The Thirteenth Amendment as a Conservative Counterrevolution

  In “If Slavery Is Not Wrong, Nothing Is Wrong,” I proposed that the Civil War was fought to restore the original unity of the Declaration of Independence and the Constitution, and that the Thirteenth Amendment, adopted in 1865, was the culmination of that colorblind restoration. In the antebellum period, opponents of slavery could not specify what would result once slavery was ended. Would free blacks have equal rights? Vote? Intermarry with whites? Thus did Stephen Douglas mock Abraham Lincoln. The post-bellum answer of universal freedom nonetheless preserved much of the antebellum distinction between being anti-slavery and being anti-black. While Black Codes prevailed…

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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…

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This Republic of Federalism

Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that Conscience“American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles.

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Slave Property in the Old South

This quarter, I assigned Liberty, Equality, Power in the U.S. history survey. I might try another book next year because it’s getting to be too expensive for the students. Anyway, it’s a solid book. Reading over the chapter on "The Old South, 1790-1850," I stumbled over this bit, describing the deep South: "Slaves under the task system won the right to cultivate land as ‘private fields'—farms of up to five acres on which they grew produce and raised livestock for market. There was a lively trade in slave-produced goods, and by the late 1850s slaves in the lowcountry not only produced and exchanged…

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Friday Roundup, December 6th

What should be the purpose of the for-profit corporation? Debate over this question has ignited yet again, and is the subject of this month's Liberty Forum. George Mocsary's lead essay "The Future of Shareholder Wealth Maximization" argues both that shareholder wealth is the bedrock of corporate law and for the efficacy of shareholder wealth as the norm for corporate activity in that it affords individuals the best possible latitude and security for entering into productive association with one another. Alexei Marcoux has the first response essay "For Shareholder Wealth Maximization, Against Corporate Purpose." Cynthia Williams, co-editor with Peer Zumbansen, of…

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Slavery, Abortion, and the Politics of Constitutional Meaning

Slavery, Abortion, and the Politics of Constitutional Meaning

This Liberty Law Talk is with political scientist Justin Dyer on his latest book, Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013). In debates over the legality of abortion common opinion has focused on the connections between the legal treatment of slavery in the nineteenth century and the contemporary status of abortion as a fundamental right. Dyer takes this debate as his starting point but goes much deeper by showing the layers of constitutional, political, and philosophical meaning linking slavery and abortion in the American experience. This conversation covers the ground of the Dred Scott opinion,…

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The Peculiarity of the Three-Fifths Rule

The three-fifths rule of the Constitution treated slaves as three fifths of a person for purposes of representation and direct taxation. This provision is puzzling in many ways (above and beyond its connection with slavery). One common way it has confused people is that people often regard the Clause as problematic because it did not treat slaves as 5/5 of a person. But if the Clause had treated slaves in that way, it would not have harmed but benefited slave states, since slave states would have enjoyed more representation in the Congress and the electoral college. But I am puzzled by…

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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…

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Lincoln’s Code of War

Lincoln's Code

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…

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Religious Freedom and State Power in the Latin American Experience

The recent appearance of a number of Christian historical movies, such as There Be Dragons, on the sufferings of Catholics during the Spanish Civil War; Of Gods and Men, on a massacre of Trappist monks by Muslim fighters in 1996; and For the Greater Glory, on the Cristiada War in Mexico, makes John Lynch’s New Worlds: A Religious History of Latin America curiously timed.  This excellent book gives a panoramic description of the rise, ups and downs, and present state of religion in Latin America.  It covers the different Christian churches, Judaism, Vodou, Santeria, and Amerindian religions.  However, it justifiably focuses on the Catholic Church, for as the author makes clear, Catholicism has been for five centuries “the defining religion of Latin America.” 

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