A Complicated and Constitutional Act of Liberty and Justice

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 this:

(a) The Proclamation was an act of justice but had no constitutional legitimacy, and therefore was an unconstitutional usurpation which we all ought to regret;

(b)   The Proclamation was an act of justice but had no constitutional legitimacy, and shows that the Constitution is a limited and unimaginative document which we should feel free to set aside when the circumstances call for it;

(c)   The Proclamation was a cynical political gesture, totally lacking in either sincerity or constitutional legitimacy, and the act of a lawless and calculating demagogue;

(d) The Proclamation was an act of justice, but shrewdly designed to satisfy constitutional as well as moral imperatives.

Happily, Nichols opts for (d). Unhappily, partisans of the “Lost Cause,” together with Lincoln’s Democratic opposition, would have chosen (a), while modern progressives will doubtless embrace (b). Unsatisfied libertarians, neo-Confederates and race-card-players the most likely to champion (c), though with the understanding that there are some people who will prefer to mix-and-match between the first three alternatives. Nevertheless, as it seems to me, (d) is the correct answer, and Nichols is right to promote it.

This means, however, Nichols has also chosen the most complicated answer, which is itself an indicator of its wisdom. It needs to be said at the very beginning that the Constitution makes no explicit provision for the ending of slavery, nor does it empower the President to do so, under the normal operations of the government. This absence was one of the handful of mistakes made by the Founders, although I say mistakes with a certain sense of unease, first because the Founders, quite remarkably, did not make very many mistakes in creating the instrument of government under which we still live, and second because saying so will alienate good people who are worried that any admission of unwisdom in the Constitution will provide leverage for modern-day progressives who want to junk the whole thing. But unless we want to impute divine inspiration to the Constitution (and that would be very odd in a document which nowhere mentions God), candor alone should make us admit that even the Founders could be wrong. (And if they were not, why do we have the first twelve amendments?).

Slavery was so profound a contradiction of both the Declaration of Independence and the preamble of the Constitution that only the ugly self-interest of entrenched slaveholding could have prevented the Founders from dealing with it. “Under which of the old tyrannical governments of Europe is every sixth man a slave, whom his fellow-creatures may buy and sell and torture?” taunted a sarcastic Sydney Smith, from his English perch,

what right has the American, a scourger and murderer of slaves, to compare himself with the least and lowest of the European nations? — much more with this great and humane country, where the greatest lord dare not lay a finger upon the meanest peasant? What is freedom, where all are not free? where the greatest of God’s blessings is limited, with impious caprice, to the colour of the body?

It is evident from the debates of the Convention that this predicament was seen very clearly by a large number of the delegates; it is also evident that slaveholders really were fully prepared to hold ratification of the Constitution hostage if a finger was laid on slavery. To get the Constitution, the Founders had to pass by on the other side from slavery, to leave it undisturbed, telling themselves all the while that it was a doomed institution anyway and would eventually wink off on its own. But there was enough uneasy feeling on the subject that even the slaveholding delegates agreed to a provision empowering Congress to end the import trade in slaves. And nothing was done in the first Congress to alter the ban on slavery attached to the organization of the Northwest territories. What the Founders could not anticipate, or preferred not to anticipate, was the sudden explosion in the value of slave labor in growing cotton, the white gold of the Industrial Revolution. From this sprang first its resistance to winking-off, followed by assertions of its rectitude (fuelled for the most part by its profitability), then by demands that it be permitted free expansion into the western territories, until by 1860, the slaveholding states were willing to disrupt the Union entirely in order to protect it.

It also needs to be said that the Constitution is a document written for the ordinary operating environment of government. It is does not address every possible situation, and it certainly does not begin to identify all the possible emergencies into which the government it created might be plunged. It is vague on the procedures that govern war-making, except for its determination to split governmental authority in war between the legislative and the executive branches. It is even more vague on what to do in the event of rebellion, since the exigency of rebellion is mentioned only once (Article 1, section nine), and only as a context in which the privilege of the writ of habeas corpus may be suspended. What other powers the national government has to suppress a rebellion or deal with any similar uprising or emergency are otherwise absent. The Whiskey Rebellion in 1795 collapsed too quickly to establish much in the way of precedent; the Dorr Rebellion in Rhode Island in 1842 provided some guidance about the legitimacy of martial law and suspensions of the writ, but that guidance was provided by a Supreme Court whose Chief Justice – Roger B. Taney – would turn out to be an ardent advocate of secession in 1861.

So, precisely because the Constitution failed to offer much guidance on how to deal with either slavery or rebellion, Abraham Lincoln had very little to guide his response when eleven slaveholding states announced their intention of unilaterally seceding from the Union, largely for the purpose of protecting and perpetuating slavery. In the absence of that guidance, Lincoln preferred to treat the rebellion and slavery as two entirely different problems, with two entirely different solutions, the first military and the second political. But even there, Lincoln lacked a clear Constitutional path of action, growing out of the division between executive and legislative authority in war. Lincoln could conduct the military operations which suppressed the rebellion by virtue of his designation as Commander-in-Chief, but Congress probably had the real authority in declaring a de facto state of war in existence.[1]

But the outbreak of the conflict caught Congress not only out of session, but between a lame-duck Congress and an incoming one which was not scheduled for its first regular session until December of 1861. Lincoln acted on his own, stepping into the shoes normally worn by Congress, by imposing a blockade, authorizing the purchase of war supplies, and expanding enlistments into the Regular Army and the state Volunteers. This, he admitted, was not exactly playing by the Constitutional rules.  It was not clear, Lincoln frankly confessed to a hastily-called special session of Congress which met on July 4th, 1861, whether “these measures” were “strictly legal or not.” But if he hadn’t acted, Congress would probably (and correctly) impeached him for negligence. “In such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?” To borrow a typically Victorian image, one does not beg pardon before pushing the crippled widow out of the way of the streetcar. “So viewing the issue, no choice was left but to call out the war power of the Government; and so to resist force, employed for its destruction, by force, for its preservation.”

