The oldest emergency proclamation dates to the Carter Administration, 40 years ago. Two generations of crisis are enough.
This past week, I gave a talk (along with colleague Maimon Schwarzschild) on Abraham Lincoln at the San Diego Law Library as part of their exhibit on the former President. My talk was entitled “Lincoln: Slavery, Sovereignty, and Secession,” but unfortunately due to time constraints, it was mainly on slavery.
My main point about Lincoln is that his views on slavery were very “moderate” up until the point at which he issued the Emancipation Proclamation. As a matter of policy, Lincoln favored ending slavery, but he wanted such emancipation to be gradual, compensated, popularly enacted, and followed by colonization. In Lincoln’s defense, he believed that any stronger position would have been rejected by the American people and therefore this was the best that could be accomplished for the slaves.
By contrast, there were the abolitionists of the time – people who favored immediate emancipation of the slaves. The abolitionists included William Lloyd Garrison, who believed the Constitution was a deal with the slavemaster devil, and Lysander Spooner, who believed that the Constitution forbade slavery. But the groups associated with both of these men were considered extremists and represented only a small portion of the population.
As a matter of constitutional law, Lincoln believed that the Constitution allowed slavery in states that desired to have it and therefore did not allow the federal government to interfere with such slavery. But he did insist that the Constitution allowed Congress to forbid slavery in the territories. This was key to Lincoln, who believed that if slavery could be prohibited in the territories, the future states would be free ones. And this would put slavery on the defensive and make compensation for emancipation from the rest of the nation affordable.
Lincoln was extreme about his moderate position, drawing a line in the sand as to prohibiting slavery in the territories. For that reason, he strongly opposed the Dred Scott case (which would have made such prohibitions unconstitutional) and announced that he would not follow the case in future.
Ultimately, though, Lincoln ended up supporting immediate, uncompensated emancipation without colonization. The circumstances of the war changed everything. Lincoln could argue that emancipation was necessary for the war, an aim strongly supported in the North. And so the Great Emancipator was born, coming to the position only slowly and over time.