How was the Emancipation Proclamation constitutional?

[politicallefty]

This is a question that's been bothering me for awhile, I have to admit. Obviously, the Emancipation Proclamation was a profound statement and one that set the stage for constitutional abolition only a few years later. What I don't understand is how it was constitutional or under what authority the President himself had to issue such a proclamation. The Constitution at its adoption was without question pro-slavery. I don't see how that can be disputed. It considers the issue a number of times in different ways. Am I missing something?

[brucejoel99]

From what I've gathered, its constitutionality depends on the legality of the Confiscation Acts of 1861 & 1862. Since slaves were considered property & not people, they were deemed contraband of war. The Emancipation Proclamation took it one step further & freed slaves from areas not controlled by Union forces, an action that heavily depended on the view of the powers granted to the President during war, which was never really tested in court.

According to historian LaWanda Cox:

In substance, as well as in timing, Lincoln's decision for emancipation compares favorably with that of Congress. The Confiscation Act was directed primarily at Slaves within Union lines belonging to persons in rebellion. The Emancipation Proclamation applied to Confederate-held areas, even those which might never be occupied by Union forces; and it applied to all slaves within Confederate lines whatever the allegiance of their masters. The congressional act would free slaves 'as captives of war,' the presidential proclamation as 'a fit and necessary war measure.' The omission of enemy areas under Union control from the force of Lincoln's proclamation represented not a concession to slavery, as often assumed, but a concern that freedom by presidential fiat be legally defensible.

[politicallefty]

I don't want to make it seem like I'm arguing in opposition of emancipation obviously, but it seems like that's a vast overreach of presidential power and also a violation of the Takings Clause of the 5th Amendment. I'm also fairly sure the Fugitive Slave Act was still in force at that time, though obviously the Confiscation Acts could have obviated some of those provisions. The United States never recognized the Confederate States as legitimate, so the Constitution in its entirety should theoretically have applied to the so-called Confederacy during the Civil War.

[brucejoel99]

I don't want to make it seem like I'm arguing in opposition of emancipation obviously, but it seems like that's a vast overreach of presidential power and also a violation of the Takings Clause of the 5th Amendment. I'm also fairly sure the Fugitive Slave Act was still in force at that time, though obviously the Confiscation Acts could have obviated some of those provisions. The United States never recognized the Confederate States as legitimate, so the Constitution in its entirety should theoretically have applied to the so-called Confederacy during the Civil War.

You used the word "seems" within your point there, & that's important, because it serves to illustrate how there's a significant difference between something being clearly unconstitutional & something not being clearly constitutional. The Emancipation Proclamation was essentially on the latter side of that divide: he couldn't be truly sure whether it was constitutional, because it was a novel & unprecedented issue, but he could be sure that nobody else was sure either.

This doesn't bear directly on the question of whether the Proclamation was constitutional or not per se, but it's very important when it comes to how it should be characterized, because it means that - even if the consensus in retrospect was that it was unconstitutional - it'd still be wrong to describe him as flouting &/or ignoring the law at the time. With an area of law that was still uncertain, the legality of his decision would - by necessity - be determined retroactively, & the only way to find out whether it was constitutional or not was to go ahead & see what happened.

Of course, Lincoln - as an attorney - knew that he'd be able to act within his legal capacity as Commander-in-Chief during war on American soil against other Americans. Hence why he wrote within the Proclamation that freeing the slaves was "a fit and necessary war measure" by allowing "that such persons of suitable condition, will be received into the armed service of the United States." By framing it in this way, Lincoln justifies his actions through Article II, Section 2 of the Constitution, which gives him title as "Commander in Chief of the Army and Navy of the United States."

To stay within what Lincoln & others perceived as constitutional limits, the Proclamation only freed slaves in rebelling states. In the Proclamation, Lincoln wrote that only in the states "in rebellion against the United States... [& who weren't] in good faith, represented in the Congress of the United States by members chosen" would slaves be emancipated. He couldn't constitutionally change the status of slaves within the states who weren't rebelling & did have representation in Congress. Thus, slaves were freed in the Confederate States of America, but not in MO, KY, MD, & DE, which were still apart of the Union.

The Constitution gives rights to the President during wartime when the country is under threat. Lincoln recognized those threats & acted in what he believed to be the best interests of the Union. So, from a strict constitutional perspective, Lincoln violated neither the letter nor the spirit of the Constitution.

[True Federalist (진정한 연방 주의자)]

The Emancipation Proclamation was deemed constitutional as a war measure.  It essentially confiscated as contraband of war all the human property of the area still in rebellion, and then freed it as surplus to requirement.  It didn't free any slaves in the area still loyal to the United States precisely because that would have been unconstitutional.

[politicallefty]

I'm not trying to debate here, so I'm not going to quote everything. I'm just trying to figure this out logically for my own sake.

Okay, so it's probably settled that President Lincoln's power to do so came at least in part from Congress passing the Confiscation Acts because it doesn't seem like the powers as Command-in-Chief and over rebellion and insurrection are enough to justify the action constitutionally. The Confederacy may have been in open rebellion against the United States, but according to US law and Supreme Court precedence, unilateral secession was not constitutional and therefore the Constitution never stopped applying. How was the Takings Clause not violated?

[brucejoel99]

I'm not trying to debate here, so I'm not going to quote everything. I'm just trying to figure this out logically for my own sake.

Okay, so it's probably settled that President Lincoln's power to do so came at least in part from Congress passing the Confiscation Acts because it doesn't seem like the powers as Command-in-Chief and over rebellion and insurrection are enough to justify the action constitutionally. The Confederacy may have been in open rebellion against the United States, but according to US law and Supreme Court precedence, unilateral secession was not constitutional and therefore the Constitution never stopped applying. How was the Takings Clause not violated?

You're partially misinterpreting that Supreme Court precedent - Texas v. White (1868). Yes, the Court held that the Constitution didn't permit states to unilaterally secede, but at the same time, they also held that when a state does engage in a(n illegal) suspension of its government, the U.S. is nevertheless required to put down the rebellion & re-establish the proper relationship between the given state & the federal government. This requirement is created by the Constitution in its grant of the power to suppress insurrections - thereby making it so that Lincoln's authority as Commander-in-Chief in putting down the rebelling insurrection was enough to constitutionally justify the Proclamation - as well as the responsibility to ensure for every state a republican form of government.

If the Emancipation Proclamation had applied to the North, then yes, it would've constituted a violation of the Takings Clause. However, it wasn't a 'taking' in the context of the 5th Amendment because it only applied to the Southern states, which - again, per Texas v. White - weren't entitled to receive constitutional protections while engaged in rebellion, despite (or rather, in a way, because of) the fact that their rebellion was illegal.

[Fuzzy Says: "Abolish NPR!"]

It wasn't.  It was a War Tactic.  Lincoln "freed" only the slaves in slave states.  In some cases, he exempted freeing slaves in counties that were showing loyalty to the Union. 

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.