In my view, there is much to be said for an equal rights amendment that has a determinate meaning, but the revived ERA fails to do this.
On July 22, 1862 President Abraham Lincoln presented a plan to his cabinet to issue a proclamation emancipating slaves in all states that remained in rebellion as of January 1, 1863. At the urging of Secretary of State William Seward he decided to wait until the Union could claim a significant military victory before issuing the proclamation. After the battle of Antietam, on September 22, 1863, he issued his preliminary proclamation which gave the states in rebellion one hundred days to return to the Union or face the permanent loss of their slaves. On January 1, 1863, he followed through with that plan, issuing the final Emancipation Proclamation that declared:
[A]ll persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free….
On the one hundred and fiftieth anniversary of the Emancipation Proclamation it is fitting that we revisit the arguments surrounding it, not merely as an exercise in political piety, but also because the constitutional issues at stake in that controversy are so obviously relevant to contemporary American politics. These questions include: What are the appropriate boundaries between the power of the national government and the power of the states? What are the extent and limits of the constitutional authority of the president? Does an appeal to political necessity inevitably undercut our commitment to the principles of constitutional government? Finally, can we distinguish between legal and political decision-making?
Lincoln attempted to answer these questions in his defense of the Emancipation Proclamation, and I will argue that he did so in a coherent, prudent, and constitutional manner. Lincoln would not be surprised to know that his conclusions remain controversial, and we will see ample evidence of that controversy in the responses that follow, but what is truly impressive about Lincoln’s argument is how well he understood his critics, and the extent to which he took into account their criticisms.
Lincoln conceded most to his critics on the issue of the rights of the southern states under the Constitution. Lincoln always argued that his desire to end slavery must be tempered by his belief that the Constitution granted the national government no power to prohibit it in the southern states. Lincoln began his first inaugural by telling his audience that: “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” He goes on to quote the fugitive slave clause of the Constitution explaining that: “It is scarcely questioned that this provision was intended by those who made it for the reclaiming of what we call fugitive slaves; and the intention of the lawgiver is the law. All members of Congress swear their support to the whole Constitution—to this provision as much as to any other.”
Lincoln does not stop with a defense of the fugitive slave law; he goes even further supporting a proposed constitutional amendment that would forbid the federal government from ever interfering with the domestic institutions of a state, particularly with regard to persons held to service. He concluded that: “holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.” Thus Lincoln grants two of the most important constitutional claims of the southern slaveholders, a constitutional prohibition against interference of the federal government in the practice of slavery in the southern states, and the constitutional right of slaveholders to recover their escaped slaves.
Earlier, in 1854 he had argued that when southerners “remind us of their constitutional rights, I acknowledge them, not grudgingly, but fully, and fairly….” Writing to his friend Joshua Speed a year later, Lincoln’s tone was in fact grudging. He complained: “You ought rather to appreciate how much the great body of the Northern people do crucify their feelings, in order to maintain their loyalty to the constitution and the Union.” But whether “grudgingly” or “fully and fairly” Lincoln argued that the South was right to see the Constitution as providing protection for slavery in the states where it existed.
Lincoln differed from the southern defenders of states’ rights on only two significant points, the ability of the national government to limit the expansion of slavery in the territories, and the right of the states to secede from the union. But the Emancipation Proclamation freed no slaves in the territories, and whatever the merits or lack thereof of the arguments for secession, it is difficult to see the basis on which those who claimed to have legitimately left the Union could at the same time seek constitutional protection for the institution of slavery.
Lincoln himself, however, asserted that the states could not leave the Union, and if he were to remain consistent to that argument, he was still faced with the problem that he had no Constitutional authority to interfere with slavery in the states where it existed. Lincoln found a solution to that problem in the commander-in-chief power granted to him by the Constitution. Although Lincoln accepted the proposition that the Constitution contained at least implicit protections for southern slavery, he now argued that there was another constitutional provision that pushed him in the opposite direction. If emancipation was necessary for military success against those in rebellion, than it would be his duty to pursue it as commander-in-chief.
Recognizing the seeming conflict between two competing constitutional principles, Lincoln claimed that his duty as commander-in-chief took precedence. As he explained:
By general law, life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.”
For Lincoln the Constitution was not a mere list of rules that could be interpreted and applied in isolation from one another. Rights and powers would in certain circumstances conflict, and in those circumstances decisions must be made as to which provisions should take precedence. The rule of interpretation for Lincoln was which provision best defended the integrity of the document and the nation as a whole. It made no sense to Lincoln to suggest that an action necessary to the preservation of the nation could be prohibited by the Constitution.
In his often cited letter to Erastus Corning defending his suspension of the writ of habeas corpus, Lincoln explains why the powers of the president under the Constitution differ in times of rebellion and times of peace.
[T]he constitution is not in its application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security. The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one.
Lincoln had renewed and expanded his suspension of the writ of habeas corpus two days after he had issued his preliminary Emancipation Proclamation, and it is obvious that in his mind the two issues were linked. In both cases Lincoln maintained that the existence of a rebellion had a direct effect on the extent of his powers under the Constitution. Lincoln did not claim unlimited power, but in the face of a rebellion he argued that he could do what was necessary for the survival of the nation. If emancipation was necessary for the defense of the nation, to do less would be a violation of his duty as commander-in-chief.
Lincoln believed that the rebellion had turned the Constitutional tables on southern slavery. For Lincoln, and for many others, the most powerful argument for the continuation of slavery was the argument from political necessity. Jefferson had earlier declared that as a nation we had little choice in dealing with slavery. As he put it, “we have the wolf by the ear, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other.” In 1858 Lincoln offered a similar explanation of the founders’ concessions to slavery.
