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outside artist
02-16-2006, 11:02 AM
My hubby was reading this book about Lincoln and he had a rather interesting question regarding the EP law. Since Lincoln is credited with having come up with the law, was it legal, considering that it is the job of the congress to make a lawand NOT the job of the President?

Freddy the Pig
02-16-2006, 11:12 AM
The EP wasn't a law, it was a proclamation grounded in Lincoln's power as Commander-in-Chief of the armed forces. In war army commanders have to dispose of enemy property in various ways--tearing up railroads, seizing grain used to feed enemy troops, and so forth. One of Lincoln's responsibilities as Commander-in-Chief was to establish guidelines for such seizure.

With the EP he ruled that slaves, by the nature of their enslavement, were property that would aid and abet the enemy cause, and that freeing them would help the Union armies. And so he proclaimed.

The proclamation was never tested in court, because it was superseded by the Thirteenth Amendment after the war.

Exapno Mapcase
02-16-2006, 11:16 AM
The Constitution does not make any provisions for what the law might be in states that have declared themselves seceded. During the Civil War, laws were made ad hoc and procedures followed as necessary, which sometimes meant that the southern states were treated as still being part of the union, sometimes as enemy nations, and sometimes as some weird combinations of the two.

The Emancipation Proclamation is best treated as a military order, part of the powers of the President as Commander-in-Chief. It applies only to those areas in which the northern armies had effective control and did not free any slaves in southern controlled areas. It therefore had it both ways at once.

After the war, the 13th Amendment freed all the slaves and made the matter legally moot.

Today the EP is retroactively considered as the first Executive Order (http://en.wikipedia.org/wiki/Executive_order). These are considered to have legal force equivalent to a Congressional bill, and may be overturned by Congress or the Supreme Court just like any other law.
To date, U.S. courts have overturned only two executive orders: the aforementioned Truman order, and a 1996 order issued by President Bill Clinton that attempted to prevent the U.S. government from contracting with organizations that had strikebreakers on the payroll. The Congress may overturn an executive order by passing legislation in conflict with it or by refusing to approve funding to enforce it. The president retains the power to veto such a decision; however, the Congress may override a veto with a two-thirds majority to end an executive order.

outside artist
02-16-2006, 11:24 AM
Thank you so much for those VERY helpful responses!

Sailboat
02-16-2006, 11:51 AM
applies only to those areas in which the northern armies had effective control and did not free any slaves in southern controlled areas. It therefore had it both ways at once.

Uh...unless I'm misunderstanding what you intend, I think you've got it backwards.

The EP came under heavy criticism precisely and specifically because it freed slaves in areas the government did not control and did NOT free them in many areas the government DID control.

I know it sounds counterintuitive to say that it freed slaves outside the areas under control -- but that was Lincoln's point in setting a deadline: if you stay outside the Union past this date, you will forever forfeit your slaves, assuming you eventually lose the war...so come back now.

See the Wikipedia article (http://en.wikipedia.org/wiki/Emancipation_Proclamation) for a starting point; permit me to select a few quotes for emphasis:

The Emancipation Proclamation was a declaration by United States President Abraham Lincoln announcing that all slaves in Confederate territory still in rebellion were freed. The Proclamation exempted slaveholding border states which had not seceded from the Union, and those states already under Union control.

Secretary of State William Seward commented on this by remarking, "We show our sympathy with slavery by emancipating slaves where we cannot reach them and holding them in bondage where we can set them free."

Had any seceding state rejoined the Union (or simply returned its congressmen to Washington) before it took effect, it would have been in the same position as the border states and could have kept slavery, at least temporarily (although Maryland, Missouri, Tennessee, and West Virginia all went on to abolish slavery by their own internal political processes even before the ratification in 1865 of the Constitution's 13th amendment which outlawed slavery uniformly throughout the entire nation).

So, if the effect was this limited, why was the EP universally regarded as the end of slavery? Various authors (Here I would recommend Shelby Foote and especially Bruce Catton) have pointed out that the slaves themselves seemed to know of the Proclamation very fast, and had no doubt about what it meant. In England and overseas, the governments might have rolled their eyes, but the people understood the EP to mean the end of slavery.

It was just a case of the deed being greater than the actual legal details, really. The great hope of the world's unfree people, the American experiment, had for the first time officially signaled that it was willing to take the step it had never before dared to take, and put the rights of human beings above formerly sacred property rights.

Perhaps Governor John Andrew of Massachusetts summed it up best when he famously declared it "a poor Document, but a mighty Act."

Sailboat

David Simmons
02-16-2006, 12:05 PM
Uh...unless I'm misunderstanding what you intend, I think you've got it backwards.

The EP came under heavy criticism precisely and specifically because it freed slaves in areas the government did not control and did NOT free them in many areas the government DID control.Yes. It appears that Lincoln did not believe he had the legal power to free slaves in the United States, and he was probably right. However he did have the authority as Commander in Chief to make military rules affecting those with whom the the US was at war.

633squadron
02-16-2006, 12:28 PM
Perhaps Governor John Andrew of Massachusetts summed it up best when he famously declared it "a poor Document, but a mighty Act."

Ordinary people consistently underestimate or ignore Lincoln's political brillance and genius. The EP was a profoundly political act from a leader who was one of this country's top 2 or 3 politicians of all time, in the precise and non-judgemental definition of the term "politician".

