Section 4 of the Fourteenth Amendment and Compensation for Emancipation of Slaves

Today, one of the least-discussed aspects of the Emancipation Proclamation is whether it gave rise to a takings claim. The Proclamation was enacted under Lincoln’s war powers, whereby he seized property (slaves) in the rebel states, and then emancipated them. Apparently, many southerners sought to raise takings claims against the Federal Government. Similar claims were lodged following the ratification of the 13th amendment. At the time, Congress estimated that the cost of compensating the emancipated slaveowners was somewhere between $1.6 billion and $2 billion, roughly half of the total value of all property (real and personal) in the south.

Section 1 of the 14th Amendment would make all slaves born or naturalized in the United States into citizens of the United States, and of the state in which they resided. This would nullify Dred Scott, and vitiate any claims that slaves could still be held as property. But what about any outstanding claims that resulted from the Emancipation Proclamation, or the 13th Amendment?

In direct response to this concern, the framers of the 14th Amendment added this sentence to the end of Section 4.

“[N]either the United States nor any State shall assume or pay . . . any claim for the loss or emancipation of any slave.”

In other words, this provision would have mooted any possible takings claims against the United States, or a state, as a result of emancipation of slaves. At the time, because the states were given an all-or-nothing ultimatum for ratification, this provision received little debate. It recognizes that the framers of the Amendment were concerned about the ramifications of takings claim. Imagine if a single judge found a taking, and that issue would go up to the Supreme Court! The opinion, if it found a taking, would have to reaffirm the principles of Dred Scott that slaves prior to the 14th Amendment were in fact chattel.

As Professor Aynes notes in his article, “Unintended Consequences of the Fourteenth Amendment“:

Even with Salmon P. Chase, a leading antislavery lawyer and the national architect of the antislavery movement’s legal strategy, as its Chief Justice, the memory of Dred Scott was too vivid in the mind of the public to erase the possibility that a suit by even a single former slaveholder might result in a judgment against the United States for taking property without just compensation. Moreover, the perpetual fear of an alliance between former slaveholders and their former allies, northern Democrats, provided a strong incentive to lay this question to rest by a constitutional amendment. The prospects of risking between $1.5 and $2 billion in debt, when weighed against complying with common law jury provisions, would make the latter seem petty. Faced with such a choice, even a ratifier who disdained common law jury provisions would see ratification as a “greater good.”

This is also an example of an Amendment specifically modifying an earlier Amendment, such as how Section 5 of the 14th Amendment impacts the 10th and 11th Amendments. Here Section 4 of the 14th Amendment seems to create a carveout from the 5th Amendment’s takings clause.

Cross-Posted at JoshBlackman.com

The South Was Right, the Historians Are Wrong: Taking the Antislavery Origins of the Civil War Seriously

Why did the Southern states choose to secede when Abraham Lincoln was elected president in November of 1860? At the time, Southerners attributed “secession winter” to the fear that Lincoln and the Republicans fully intended to make war on slavery, bypassing the Constitution, which left the issue of slavery to the states. Thus, they believed, their only option was to separate from the Union.

Northern Democrats agreed, contending that Republicans intended to circumvent the Constitution’s prohibition against direct federal action against slavery. Agitation by the “Black Republicans” was responsible for the crisis. The Democrats felt vindicated when Republicans refused to compromise on the extension of slavery into the territories. In addition, the Democrats charged, the Republicans intended to refuse to enforce the fugitive slave law that had been passed in 1850 as part of the Great Compromise.

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They Want to Be Like Abe

Abraham Lincoln is in the news again. That means that our politicians are comparing themselves to President Lincoln. This is an old pattern. After David McCullough’s Truman became a bestseller, the political class was busy drawing Truman comparisons. Now they are busy drawing Lincoln analogies. (Perhaps because he is from Illinois, President Obama has been comparing himself to Lincoln for years.) This pattern should not surprise us. John Adams noted that the most fundamental passion in the breast of politicians is the desire to be seen, to be noticed, to be loved: “The desire of the esteem of others is as real a want of nature as hunger; and the neglect and contempt of the world as severe a pain as the gout or stone.” Politicians hope to turn America’s affection to their own benefit by associating themselves with Lincoln, or Washington, or Truman, etc.

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The 150th Anniversary of the Emancipation Proclamation

On January 1, 1863 Abraham Lincoln issued the Emancipation Proclamation freeing slaves in those states that were then in rebellion against the federal government. It is not a document frequently remembered or celebrated despite its intention to liberate slaves in the Confederate States of America. The document itself is careful, lawyerly, and tedious. Written with no explicit appeal to grand philosophic principles, authorized under the President’s war powers, the Emancipation Proclamation is also bound up with the destructiveness of the Civil War, arguable constitutional claims about executive power, and the extension of war beyond the battlefield to civilians and society.

Needless to say there is much to discuss in 2013, the 150th anniversary of the Emancipation Proclamation. Law and Liberty’s Liberty Forum this month features learned essays from different perspectives by David Nichols, Marshall DeRosa, and Allen Guelzo evaluating the constitutional legitimacy of the document and the larger questions of liberty, power, and justice raised by it. I am sure you will benefit tremendously from reading the arguments and questions raised in these essays.

Lincoln’s Code of War

Lincoln's Code
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The next edition of Liberty Law Talk is with professor and author John Fabian Witt on the subject of his new book Lincoln’s Code: The Laws of War in American History. Recently named by the New York Times to its 100 Notable Books’ List for 2012, Witt’s account of the laws of war in American history illustrates the tensions and conflicts that have followed from America’s intention since the Declaration of Independence to fight under the existing laws of war, appealing to them for protection, while also using them to advance American interests. Witt’s account moves through the War for Independence, The War of 1812, the Indian Wars, and the Mexican-American War before arriving at the centerpiece of the book, Lincoln’s Code.

The story behind Lincoln’s Code, the laws of war promulgated by Lincoln in 1863 (General Order No. 100) and followed by the Union Army, is fascinating and, Witt argues, was tied to the Emancipation Proclamation and the need to utilize the newly freed slaves on behalf of the Union effort. The code’s drafter, Francis Lieber, was a Prussian who fought against Napoleon at the Battle of Waterloo, came to America, taught at South Carolina College, and then moved to New York to teach at Columbia College’s nascent law school. Fascinated by war, Lieber’s code of war was central to the war effort of the Federal army. Readers and listeners can obviously judge for themselves if that was a good thing or a bad thing. General William Tecumseh Sherman’s famous March to the Sea does not appear to run afoul of the code. Lieber’s code was widely adopted by European nations in the late 19th century, and subsequently formed the basis for the multilateral treaties on the conduct of war-making in the 20th century.

“Clothed with immense power”

Director Steven Spielberg and screenwriter Tony Kushner’s Lincoln opens with a chaotic battle in a river, black and white soldiers struggling to kill each other in hand-to-hand combat.  We then see pairs of black and white soldiers reciting from memory the Gettysburg Address back to the President.

Lincoln concludes the movie by delivering the Second Inaugural. Most of the time in between is an elaboration of his wartime and Reconstruction strategy and thus a commentary on the purposes of the First Inaugural and the Emancipation Proclamation. These occasions are the rhetorical high points of Lincoln’s presidency, though most of the movie is focused on events in early 1865.

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