Greetings,

This week we put a special focus on the Emancipation Proclamation, in its context and meaning for its time and beyond.

Critics of Lincoln then and now point out that when the war began slavery, or ending slavery, was not seen as a motivating factor in the conflict.  In an immediate and particular context in 1860-61, this was undoubtedly true.  Before Lincoln even took office several Southern states seceded, but many (VA, NC, AR, TN, KN, MD) had not.  Lincoln believed he needed to stop the bleeding as quickly as possible.  To make the war about slavery might have driven every slave state out of the Union and made reunification impossible.

But very soon after the war started events began to take over and push policy in a different direction.  Slaves ran away and took shelter with Union forces.  England might recognize the Confederacy if the war had nothing to do with slavery.  If it did, Lincoln knew that England could never go against a country trying to end slavery when they themselves had already abolished the slave trade.  By 1862, Lincoln thought the time had come to make slavery an official issue of the war.

Historians have their fashions just as any other discipline, and opinion has swayed back and forth on Lincoln’s actions and motivations surrounding his famous Proclamation.

Most of us grew up with the idea of Lincoln as the “Great Emancipator” who freed the slaves with the Emancipation.  In this view, Lincoln gets the lions share of credit for ending a great stain upon our democracy, culture, and so on.

More recently, however, scholarship has shifted.  Many critics, both from the “Long live the South” community and African-American scholars have pointed out that:

• Technically, the Emancipation freed no slaves, since the only slaves that Lincoln freed were slaves in areas in rebellion — areas he did not control.  Slavery in the border states loyal to the Union remained untouched.
• Some African-American scholars have argued that slaves had begun to liberate themselves by leaving plantations, finding Union armies, etc. long before the Emancipation Proclamation.  Thus, Lincoln only added window dressing to an already existing reality.  He jumped on the band-wagon and got credit he did not deserve.
• Some constitutional scholars argue that Lincoln had no authority to end slavery by executive fiat.  The Constitution did not forbid slavery, therefore at the very least Congress would have to make a law regarding slavery, or more likely, a Constitutional amendment would be needed.

With these two extreme points on the pendulum, others have come down somewhere in the middle.  The Emancipation Proclamation, they argue, had no technical legal authority, and in this sense made no difference.  But the Emancipation did accomplish other things, i.e.

• It freed no slaves but did transform the war into a war of liberation, giving extra moral impetus to Union armies.
• It sent a clear message to England (who had at times seriously considered recognizing the Confederacy) that the war would now be about slavery, and England (having banned slavery and the slave trade themselves) could not now easily side against a country trying to end slavery in their own territory.
• It did not start slaves freeing themselves, but it gave active encouragement to other slaves who may not have considered it otherwise.  Not only that, the Emancipation guaranteed slaves legal protection from Union armies.
• While slaves in the border states could keep their slavery, Lincoln’s message surely implied slavery’s eventual demise across the nation.

But this “middle ground” position still leaves open the question of Lincoln and the Constitution.

Lincoln believed that he had a right and a duty to defend Constitutional democracy.  History told him that wars and democracies do not always mix well.  Athenian democracy destroyed itself in the Peloponnesian War.  Many believe that Rome’s many wars brought down its Republic.  Machiavelli praised Rome for at least making the possibility of a temporary dictatorship a provision of its constitution, as it seemed better to do something drastic by law than otherwise.  But even this did not save them from the Emperors.  French Revolutionary democracy quickly turned into Napoleonic dictatorship.  Lincoln himself knew that some of his generals, like George McClellan, contemplated the possibility of military dictatorship.  Today we think of Lincoln as a strong war leader but many at the time saw him as weak, bumbling, inexperienced.  We can’t sit back comfortably this side of history and tell Lincoln, “There, there, it will be alright.”

Lincoln’s perception of the danger of dictatorship led him to embrace occasionally aggressive measures, and a “generous” reading of the Constitution.  The Constitution does allow for the suspension of habeus corpus, for example.  Article I, Section 9 reads,

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

This seems straightforward, but this clause is part of the section on the legislative branch of government, not the executive.  Of course, the Constitution does not explicitly forbid presidents from suspending the right themselves, but it could be said to imply it.  In fairness, Confederate president Jefferson Davis also suspended habeas corpus, but the fact that he receives less criticism than Lincoln is probably fair.  We did not, after all, build a hagiographic memorial to Jefferson Davis.