The argument of “Necessity” was the only argument [the founders] ever admitted in favor of slavery; and so far, and so far only as it carried them, did they ever go. They found the institution existing among us, which they could not help…. At the framing and adoption of the constitution, they forbore to so much as mention the word “slave” or “slavery” in the whole instrument. Necessity drove them so far, and farther, they would not go.
For Lincoln slavery may have been necessary, but it was never just. But unlike many abolitionists Lincoln recognized the claims of necessity must be given their due. If the framers had bowed to necessity and made concessions to slavery, those concessions must be honored, and if in the years that followed any move against slavery in the South was bound to threaten the Union, Lincoln thought that he had no choice but to yield to necessity.
Ironically, once the southern states seceded, they undercut one of the major arguments for restraint on the part of the northern states. The act of rebellion had eliminated the threat of rebellion as a reason for the North to accept the status quo regarding southern slavery. Nonetheless, Lincoln resisted the immediate calls for abolition. He reversed efforts by his generals to use the rebellion as a justification for emancipation, and as Horace Greeley complained even after Congress had passed the Second Confiscation Act which allowed Lincoln to emancipate all slaves belonging to rebels, Lincoln still refused to support emancipation. Lincoln defended his hesitation claiming that his
… paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause.
At the same time that Lincoln explained his reasons for inaction, he also laid the groundwork for his argument for emancipation. Emancipation, if necessary to the Union cause, would be constitutional.
Was emancipation necessary? As John Marshall observed in McCulloch v. Maryland the meaning of necessity is open to interpretation. Lincoln argued that emancipation would both deprive the South of a large part of its labor force and at the same time allow for recruitment of freed slaves by the Union army. More than a year after the proclamation took effect Lincoln declared that clearly no harm had been done by it.
On the contrary, it shows a gain of quite a hundred and thirty thousand soldiers, seamen, and laborers. These are palpable facts, about which, as facts, there can be no cavilling. We have the men; and we could not have had them without the measure.
And now let any Union man who complains of the measure, test himself by writing down in one line that he is for subduing the rebellion by force of arms; and in the next, that he is for taking these hundred and thirty thousand men from the Union side, and placing them where they would be but for the measure he condemns. If he can not face his case so stated, it is only because he cannot face the truth.
The idea of freeing slaves in exchange for military service was not new. In 1779 Alexander Hamilton wrote to John Jay regarding a proposal by Henry Laurens of South Carolina to raise two or three battalions of black troops to help fight the British. In return for their services they would be granted their freedom. Although this particular proposal went no further, similar proposals were adopted in several northern states. Responding to Madison’s contention that the powers of the national government were strictly enumerated Patrick Henry in the Virginia ratification debates predicted that the proposed constitution would be used to justify emancipation.
If they give power to the general government to provide for the general defence, the means must be commensurate to the end…. May Congress not say, that every black man must fight?… Slavery is detested. We feel its fatal effects—we deplore it with all the pity of humanity. Let all these considerations, at some future period, press with full force on the minds of Congress. Let that urbanity, which I trust will distinguish America, and the necessity of national defence,—let all these things operate on their minds; they will search that paper, and see if they have power of manumission. And have they not, sir? Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power?
Henry’s only mistake was to assume that it would be Congress rather than the president who would take such action.
Lincoln himself in 1861 had questioned the legitimacy of unilateral executive action, but in his preliminary proclamation issued September 22, 1862, Lincoln pointed to the Second Confiscation Act passed by Congress in March as support for emancipation. In the final proclamation, issued on January 1, 1863, however, Lincoln only claimed to act “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.” This justification avoided the problems of the limits of Congressional powers in relation to slavery.
This claim to military necessity was not without limits. Lincoln scrupulously defined the reach of his order to those states now in rebellion. Some complained that this was a mere political calculation, aimed at maintaining the support of the Border States, and Lincoln undoubtedly understood such a political calculation. But he also saw it as a way of establishing a clear line between what was and what was not within his power. Emancipating slaves in the states in rebellion served as a legitimate extension of his commander-in-chief powers, but those powers could not reach the practice of slavery in states that remained loyal to the Union.
Once the Union recognized southern slaves to be free, the reality of slaves fleeing into Union camps or being freed by Union soldiers, made it politically difficult to imagine that the old legal framework could be restored. Moreover, the existence of 130,000 black troops went a long way in discrediting any notion that slaves were not persons. The Border States (with much urging from Lincoln) recognized this reality and began to develop plans for emancipation, and Congressional action on an amendment to free all slaves might have seemed inevitable. Lincoln, however, did not wish to trust to historical inevitability. He wanted the 13th Amendment approved as soon as possible. Without it, he feared that the constitutional status of slavery might remain in doubt once the emergency had ended. The amendment, Lincoln hoped, would resolve any remaining conflict between the politics of emancipation and its constitutionality.
Some have argued that Lincoln’s commitment to abolition was either half-hearted or cynical. His goal was to preserve the union and centralize power in order to satisfy his personal ambition. Such assessments, however, dismiss too quickly the complexity of Lincoln’s arguments on slavery and the Constitution. In particular, they fail to appreciate Lincoln’s profound understanding of the relationship between necessity and principle in the practice of politics. Unlike abolitionists such as Garrison, Lincoln did not believe that he could act on abstract principle alone. One must recognize the limits imposed by political necessity. But even though our appeal to principles is limited, Lincoln also argued we have some ability to alter the shape of necessity. It is Lincoln’s belief in this possibility that explains his commitments to human freedom.