Was the Emancipation Proclamation unconstitutional?
Please note that this question is being posted only as a topic for a debate. No matter what conclusions one derives, the answer is moot. The subsequent 13th Amendment clearly outlawed slavery in all of the United States and its territories and Section 4 the 14th Amendment states that any claim for the loss or emancipation of any slave is void.
Perhaps. The Emancipation Proclamation only freed those slaves in those states that succeeded with some exceptions. The claimed authority by Lincoln was, “I, Abraham Lincoln, President of the United States, 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.”
So he was claiming war powers. Certainly during war the powers of the President at expanded. So who knows.
The slaves were, legally, the property of the slave owners.
The United States was at war with the Confederacy.
A nation may, in the course of prosecuting a war, deprive its enemies of property without compensating them for it.
Therefore, depriving the southern states of its slaves was (legally) no different than raiding a supply depot and making off with bundles of rations and ammunition.
Which is why its application was so carefully drawn to apply to only those states, or parts of states, which were in active rebellion. For example, not all of Louisiana was covered. The areas of Louisiana which were under Union control were carefully listed and excluded from the effects of the Proclamation, because Lincoln took the view that his war powers could not extend to territory that was no longer in active rebellion.
What the government can do during war is different from what the government can do during peacetime. That comes from multiple rulings of the Supreme Court.
The Court never took up the EP, but that was mostly because it did not free slaves generally but limited itself to states within military control during a rebellion. That wasn’t an accident; the limitation was deliberately contrived to pass the Court. The Court did slap down other oversteps by Lincoln. That might be an indication that nobody thought the EP was likely to lose. We’ll never know for certain, but the probabilities are that it was well crafted to do its job legally.
If we believe, as you seem to suggest, that the CSA seceded and became an independent sovereign nation that was “at war” with the United States, then you’re obviously right. There should be no constitutional implications for depriving foreign nationals of their property on foreign territory during times of war.
Of course, that premise is somewhat at odds with what the federal government thought it was doing and how the dominant historical narrative has viewed the conflict.
A civil war does not amount to a recognition of sovereignty of the opposing side.
The term “civil war” is somewhat a misnomer for what is commonly called the American Civil War. However, if what Falchion and Northern_Piper have already suggested is true, i.e. that the Union government did not recognize the C.S.A. a sovereign nation, then in theory at least, noncombatants in the southern states that did not participate in the war or the secessionist governments were still entitled to the protections of the U.S. constitution.
I do not believe that and I am not suggesting that.
This really plays into the Lost Cause narrative that the Confederate States of American were their own soverign nation which just isn’t the case. During the entirety of the war, Jefferson Davis, Robert E. Lee, and Stonewall Jackson were still citizens of the United States and entitled to due process under the law. See Lee vs. United States in 1874 where the US Supreme Court returned the land seized by the government for use as a soldier’s cemetery from the Lee family without due process.
The Emancipation Proclamation was unchallenged for two reasons: The only areas if affected where in open rebellion against the government. It’s tough to sue when you’re in open rebellion. And of course the 13th Amendment was ratified in 1865. So even if Southerners decided to sue for compensation it was a moot point, the US Constitution had been amended.
The South was in a quasi-legal state that the government treated as a rebellion. A rebellion was a recognized possibility, as given in Article 1, Section 9 of the Constitution.
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.
Treason was also defined in the Constitution, most relevantly in Article 3, Section 3.
Section 3
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
Secession is not mentioned at all.
What the government could do in cases of rebellion or treason or secession was not as explicitly written out. Treason by an individual was punishable, but treason by a state was not. Clearly the government had some powers to act, but in practical reality Lincoln had to make them all up on the fly.
Those choices rode a fine line. Lincoln acted as if the government was fighting another sovereign entity while maintaining the pretense that it was putting down a local rebellion. People who make comments on the legality of so doing are pulling opinions out of their … hat. The courts in the North mostly accepted all the decisions made - they would have been crazy not to, but they looked away the majority of the time. After the war, a famous decision called Ex parte Milligan established that the government could not use extraordinary powers in areas that were not in active rebellion.
Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offense, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power.
This may look as if it can be retroactively applied to the EP. But the text adroitly sidesteps that.
"That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all 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; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.
“That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States.”
The EP is a military declaration rather than a civic one and it limits itself to areas in a state of rebellion, a distinction also made by Ex parte Milligan.
The status of the CSA has never been legally clarified, to my knowledge. Everybody then and later just agreed to let the past be past, settled, as the adage has it, by Grant v. Lee. You are therefore free to take any legal position on the theoretical fine points and nobody can definitely refute them. However, that means that you can’t defend them either. The only correct answer is, nobody knows and nobody ever will.
And that wording is important. Treason is defined as citizens levying war against the United States. War need not be defined as a conflict between two sovereign nations.
Since the American Revolution started out as a treasonous rebellion not occurring between two sovereign countries, I’m pretty sure the founders were aware of the distinction. And so were the founders of the CSA who talked about this at all times when they weren’t defending their right to own slaves.
Of course not. But, it’s peculiar (incoherent, really) to say that the nation itself is “at war” with one side of a civil war.
But still, take the proposition and apply it to a “rebellion”: The government may, in the course of exercising its law enforcement obligations, deprive it citizens of property without compensating them for it.
I think that we would recognize that this is a problematic proposition – especially when blanket applied to people who simply reside in areas where the criminal activity is taking place and without any individualized assessment of liability for said activity.
And the entirety of tens of thousands of years of conflicts in human history agrees that this is sad, and that not a fucking thing can be done about it.
This ignores the concept of states as sovereign entities. Entire states decided to secede, which meant the entire state was in a… state… of rebellion.
No. Entire states did not secede. Certain politicians, even I’ll grant with majority support in many cases, unlawfully voted to secede, but they had no right to and to the extent they rebelled individually, so too with others: treason and rebellion were individual acts performed by individuals, though often conspiring together and while seeking to usurp state powers to their own unlawful ends, not the act of states under the constitution and all such acts purported as state acts that were done in furtherance of rebellion were in fact null and void. Many in he south remained unionists, and those outspoken about it often suffered mightily for it. That said, I don’t know that that would make depriving such people of… I won’t even say it. I don’t think freeing humans from being held as slaves could ever be unconstitutional. I don’t not consider such people property, and I think the Constitution should be read (whether it ever was intended to be or not) as recognizing the right of such people to be free. The only way to read the Constitution otherwise is to give a bunch of racist people who thought they could own other people just because they didn’t recognize them as people control over the dictionary.
I could only craft an argument to recognize the Emancipation Proclamation as unconstitutional if I granted the frankly outrageous premise that people purportedly owned as property by southerners in rebel states actually were property.
And I do not grant that. I’d sooner make an argument that the Emancipation Proclamation was moot from its inception (because the people it sought to free, and even those is it didn’t seek to free outside rebel areas, were already free under the law, the lawmakers just didn’t realize it yet).
I do not grant that slavery was every permissible under the Constitution, because I do not grant that we should give primacy to the founders when it comes to their erroneous beliefs in the equal humanity and personhood of non-white humans to white humans.
This is the proper moral conclusion, but has no basis in historical fact. Prior to the 13th Amendment, the United States government recognized that slaves were property.
Part of the horror of antebellum slavery is the fact that it was perfectly legal. Slaveowners weren’t rogue agents acting against the constitution - they were law-abiding citizens enjoying the fruits of an unjust system. Rejecting that out of hand has no value but to diminish that horror.
It absolutely, explicitly was.
Would the Emancipation Proclamation be considered an early example of what we today call an executive order?