was neither, and one would have to PURPOSELY ignore Lincoln’s arguments for his emancipation proclamation and many in Congress who implored him to do it sooner than he actually did. Lincoln did not roll out of bed one day and blithely decide to take “property” from sovereign American citizens (let’s suppose, for argument sake, another human being can be considered property). It’s far more nuanced than that. This narrative elides nuance and context, I will do my best to fill the holes and tell the whole story of the Constitutional rationale behind the Proclamation.

First, it’s important to understand exactly what the Emancipation Proclamation actually did. It’s also important–especially those that decry Lincoln’s suspension of habeas corpus without the consent of Congress–to point out The First Confiscation Act in 1861, authorizing the confiscation of ANY property used in the REBELLION of the against the U.S. government. It wasn’t until September of 22, 1863, after the battle of Antietam, a union victory, that he issued his proclamation. It declared that “all persons held as slaves … shall be then, thenceforward, and forever free.” NOTE: this applied only to the states that were in REBELLION, as the Constitution itself makes a distinction between a nation at peace and one in rebellion. It did not free the slaves in the slaveholding border states such as Delaware, Kentucky, Maryland or Missouri and other slaveholding areas of the south that were already under union control. Lincoln was careful in his timing, ensuring that the proclamation would have as large of an positive impact as it possibly could in helping to preserve the union.

Now, for Lincoln’s actual position on emancipation, slavery and preserving the union.

1. Lincoln knew that his desire to end slavery was Constitutionally untenable. The Constitution provided the executive with absolutely zero power to prohibit it in the southern states. At the ratification, no southern delegate would have voted in favor of the document had this been the case. Lincoln states in his first inaugural address, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists, I believe I have no lawful right to do so, and I have no inclination to do so.” But Lincoln didn’t stop there…

1a. In the same inaugural he went on to quote the Fugitive Slave Clause of the Constitution explaining, “It is scarcely questioned that this provision was intended by those who made it for the reclaiming of what we call fugitive slaves; and the intention of the lawgiver is the law. All members of Congress swear there support to the whole Constitution–to this provision as much as any other.” It’s important to note Lincoln’s fidelity to the Constitution.

2a. Lincoln goes so far as to propose a Constitutional amendment that would proscribe the federal government from ever interfering with the domestic institutions of a state. He explains, “holding such a provision to now be implied constitutional law, I have no objection to it’s being made express and irrevocable.”

Here, Lincoln validates two of the most important constitutional claims of the southern slaveholders, a constitutional prohibition against federal interference in the affairs of the states, particularly in regards to slavery. And, the constitutional right of slaveholders to recover their slaves.

In 1854, writing on this very issue, when southerners “remind us of their constitutional rights, I acknowledge them, not begrudgingly, but fully and fairly…”

So where was the disagreement?

Lincoln differed from the south in two prominent areas, the federal government’s ability to limit the expansion of slavery in the territories (The activist decision in the Dred Scott case unlawfully invalidated the federal government’s power to do so), and a perceived right of secession. It is extremely hard for one to rationalize those who have claimed to leave the union and the Constitution, while still seeking constitutional protection of slavery.

Though, Lincoln understood he had no power in times of peace to limit or abolish slavery. If he were to do so, the South could threaten the union. Moreover, the framers had capitulated on the issue of slavery and made explicit concessions to slavery in the Constitution, and in Lincoln’s opinion, those must be honored. Lincoln was then consigned to the very same necessity of the institution of slavery as our framers.

It wasn’t until the Southern states seceded, rescinding one of the main arguments for restraint in the North. The act of rebellion itself (secession) eliminated the threat of said rebellion as a reason for the North to accept the status quo. As Professor David Nichols so eloquently states, “Lincoln believed that the rebellion had turned the Constitutional tables on slavery.” The issue of slavery was going to die a slow, arduous and costly death, not at the hands of Lincoln, but at the behest of an insecure and lawless south, that was threatened by the growing industrial power and discontent with slavery itself in the North. Despite the act of rebellion, Congress’ First Confiscation Act, the Second Confiscation Act (which he would later point to as justification), and efforts by his generals to emancipate the slaves, Lincoln remained steadfast in his OPPOSITION to emancipation (as the timing was incorrect). As Lincoln states in a letter to Horace Greely (in response to Greely’s editorial. A few years after Lincoln’s death, Greely noted it was not a response at all, but Lincoln used it as a platform for his “altered position” on emancipation):

“…paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause. I shall try to correct errors when shown to be errors; and I shall adopt new views so fast as they shall appear to be true views.”

Lincoln argued, in my opinion rightly, that his commander-in-chief powers, and the status of rebellion in the southern states, The First Confiscation Act and The Second Confiscation Act, afforded him the power to emancipate the slaves in order further the union cause and preserve the Constitution. What better way than to deprive the South of a large part of its labor force while simultaneously bolstering the size of the union army (estimated at 130,000 soldiers) with the recruitment of the newly freed slaves.

Once the North recognized southern slaves to be free, and as they were fleeing to Union camps or by union soldiers, made the political reality of slavery ever being restored in jeopardy. Also, the fact that 130,000 freed slaves had fought side-by-side with whites in the union army, invalidated any notion that slaves were not persons.

The border states, in which the Emancipation Proclamation did not apply to, and with much urging from Lincoln, understood this reality and began plans of their own for emancipation. Lincoln then wanted a constitutional amendment approved as soon as possible so that slavery as a constitutional issue will no longer remain in doubt (13th Amendment).

Lincoln bided his time until he knew it would help the union succeed. This is where he derived his just powers from, not solely from a desire to free the slaves. In their misguided and unconstitutional attempts to secede THEY opened the door for the emancipation of the slaves. In this sense, the South was their own worst enemy, and their perverted interpretation of the Constitution was their ultimate downfall. How ironic.

I’ll leave you with this quote by Lincoln:

By general law, life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the Constitution, the the preservation of the nation.”


– Will Ricciardella



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Filed under Conservatism, History, Jurisprudence, Natural Law, Political Economy, Political Philosophy

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