Category Archives: History

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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Constitutional Law, Slavery, and Jurisprudence

Stock Photo of the Consitution of the United States and Feather QuillPerhaps no two issues have been more filtered throughout history than that of slavery and the violations of our rule of law in order to preserve it, and eventually unlawfully retaliate against the freed slaves. Many claim the founders themselves were racists while ignoring altogether the actual mindsets of the framers, the early abolition movement, and their utter disdain for slavery (though nothing to do with race, but rather the enslavement of another human being period). It is true, however, that not all were against slavery, particularly those delegates from the South. Compromises/concessions were made in drafting the Constitution, particularly to those with pro-slavery interests. Without doing so, there would be little hope of ratification. This did not preclude our framers from taking meticulous care in wording our Declaration of Independence and Constitution, when originally understood, were the basis for the abolition of slavery. It was only through judicial review/jurisprudence—in particular Dred Scott v. Sanford and Plessy v. Ferguson—not original intent that slavery was read into our Constitution in order justify the lawless Jim Crow laws of the South from the early to mid 20th century.

Slavery is not just a blemish on American history, but the history of mankind. Racism was never a precondition of slavery throughout human history. Most slaves were not racially different from those they enslaved. As Thomas Sowell points out, “Europeans enslaved Europeans, Africans enslaved other Africans, Polynesians enslaved other Polynesians and the indigenous peoples of the Western Hemisphere enslaved other indigenous peoples of the Western Hemisphere” (Sowell, p. 480, Intellectuals). Race wasn’t the primary factor until it became technologically and economically possible to transport peoples of other races from one continent to another. In fact, Pirates transported more than a million Europeans as slaves to the Barbary Coast of North Africa. This is nearly twice the amount of African slaves that were transported to the British colonies. European slaves were also common in the Ottoman Empire as well. Furthermore, whites were still being sold as slaves in the Islamic world long after blacks had been freed in the United States (Sowell, p. 480, Intellectuals).

Two demonstrable facts can be concluded from the aforementioned historical accounts. The first, that the institution of slavery was not based on race. And secondly, whites as well as blacks were enslaved. It is the idea and image alone of racial slavery, and the racism born therein by the antebellum South, that led to egregious misrepresentations of the law that were never intended to preserve slavery, but slowly eradicate it. Many among the intelligentsia will wrongly point to provisions in the Constitution as proof of the framers intent to validate slavery. These voices seldom back up their claims with facts, for doing so will topple their contemporary vision like a house of cards. From the Three-Fifths Clause to the Fugitive Slave Clause, one can find the seeds of the framers discontent with the pro-slavery delegation at our founding.

The Three-Fifths clause of the Constitution is most often mischaracterized as a provision allowing slavery and only counting slaves as “three-fifths” of a person. At first glance, this would seem incredibly demeaning, that is, if one were to look no further in critical analysis. Article I, Section 2, Clause 3 of the Constitution states that the apportionment for Representatives and taxation purposes would be determined by the number of free persons and “three-fifths of “all other persons” (slaves). The southern delegates to the convention, keeping in mind their best interests, supported the idea of counting their slaves as full persons. This would have bolstered their representation in the House. Moreover, counting slaves as full persons would have provided the incentive to import more slaves and further bolster said power and the aggregate amount of slaves in the US (Jenson, p.55). It was the northern delegates that did not want to count the slaves at all to dispel the amount of power given to the southern states. It is significant to point out that the framers never once used the words “slave,” “slavery,” or “property” when referencing the institution or the people, instead opting for the term “persons.” As Dr. Mathew Spalding points out, “Madison recorded in his notes that the delegates ‘thought it wrong to admit in the Constitution the idea that there could be property in men” (Spalding). This will be extremely important later when discussing the jurisprudence associated with slavery.

