Constitutional Slavery

Was emancipation constitutional? While the US prides itself on its property protections, the end of slavery wiped out as much as $10 trillion of private wealth. This would seem to go against Fifth Amendment protections against uncompensated expropriations.

Lincoln did not appear to be overly troubled by the constitutional issues. In the 1863 proclamation text, he cited war powers as authority to abolish slavery in the Confederacy, declaring the act an “act of justice, warranted by the Constitution, upon military necessity” and pleaded for “the considerate judgment of mankind, and the gracious favor of Almighty God.” (Notably, the proclamation did not abolish slavery in the Union – which would have to wait until the Thirteenth Amendment.)

Law professor Sanford Levison lays out three lines of thought:

(1) It was constitutional, but only because it was in fact so limited in its reach. Had Lincoln been more ambitious and ordered emancipation in any territories controlled by the Union army, let alone any of the nonseceding slave states, or, perhaps, had he ordered emancipation earlier in his term of office, when Generals Fremont and Hunter were engaging in their own efforts, he would have violated his oath of office and, perhaps, merited impeachment rather than a Memorial.

(2) It was constitutional, because he indeed had basically unlimited power to do whatever he deemed instrumentally effective in waging a successful war to save the Union. Had he determined that nationwide emancipation would be efficacious to the goal, then he could have issued a far more sweeping Proclamation. After all, as Whiting noted, “the United States have in former times sanctioned the liberation of slaves even of loyal citizens, by military commanders, in time of war, without compensation …. “‘ Indeed, had he determined that simply confiscating slave owner land and redistributing it to slaves who had, say, joined the Union forces, that would have been perfectly proper as well. This means, that the limited reach of the Proclamation that was issued is a sign not of constitutional fidelity, but, rather, of political will. Perhaps an equal way of putting this is to say that this notion completely collapses the notion of “law” into that of “prudence.”

(3) It was, alas, unconstitutional; though, at the end of the day, “no harm, no foul,” because of the proposal by Congress, ratified by the States in 1865, to abolish slavery in the Thirteenth Amendment. As important, under this analysis, is Section Four of the Fourteenth Amendment, added to the Constitution in 1868, which explicitly states that “neither the United States nor any state shall assume or pay.., any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. ‘ In the absence of such language, a careful lawyer imbued with respect for the Takings Clause of the Fifth Amendment might suggest that the United States would indeed have a duty to compensate at least some slave owners for the loss of their property, such as those who had remained loyal to the Union even while living in Confederate states. Indeed, whether for reasons of politics or constitutional fidelity, Lincoln had coupled proposals for emancipation and compensation until the Proclamation itself. Invocation of the Fourteenth Amendment raises other questions altogether relevant to our inquiry this afternoon, which is whether the process by which it was added to the Constitution was in fact constitutionally legitimate, and, of course, whether we care in the least how we answer this question.

In the 1863-65 period, Lincoln’s supporters seemed to favor the second, international law-based interpretation. As Levison writes:

The most widely discussed defense of Lincoln’s powers appears to have been offered by William Whiting, the Solicitor of the War Department, in a book on presidential war powers that went through no fewer than forty-three editions in eight years. He devoted a full chapter to explaining why the President, as commander-in-chief, possessed the power “to emancipate the slaves of any belligerent section of the country, if such a measure becomes necessary to save the government from destruction.. ..””

An important part of Whiting’s argument was drawn from international law concerning the rights of belligerent parties. Indeed, Whiting argued:

It is only the law of nations that can decide this question, because the constitution, having given authority to government to make war, has placed no limit whatever to the war powers. no legal control over the war powers except the law of nations, and no moral control except the usage of modern civilized belligerents.’

Thus, once the President decides that a measure is “necessary and proper,” so to speak, to achieve victory, he can order it, period.

As Levison goes on to note, the legality of the Emancipation Proclamation thus hinges on whether the Civil War was seen as a domestic insurrection or international conflict. If the former, the Constitution would still apply. If the latter, perhaps not.


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