Comments on: Why the Emancipation Proclamation Mattered and Why It Didn’t

By: Allen Carl Guelzo

Allen Carl Guelzo — Sun, 23 Sep 2012 23:07:09 +0000

I think both Donald and Glenn are right. The “war powers” was a novelty in constitutional doctrine, and the phrase itself only appears for the first time in any official way in speeches J.Q. Adams made in Congress. But it had a certain amount of substance from the very nature of the President’s title, “Commander-in-Chief.” Curiously, when Lincoln refers to the “war power” (in the July 4, 1861 message to the special Congressional session), he speaks of the government’s “war power,” not his; yet he is describing actions which he took unilaterally as president. So long as slavery was, legally, a state construction, Lincoln had no authority to touch it. Nor, for that matter, did Congress, although it tried to do so obliquely through the Confiscation Acts (although Lincoln was probably right to see the Acts as trespass on the ban on attainder in the Constitution). But so long as it could be construed as an action stemming from “military necessity,” then he could indeed lay hands on it through his “war powers.” Still, there was a lot of jurisprudence which called into question the very existence of these “war powers,” which is why Lincoln hesitated as long as he did to invoke the “war powers,” and eventually saw the “king’s cure” in the form of a legislative act (the Maryland and Missouri abolition acts, then the 13th Amendment). My own suspicion is that he shinnied out on the legal limb to invoke the “war powers” to emancipate because he had become anxious in July that McClellan was contemplating a military intervention (Richard Slotkin and William Styple have made strong cases on McClellan’s perfidy in their recent books) which would have wiped out all chance of emancipation. One more irony: it was not so much the fugitives and contrabands who exercised pressure for emancipation — they actually generated more hostility to emancipation from Northern whites who attacked them as potential competition for jobs. (I mean, literally attacked; there were murderous race riots from Brooklyn to Toledo over firms employing ‘contrabands’). It was the slaves who were being worked by the Confederacy — Northern whites, soldiers and politicians especially, were enraged to see black slaves being used in military roles by the Confederates, and that resulted in calls for an emancipation decree which would help drain those slave workers away.

By: Glenn B

Glenn B — Sat, 22 Sep 2012 16:16:38 +0000

Agreed that it was questionable, but the fact remains that war powers was the legal grounds that he stood on when issuing the Emancipation Proclamation. But there was not even a question as to whether there were legal grounds for federal emancipation in the Border States. It was beyond dispute that the E.P. could definitely not apply there. In that light, the 13th amendment becomes necessary in order to end slavery in the Border States and in the other areas exempted from the E.P (as you acknowledge).

By: Donald R. Shaffer

Donald R. Shaffer — Sat, 22 Sep 2012 15:19:11 +0000

Hi Glenn. Thanks for pointing out the legal limitations of Lincoln’s war powers. It is questionable whether Lincoln had the authority to free the slaves even under his war powers. That is one reason why Lincoln began pushing Congress for what became the 13th Amendment, soon after the Emancipation Proclamation became final. To put the EP beyond constitutional challenge (and free slaves in areas not affected by this pronouncement).

Don

By: Glenn B

Glenn B — Sat, 22 Sep 2012 14:53:50 +0000

” For one thing, the Preliminary Emancipation Proclamation exempted the loyal slave states and areas of the Confederacy then under Union occupation in the hopes of conciliating slaveholders there to the federal government. For another, Lincoln would not free any slaves if the rebellious states returned to the Union by the end of 1862.”

These areas were exempted because legally and constitutionally, slavery could only be directly eliminated as a “military necessity.” The Border States were not in armed rebellion against the Unites States, therefore there was no military necessity to free them there. Thus it could not be done. The same would hold true for states that presumably returned to the Union. The only way it could legally and constitutionally be done in the states not in rebellion was through getting them to voluntarily do it themselves, thus Lincoln’s encouragement of gradual and compensated emancipation in those areas.