A more complete account of the framers sentiments can be found in Article I, Section 9, Clause 1 in dealing with slavery. This clause prohibited Congress until 1808 from blocking the importation of slaves into the states. This is a major concession to the pro-slavery delegates, though; it was only temporary exemption from the federal government’s power to limit the slave trade. It also did not proscribe the states from outlawing slavery on their own. Upon the expiration of the prohibition of Congress’ power to limit the slave trade in 1808, Congress did exactly that. Thomas Jefferson signed it into law on January 1, 1808. Speaking of the concession and Congress’ eventual lawful action, abolitionist founder James Wilson noted, “…yet the lapse of a few years and Congress will have the power to exterminate slavery within our borders” (Spalding). Hardly spoken like someone who wanted to preserve slavery. One need not look very deep into Constitutional history and original intent to find the seeds of abolition within our founding documents. This evidence, however, doesn’t stop those from eliding all evidence to the contrary in order to perpetuate a narrative with myth and mantras.

In the Fugitive Slave Clause, the exact wording used was carefully articulated in order to prevent, in the words of James Madison, “the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view” (Spalding, p. 275) The provision initially read “Person legally held to Service or Labour in one state,” before it was changed in the last minute to “Person held to Service or Labour in one state, under the laws thereof” (Spalding, p. 275). This revision made clear that the sates were sanctifying, and made legal, the holding of another as property, and nowhere promulgated in the Constitution. In short, it made clear that slaveholding and the ownership as a human being as property was not based upon either natural law or common law.

It is clear that these concessions made by our most prominent founders to appease those most interested in the institution of slavery and the slave trade. Without doing so, the newly formed government would have little chance at ratification and a successful implementation (Spalding). The Constitution was written not to endorse, condone or perpetuate slavery, but to tolerate it and in some cases do the exact opposite (Congress’ power to block migration and importation of slaves). Frederick Douglass, a former slave and great abolitionist leader elucidates what many people misunderstand today – he said in 1864:

“Abolish slavery tomorrow, and not a sentence or syllable of the Constitution need be altered, it was purposely so framed as to give no claim, no sanction to the claim of property in man. If in its origin slavery had any relation to the government, it was only as the scaffolding to the magnificent structure, to be removed as soon as the building was completed” (Spalding).

With the advent of judicial review as a result of the majority opinion in Marbury v. Madison, a power never explicitly given to the Supreme Court, reinterpretations of the Constitution commenced. It wasn’t until 1857 and the case of Dred Scott v. Sanford that the repercussions of Marbury were felt. From the founding onward slavery was defended and attacked on the principles of morality and the South became increasingly concerned that with a vibrant and prosperous North it could become powerful enough to abolish slavery, the very lifeblood of the South (Bork, p. 29). These simmering tensions rose to the surface when Missouri sought statehood. Congress, with the intention of limiting slave states “ultimately admitted Missouri as a state where slavery was permitted, but balanced that by admitting Maine as a free state…” (Bork, p. 29). Congress also prohibited slavery into the rest of the territory acquired by the Louisiana Purchase north of Missouri’s border. This became known as the Missouri Compromise (Bork, p. 29).

Dred Scott was a slave taken by his owner into the free state of Illinois as well as federal land, which was also considered free soil per the Missouri Compromise. Scott escaped in Illinois but was eventually returned to Missouri as property and later sued for his freedom. His case was predicated on the idea that he became free as soon as stepped foot on free soil. He first sued and won in the Missouri courts where precedent was on his side, only to be later over turned by the Missouri Supreme Court (Bork. p. 29). Scott appealed the decision all the way to United States Supreme Court headed by Chief Justice Roger Taney of Maryland, and comprised of southern sympathizers (Bork, p. 29). The court produced 241 pages containing a string of arguments that were unhinged from any recognizable constitutional basis. What Taney did accomplish, and so intended, was to read into the Constitution the legality of slavery forever. Taney wanted to settle the question and the debate in one fell swoop of his pen (Bork, p.29).