Lincoln campaigned for the presidency and against secession not because of slavery but because of Union. By doing that he separated himself from the vast majority of Republicans who, like Seward and Staunton, were vocally anti-slavery. Lincoln did this because he understood that emancipation/abolition was politically impossible in that time, and that campaigning for it or advancing it as a cause would not succeed.

They say that politics is the art of the possible, and Lincoln more than anyone else understood this.

When the Southern states seceded, Lincoln resisted any statement about emancipation in regard to the war, insisting that it was a war to preserve the Union against an illegal act. He put himself on shaky legal ground there; the Constitution doesn't seem to forbid a state from leaving. He realized, though, that preservation of the Union would "do the trick" in the North and in wavering border states.

The Emancipation Proclamation is more odd than we might imagine. Lincoln had been under pressure to declare against slavery before, and resisted. He was not under any obligation to proclaim abolition or emancipation, and when he issued the proclamation he certainly didn't have a lot of confidence that the North would win the war.

I think he did it because he saw that the war would be long and hard, and that "union" was less of a noble issue than slavery. Over time, that is, he built up the political support to abolish slavery, he sensed that the waverers and border states had made up their minds (one way or the other), and that he could proceed to cement the support he had.

Still, he remained political. He issued a proclamation that didn't accomplish much in real terms but sounded good and established freedom as one of the key Northern issues. It was a great way to take the moral high ground without having to promise anything he couldn't deliver. A truly political statement, cunning and perceptive and effective.

I think we live in a world in which people denigrate "politics", viewing the political process as dirty, ineffective, and hypocritical. We seem to want everything to be black and white, without compromise or negotiation. I daresay it is the classic Hegelian/"Communist" view of a struggle between viewpoints in which one must defeat the other.

I don't think such an attitude to law or governance accomplishes anything. The real result of a struggle is stalemate, inactivity, and the same stuff over and over again. We want government to respond to our needs, but we're unwilling to compromise over those needs, and so nothing happens.

Thankfully, Lincoln understood politics differently.

Martin Hyde
02-16-2006, 12:37 PM
The EP came under heavy criticism precisely and specifically because it freed slaves in areas the government did not control and did NOT free them in many areas the government DID control.

Lincoln wasn't certain he had the legal authority to free slaves in states that were not in rebellion/border states, and he also had the practical fear of doing so because he did not want the rebellion to spread.

It should be noted however that when the EP took effect on January 1, 1863 it affected most of the confederacy and as the Union methodically took back confederate lands it resulted in the freeing of thousands upon thousands of slaves. The only areas of the confederacy not affected were Tennessee which was under union control, a few counties in Virginia under union control, and a few areas in Louisiana under union control.

It should be noted though that in many of these Confederate areas conquered by union forces, union forces had already freed slaves prior to the EP. Eventually it was ordered that union troops not do this, but once done it wasn't something easily undone, and eventually it was clearly stated that union troops would not be returning fugitive slaves. So in many areas already under union control slaves were able to escape in the confusion of war without any realistic chance of being reapprehended.

There were also other emancipation efforts within the union and within already-conquered territory. For example the government agreed to pay slaveholders to emancipate their slaves willingly.

Exapno Mapcase
02-16-2006, 01:11 PM
Yes, the Proclamation's text applied to the states and areas in rebellion. And it most certainly was a political document, since the President had absolutely no way of enforcing it.

By issuing the Proclamation, Lincoln was asserting that he was President of the entire country, including those areas in rebellion. However, he had no constitutional power to free any slaves if this were true: he could not unilaterally override state law. So the Proclamation is a logical paradox: it applies only if it doesn't apply.

How best to read it then? My take is that it must be considered a military order, enforceable only by the military in areas in which martial law had been legally established; i.e. in areas in which the northern armies had taken control. As a practical matter, therefore, slaves were freed area by area as the northern armies took posession of those areas. The slaves certainly understood this, and so did the southerners.

Again, this is all post hoc reasoning. At the time, while some people were certainly loudly furious about the steps that Lincoln and the Congress took to wage war, the rule book was thrown out the window until the war's end. After 1865 the Supreme Court did make some rulings about the legality of the war but most issues were left for the history books to decide.

brianmelendez
02-16-2006, 01:14 PM
Today the EP is retroactively considered as the first Executive Order (http://en.wikipedia.org/wiki/Executive_order). These are considered to have legal force equivalent to a Congressional bill, and may be overturned by Congress or the Supreme Court just like any other law.Just to be clear (I know that Exapno already knows this stuff):

An executive order, just like any executive-branch regulation, has the force of law. The order is subordinate to statute -- that is, the order cannot conflict with any existing statute when it is promulgated, and yields to any subsequently enacted statute to the extent of any inconsistency between them. And the President can promulgate an executive order only within the scope of his or her constitutional or statutory authority -- that is, either the Constitution or a statute must confer upon the President the authority that he or she is exercising by means of the executive order. As Freddy the Pig and others have pointed out, the Emancipation Proclamation -- retroactively styled as Executive Order No. 1 -- was grounded in the Presient's constitutional authority as Commander in Chief.

The executive branch can also make policy by regulation. A regulation is similar in many respects to an executive order: it is subordinate to statute, and must fall within the promulgating agency's statutorily conferred rulemaking authority. But unlike an executive order, most regulations are made by some officer or agency within the executive branch, rather than by the President directly. Most regulations are also subject to certain administrative procedures that often require notice and a public hearing before the regulation can take effect.