Dealing with slavery was entirely another matter, and one which Lincoln hoped could be addressed quite apart from the rebellion, if only because the authority he had to deal with the first did not include authority to deal with the second. Slavery was a political question, and, even more to the point, it was the private preserve of state legislation. The Constitution might have failed to ban slavery, but it also did nothing explicitly to legalize it, either; all such legalization had to be the act of state legislatures. So, even while he moved into action against the rebellion as Commander-in-Chief, he moved against slavery as a political negotiator, approaching the slave (but still loyal) state of Delaware with a buy-out plan in November 1861, which would induce the Delaware legislature to emancipate its slaves on its own. Lincoln hoped that if the Delaware legislature took the buy-out (which would come in the form of U.S. bonds), this would create a spillover effect into the remaining three other slave (but still loyal) states of Maryland, Kentucky and Missouri to do likewise. Their action, in turn, would convince the rebellious slave states of the futility of preserving slavery. They would come to the negotiating table, lay down their arms, and in return for amnesty, embrace the buy-out strategy. “If Congress will pass a law authorizing the issuance of bonds for the payment of the emancipated Negroes in the border states,” Lincoln assured his old judicial friend, David Davis, then “Delaware, Maryland, Kentucky, and Missouri will accept the terms.” By these means, “it seemed to him that gradual emancipation and governmental compensation” would bring slavery “to an end.”

Delaware, of course, did nothing of the sort. And what was worse, two things in the military situation changed. First, it became quickly apparent that the Confederacy was using its slaves – thousands of them – as a military asset, in constructing fortifications, performing non-combatant work, and accompanying the Confederate armies as logistical support. (As many as thirty thousand slaves accompanied Robert E. Lee’s Army of Northern Virginia in its invasion of Pennsylvania in 1863). Second, Lincoln’s own principal general, George B. McClellan, a Democrat indifferent to the elimination of slavery, balked at supporting even the few steps which had been taken toward the end of slavery. It now became possible to consider emancipation as a way of undermining the military usefulness of slaves to the rebellion, on the strength of his military authority as Commander-in-Chief (and tediously justified as a “military necessity”); it might also become imperative to issue a presidential emancipation proclamation to forestall the overthrow of the government and the Constitution by McClellan.

The two imperatives – the military and the political – had converged. And on his authority as Commander-in-Chief, Lincoln proposed on January 1st, 1863, to do what no president in any normal Constitutional environment could have conceived – declare free any slaves then held in areas of the United States controlled by the rebels. He did not try to emancipate all slaves everywhere, because that would have been wide of his remit as a Commander-in-Chief in imposing emancipation as a war measure; hence, the slaves of Kentucky, Maryland, Missouri and Delaware were exempted, along with the slaves in any occupied districts of the Confederacy where the normal civil and judicial processes had been restored.  Nor did he try to abolish slavery as a legal institution; that still remained a state prerogative, and he had no Constitutional authority as president or as Commander-in-Chief to issue such a ban. In fact, as Lincoln realized all too well, it could have been possible in theory, even after a successful suppression of the rebellion, for slavery to have repopulated the South from the areas the Proclamation exempted. This is why his ultimate solution – “the king’s cure for the evil,” as though slavery were a species of scrofula – was an amendment to the Constitution, obliterating the institution of slavery completely. That, however, was an action which he realized he could not undertake unilaterally as president, or even as Commander-in-Chief. When his Treasury Secretary, Salmon P. Chase, urged him to do just that, and emancipate the slaves in the remaining states and districts, Lincoln’s response was a tribute to his reverence for Constitutional process: “If I take the step must I not do so, without the argument of military necessity, and so, without any argument, except the one that I think the measure politically expedient, and morally right? Would I not thus give up all footing upon constitution or law? Would I not thus be in the boundless field of absolutism?”

It might have satisfied many people (and more than a few today) if Lincoln had done nothing – had shinnied out on no limbs, taken no risks, and in general adopted the see-no-evil posture of a James Buchanan, condemning secession as unconstitutional but unable to see that he had any power to deal with it. I doubt whether they would have been satisfied with the probable results, though: the destruction of the Constitution and its government, the partition and Balkanization of the north American continent, the enfeeblement of democracy and the encouragement given to kings, kaisers and dictators the world around. Because these things did not happen, it is easier to pretend that Lincoln need not have taken the steps he did, or to bewail their presumably destructive effect on the Constitution (as though rebellion and secession were not the real destroyers). But mark the company that is kept by this complaint, because it is the same voice which argues that the Soviet Union was never a threat to the United States, that the spies of the 1950s exposed by the Venona decryptions were innocents, and that Islam is a “religion of peace.”

Nichols properly rejects this cynical baying at Lincoln. He fully understands that Lincoln was called to walk a narrow path through a dark cavern, conscious of a political abyss on the one side and a military abyss on the other. He could not allow himself to be pushed into either abyss, or into despotism. That he did not, finds its proof in the end of slavery in America and one hundred and fifty years of free government thereafter. It is hard to be cynical about such an achievement.

[1] Although this was itself made murkier still by the question of whether the Southern rebellion actually was a rebellion (to be suppressed as a domestic police action) or a war (between equal sovereign belligerents). If it was only a rebellion, there might be no need for Congress to declare a state of war in existence; but the scope of the Civil War very quickly forced Lincoln and Congress to conduct military affairs as though it was indeed a war (by imposing a blockade, initiating a prisoner-or-war cartel, and so forth).