Taney’s decision “denied the power of the federal government to prevent slavery in any state or territory and the power of the federal government to permit a state to bar slavery within its territory” (Bork, p. 30). What this had done was declare the Missouri compromise unconstitutional. Taney went further as he was determined to write into the Constitution a right to own another human being as property. He did so by rewriting the meaning of the Due Process clause of the Fifth Amendment (Bork, p.31). He took a purely procedural clause and gave it substance; ironic considering it clearly contains the word “process” within it. This very decision gave rise to the “substantive due process clause,” which is still used to justify overturning or revising federal and state laws today (Bork p.31). This became an explosive national issue, which ultimately added to the impetus for the Civil war. As Robert Bork so rightly points out, “There is something wrong… with a judicial power that can produce a decision it takes a civil war to overturn” (Bork, p.34). Clearly, there is no way, democratically, a majority of people willing to go to war would’ve supported such an idea.

Unfortunately, this wasn’t the only case where the plain meaning of the Constitution was used against former slaves and blacks. Moreover, it wasn’t the only perversion of the law with serious repercussions. In 1896, the Supreme Court examined the Constitutionality of a Louisiana law requiring railway companies to provide separate coaches for white and black people known as Plessy v. Ferguson (Levin, p. 16). The majority held that “We cannot find that a law which requires the separation of the two races in public conveyances as unreasonable, or obnoxious to the 14th amendment” (Levin, p. 16). The Supreme Court upheld a law that forced private industry to separate individuals on the account of race. This is in direct violation of the plain language used in the 14th amendment guaranteeing equal protection under the law. “Separate but equal” became the law of the land for fifty-eight years, though it was never voted on, nor intended by the framers of the Constitution or the 14th amendment (Levin, p. 16). This doctrine validated and made Constitutional in direct violation of our rule of law (Declaration of Independence/Constitution), the racist and vile Jim Crows of the South. It wasn’t until Brown v. Board of Education in 1954 that it was rightfully overturned (Levin, p. 16). Justice Marshall Harlan’s dissent in Plessy perfectly delineates the Constitutional proviso on law and race:

“But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved….”

De jure discrimination has always been a violation of the natural law principles delineated in our founding documents. De facto discrimination and self-interest that run counter to the rule of law, provided the basis for many of the usurpations of said natural law principles this nation was founded on. It was, is, and always has been a perversion of the law. The state played a huge role in perpetrating and condoning civil rights abuses through jurisprudence and a willful ignorance of our founding documents. These abuses didn’t just begin and end with black Americans. In 1944’s Korematsu v. United States, the state (an activist court) once again upheld executive orders issued by President Franklin Roosevelt “establishing military authority for the forced internment of American’s during World War II” (Levin, p. 14). Over 110,000 mostly Japanese-Americans were rounded up from the coast and relocated to the interior of the Country, all without due process (Levin, p.14). The Supreme Court’s majority opinion was “devoid” of any constitutional basis for such a lawless order (Levin, p.14).

There is little doubt that slavery remains as one of the worst atrocities in American history. There is also little doubt that our founding documents have never condoned it, but have laid the seeds for its demise. Therefore, It is not surprising that Frederick Douglass and Abraham Lincoln turned to the founding documents as a remedy to slavery. As Lincoln so eloquently states, “In the way our Fathers originally left the slavery question, the institution was in the course of ultimate extinction…” (Spalding). Lincoln assumes through federalism that slavery would eventually die out on it’s own. He drastically underestimated the vociferous advocacy and institutional take over by pro-slavery southerners (Bork, p.19). He went on to conclude in 1858, a year after the Dred Scott decision that, “all I have asked or desired anywhere, is that it should be placed back again upon the basis that the Fathers of our government originally placed it upon” (Spalding). Through a subversion and subjective sense of the rule of law, slavery became institutionalized along with the accompanying racism, changing what the founders had originally intended.

The Constitution of the United States did not, and never did condone racism, Jim Crow laws, interment or the ownership of another human being. It’s precisely the opposite, the perversion and reading into the law personal predilections of men with too much power, rather than the objective natural law verities so eloquently and lucidly delineated in our founding documents. Within our polity, only extreme lawlessness and expediency can perpetuate the atrocities that were condoned by some of our most powerful democratic institutions. Ironically, they were all done so in the most undemocratic means, largely insulated from the body politic. At no point did our framers intend for the polity they created to work in such a lawless manner, nor unjustly violate the unalienable rights of man.

