Professor Nichols urges us to revisit the arguments surrounding the Emancipation Proclamation (EP) for two reasons. The second reason noted is that the “constitutional issues at stake . . . are relevant to contemporary American politics.” That’s true enough, especially in light of the ever-expanding powers of the US presidency, the corresponding demise of the constitutional rule of law, and lingering race issues. The first reason, “an exercise in political piety” is more problematical. It manifests the inclination of many to approach the Great Emancipator and his proclamation as divine.
Put simply, how can one objectively approach the subject if one begins with the premise that the subject is to be venerated, approached on one’s knees rather than with an opened analytical mind? Knowing the nature of politics and the motives of politicians, to insist upon political piety is tantamount to checking at the door one’s right to question the motives behind and consequences of Mr. Lincoln’s proclamation. Acknowledging the risks of being denoted an anti-Lincoln rebel, I maintain that Lincoln’s EP was unconstitutional and established the bad precedent of displacing the original constitutional constraints on the executive branch with political expediency.
It is well beyond the scope of this essay to address the constitutionality of secession, but it is the nine hundred pound gorilla in the room which cannot be ignored. Jefferson Davis was correct in stating that to equate secession with rebellion is “a gross abuse of language.” The Southern States that formed the Confederacy were not in rebellion against the United States. Secession was the act of sovereign peoples within their respective States. Once secession was formalized and the Confederacy was formed, the United States Government lacked jurisdiction over the Confederacy.
But for the purpose of this essay let’s concede that point to Mr. Lincoln. If the States remained in the Union, then their continued membership is the petard upon which the EP’s constitutionality is blown to bits.
Slaves were the property of their owners and recognized as such in the US Constitution, US case law, US statutory law, and the legal counterparts in those States in which slavery was recognized.
Was the purpose of the EP to manumit slaves and confer upon them the rights and privileges of citizenship? In the EP itself, Lincoln acknowledged it “as a fit and necessary war measure for suppressing said rebellion.” It was not to manumit slaves and confer upon them the rights and privileges of citizenship. As a war measure would Lincoln fulfill his Article IV, section 4, responsibility to protect Southern States from “domestic Violence.”? Or was his intention to incite a slave insurrection, with all the slaughter and tragedies that entails for both races, in those Southern States not under the control of Union armies?
As explained by Professor Eugene Genovese, Northerners did not understand Southern society. The expectation was that under favorable circumstances, e.g., war, slaves would revolt and Nat Turners and John Browns would spring up across the South. They did understand, however, whites’ fears of slave revolts percolating within Southern society. Jefferson Davis noted that this fear was an important motivating factor behind the Southern secession. One should not conclude that because Northern hopes for a slave revolt were not fulfilled that such was not the intent behind Lincoln’s proclamation.
So where in the US Constitution does the US chief executive have such powers? It should be remembered, as was recalled by the Southern ruling class, that this wartime tactic was resorted to by King George III and noted in the Declaration of Independence as evidence of the king’s “repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states.”
It is safe to assume that if the framers of the US Constitution had explicitly or even implied such a power, ratification would not have been close to receiving the approval of nine States.
Emancipation was to be affected in those States in which “the people whereof shall then be in rebellion against the United States.” The EP was a war measure to appease foreign powers and to wreak havoc in Southern society. Lincoln realized that if the Union were to prevail the law of nations would need to be set aside. War as a sort of gentlemen’s duel between armies would not suffice in and of itself. The war had to be directed against Southern society, of which Southern slavery was pivotal. Lincoln’s two front war against Southern armies and Southern society was epitomized by General Sherman’s brutal march to the sea. In other words, the EP was the first step in modern war’s “mass destructive scale.”
Lincoln’s duplicity in issuing the EP is evidenced by the promulgation in April 1863 of a revised military code, General Orders 100. Crafted in collaboration with the authoritarian Prussian Francis Lieber, Article 24 states that
Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or State can have, by the law of postliminy, no belligerent lien or claim of service.
The EP makes a mockery of General Order 100, by maintaining slavery in areas under the control of Union armies and emancipating them in areas under Confederate control. The EP stipulates
Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:
Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth), and which excepted parts, are for the present, left precisely as if this proclamation were not issued.
And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.
Mr. Lincoln claimed that his power to issue the EP was “by virtue of the power in me vested as Commander-in-Chief.” In The Federalist #69, Hamilton wrote
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.
Nothing in Article II, section 2, authorizes the Commander in Chief to confiscate the property of Southerners, including slaves. Had the Congress moved in that direction it would have been constrained by the “just compensation” clause of Amendment V. Moreover, the EP failed to distinguish between Unionists, neutrals, and Confederates within the CSA, thereby violating the due process of law provision of the same amendment.
When the fog of war lifts, it becomes evident that the Union, neither slavery nor the Constitution, is what really matters. Professor Nichols acknowledges as much by endorsing Lincoln’s argument of necessity. That is, the EP was necessary to preserve the Union and whatever is necessary to preserve the union is ipso facto constitutional. If that’s true, then why is the following not also true: POTUS is empowered to incite and promote the indiscriminate slaughter of US citizens in the quest to preserve the Union.
The argument of necessity becomes the touchstone of POTUS’s constitutional powers. In the case of Lincoln, consent of the governed, the constitutional rule of law, fundamental rights and liberties are all subservient to POTUS’s determination, to the best of his ability, “preserve, protect and defend” [not the Constitution of the United States but] the Union as empire. Union as empire is an important qualification. Had Lincoln let the Southern States go in peace, he still would have had his Union, albeit a somewhat smaller and poorer one.
At what point (and this is highly relevant today) does preserving the Union transcend preserving fundamental rights such as life, liberty, property, and a government based upon the consent of the governed? And who is to decide when that point has been reached? Based upon Lincoln’s untethered pro-Union rhetoric, we are instructed to defer to the ruling class behind the “long train of abuses . . . with a design to reduce them under absolute Despotism”. I encourage readers to reconsider the “Facts” the Declaration of Independence promulgate as evidence that King George III intended to establish an “absolute Tyranny over these States” to the benefit of the British Empire’s ruling class. The Declaration instructs the colonies qua States that it is their “duty to throw off such Government . . . . “as to them shall seem most likely to effect their Safety and Happiness.” In 1776 Americans did not wait for approval from their English/British masters, and neither did their 1860/61 Southern progeny.
Should the political machinations of Lincoln and his political supporters negate this core American political tradition, as embodied in the US Constitution? If so, then the argument of necessity can be and has been made that President Obama’s power grab to provide the allegedly fundamental rights of healthcare, education, housing, etc., are on the same argument of necessity terra firma upon which Lincoln built up and stood.
The US Supreme Court, part and parcel of the same ruling class, has been consistently acquiescing to that view. For example, in Youngstown Sheet & Tube Company v. Sawyer (1951), Chief Justice Vinson’s dissenting opinion argues on behalf of expanding presidential powers based the argument of necessity. Relying on and commending Lincoln’s expansion of executive powers, he argued
The most striking action of President Lincoln was the Emancipation Proclamation, issued in aid of the successful prosecution of the War Between the States, but wholly without statutory authority. In an action furnishing a most apt precedent for this case [i.e., President Truman’s seizure of the privately owned steel mills], President Lincoln, without statutory authority, directed the seizure of rail and telegraph lines leading to Washington. Many months later, Congress recognized and confirmed the power of the President to seize railroads and telegraph lines and provided criminal penalties for interference with Government operation. This Act did not confer on the President any additional powers of seizure. Congress plainly rejected the view that the President’s acts had been without legal sanction until ratified by the legislature. Sponsors of the bill declared that its purpose was only to confirm the power which the President already possessed. Opponents insisted a statute authorizing seizure was unnecessary, and might even be construed as limiting existing Presidential powers.
Justice Black, rejecting the expansion of executive powers asserted “The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.” Why? According to Justice Black, the US Congress did not authorize President Truman to seize the private property of the steel mills owners. Had the Congress statutorily concurred with Truman’s argument of necessity, then the president would be free to act.
Presidential discretion, with or without legislative compliance, is a very weak reed upon which to rest fundamental rights. Today, with the ever-growing size of government and increasing executive powers, it behooves us to recall the Founders’ “fears of power” and the critical role Mr. Lincoln should play in the enhancement of those fears. This would be not only an acceptable “exercise in political piety” towards the principles of 1776 and 1789 but an imperative one. But for that to happen, Americans must first reconsider their unquestioning adoration of Mr. Lincoln and his marquee claim to fame, the Emancipation Proclamation.
For example, what if emancipation could have been achieved more humanely, effectively, and constitutionally? This question is rarely asked, and when asked not taken seriously. As recently documented, the EP did not create a panacea but a living hell for the emancipated.
The most unsettling aspects of Professor Nichol’s defense of Lincoln’s EP is the failure to consider how it adversely affected the emancipated, benefited the white ruling class that elevated Lincoln to the presidency, and altered the powers of POTUS.
Regarding the latter, we the living should pay special attention to his concluding paragraph:
Some have argued that Lincoln’s commitment to abolition was either half-hearted or cynical. His goal was to preserve the union and centralize power in order to satisfy his personal ambition. Such assessments, however, dismiss too quickly the complexity of Lincoln’s arguments on slavery and the Constitution. In particular, they fail to appreciate Lincoln’s profound understanding of the relationship between necessity and principle in the practice of politics. Unlike abolitionists such as Garrison, Lincoln did not believe that he could act on abstract principle alone. One must recognize the limits imposed by political necessity. But even though our appeal to principles is limited, Lincoln also argued we have some ability to alter the shape of necessity (bold not in original). It is Lincoln’s belief in this possibility that explains his commitments to human freedom.
The emboldened two sentences could prove to be fatal to liberty. What is at issue is the clash between the personal ideology of the POTUS and the constitutional constrains on political power as well as the consent of the governed.
Let’s take Professor Nichols at his word, with this qualification. What if corporate railroad lobbyist/lawyer Lincoln politician extraordinaire altered “the shape of necessity” through a horrific war against his fellow Americans? That war not only cleared the way for a huge expansion of national power, but also proved to be highly profitable for the northern white ruling class. As we have been recently instructed by our current elites, a crisis is a terrible thing to waste. Or better yet, create a crisis and then run with it. Anyone who has taken the time and effort to study the events leading up to Major Anderson’s surrender of Fort Sumter and more recent national policies understands the risks involved with centralizing so much power in so few hands, whether the year is 1863 or 2013.
 “Almost every slaveholder claimed to trust his own slaves but to fear his neighbors.” (Eugene Genovese, Roll Jordan Roll: The World the Slaves Made [NY: Vintage Books, 1974], pp. 137 and 595)
 See Thomas DiLorenzo, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and Unecessary War (Prima Publishing, 2002), p. 123.
 See “Lincoln’s Code”. Harvard Law School, Faculty workshop, spring 2011.
 343 U.S. 579 (1952).
 See Kirkpatrick Sale, Emancipation Hell: The Tragedy Wrought By the Emancipation Proclomation 150 Years Ago (CreateSpace Independent Publishing Platform, 2012).
David Nichols’ comment on Abraham Lincoln’s decision to issue an Emancipation Proclamation on January 1st, 1863, is a perceptive and nuanced appraisal of Lincoln’s path to the proclamation. The principal question with which Nichols has had to deal is how to characterize that decision, and there are at least four ways Nichols could have done…