 

– Will Ricciardella

 

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Defeating the Anti-Lincoln Myths

Lincoln PortraitLincoln myth number 1) Suspension of the writ of habeas corpus as Lincoln taking dictatorial or unjust authority (the full story).

A few days ago, I came across a post by Being Classically Liberal infamous admin known as (F) cherry picking Lincoln’s record in classic neo-confederate style solely to perpetuate an ideology over fact. Mind you, I consider BCL one of the best classical liberal pages on facebook, sans F, though I can totally appreciate the diversity of opinions, no matter how crack pot some may be.

Much like liberals, radical libertarian ideologues always start the story in the middle, or elide context altogether to further their ideological goals. Thomas Sowell summed this up best as the “triumph of ideology over facts.” So, here are the facts:

Lincoln’s first day in office was March 5th, 1861. On July 4, 1861 ( a mere four months later), in his message to Congress, Lincoln gives his first full explanation for war and recites Article I, Section 9 which reads in full:

“The Privilege of the Writ of Habeas Corpus shall not be suspended, UNLESS when in cases of Rebellion or Invasion the public safety may require it.”

Plainly written in the Constitution and vociferously debated at the Constitutional Convention was the general consensus that there may in fact be circumstances where the writ had to be suspended in the most extreme cases of war or invasion (so there’s that).

Moreover, in Lincoln’s aforementioned message to Congress, Lincoln asks Congress to validate the specific war powers he took the liberty in using (as Commander-in-chief), and eventually Congress allowed the President to suspend the writ during the period of rebellion. This makes sense insofar as Congress itself, during a rebellion may be unable to convene and the writ would have to be suspended suddenly (Lincoln makes this point in his message as well). Also, context must be considered. He called Congress into session to either ratify the suspension or rescind it. The South had taken up arms against the Government of the United States, they were actively trying to overthrow the government the Constitution gave life to. The same document Lincoln swore an oath to protect. As Lincoln so eloquently states:

“[T]he whole of the laws which I was sworn to [execute] were being resisted…in nearly one-third of the states. Must I have allowed them to finally fail of execution?… Are all the laws but one [the right to habeas corpus] to go unexecuted, and the government itself…go to pieces, lest that one be violated?”

Essentially, Lincoln’s oath is to uphold the Constitution and the South is trying to break the union of which it persists. Lincoln is concluding that all the laws of the Constitution shall not go unenforced due to the ambiguity of who actually has the power to suspend the writ of habeas corpus.

The government itself was in peril and was coming apart at the seams. Rather than engaging southern troops, should Lincoln have arrested them on the battlefield, read them their rights, and afforded them due process? Should all the prisoners of war be privy to a writ of habeas corpus during hostilities? It was unclear the United States would even survive the conflict, at which point the Constitution would matter not at all.

The crux of the actual debate, in which Lincoln also considered as mentioned earlier, is the Constitution does not make clear exactly who has the power to suspend the writ. In Ex Parte Merriman, Chief Justice Robert Taney (a southern sympathizer and the author the majority opinion in Dred Scott, declaring the ownership of another human being constitutional and providing the impetus for the Civil War in the first place), argued that because the clause to suspend the writ is in Article I, Section 9 (the article delineating the powers of Congress) that it alone has the sole power to suspend the writ. He never acknowledged the fact there was an active rebellion/insurrection and the republic itself was at stake. He never considered Lincoln’s arguments in his message to Congress, because he didn’t care, he only cared about his own personal predilections and was determined to read them into the law rather than look at it objectively.

Some historians, such as Richard Nelson Current, believe that the writ of habeas corpus clause was put here by the Committee on Style could find no other place for it (it was initially in Article III, then moved to Article I).

 

– Will Ricciardella

 

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