# Was the Emancipation Proclamation Unconstitutional? **URL:** \ **Category:** Great Debates\ **Created:** [June 16, 2022, 12:17am UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269 "2022-06-16T00:17:37Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![Mighty\_Mouse](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mighty_mouse/32/7776_2.png) [@Mighty\_Mouse](https://boards.straightdope.com/u/Mighty_Mouse)\ **Post date:** [June 20, 2022, 12:58am UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/101 "2022-06-20T00:58:15Z")
> [@ASL\_v2.0](#): > > You would apparently prefer I view history through the lens of the oppressor, as if enslaved African Americans truly were property just because ignorant racists of their age said they were. No matter how much you dance and shake, “property” is an artifact of law and society. It has no existence in nature. Trying to go back and sanitize the shitty foundations of the country is disingenuous or delusional. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [June 20, 2022, 1:02am UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/102 "2022-06-20T01:02:04Z")
I’m not trying to sanitize. I recognize that people viewed and treated slaves as property. I just do not grant that the victims of their oppression truly were property. They, the enslaved, had rights that were violated. They deserved remuneration, and by and large they never got it. However, if you continue to accept that they were property just because ignorant racists felt entitled to treat them as such, then I guess these enslaved persons had no rights until such time as they were duly freed (if ever) by act of law (eta: or executive proclamation!), right? ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [June 20, 2022, 1:03am UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/103 "2022-06-20T01:03:13Z")
This–property can literally be anything society says it is. Failure to recognize that is silly. > [@ASL\_v2.0](#): > > However, if you continue to accept that they were property just because ignorant racists felt entitled to treat them as such, then I guess these enslaved persons had not rights until such time as they were duly freed (if ever) by act of law, right? Society defines what property is, not some higher moral law. If a society declares people can be property they can be within that society. It would mean that’s a society I would say acts in an immoral fashion, but many societies act immorally. ---
**Author:** ![Ynnad](https://avatars.discourse-cdn.com/v4/letter/y/4491bb/32.png) [@Ynnad](https://boards.straightdope.com/u/Ynnad)\ **Post date:** [June 20, 2022, 1:17am UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/104 "2022-06-20T01:17:16Z")
Several posters have mentioned the “war powers” of the President. The constitution only gives the President the authority to act as the Commander in Chief. All of the other war powers explicitly mentioned are given to Congress. One of those powers given to Congress that might be relevant to this debate is “to make Rules concerning Captures on Land and Water.” The idea of the President having extraordinary war powers is mostly a 20th century phenomenon. It eventually culminated in the War Powers Resolution of 1973 (commonly called the War Powers Act). I see that no one has cited the case of _Korematsu v. United States_ , 323 U.S. 214 (1944) (holding that the internment of Americans of Japanese ancestry was constitutional) to support the position that the Emancipation Proclamation was constitutional. In _Korematsu_ the court reasoned that the internment did not violate the constitution due to the “military urgency of the situation.” There is still some debate as to whether or not the opinion in _Trump v. Hawaii_, 585 U.S. \_\_\_ (2018) explicitly overruled _Korematsu_ or merely repudiated it. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [June 20, 2022, 1:22am UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/105 "2022-06-20T01:22:07Z")
> [@Ynnad](#): > > There is still some debate as to whether or not the opinion in _Trump v. Hawaii_, 585 U.S. \_\_\_ (2018) explicitly overruled _Korematsu_ or merely repudiated it. I think the repudiation of _Korematsu_ in _Trump v. Hawaii_ was the judicial equivalent of “I’m not a racist, but…” As in “Of course we’re not following in the footsteps of _Korematsu_, everyone knows _that_ was wrong, but… [we’re going to go ahead and uphold this racist executive order from the Trump administration].” I find it not at all heartening. The spirit of _Korematsu_ was alive and well in the subtext of _Trump v. Hawaii_’s holding, protestations to the contrary be damned. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [June 20, 2022, 2:09am UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/106 "2022-06-20T02:09:19Z")
> [@ASL\_v2.0](#): > > The same part that forbade the enslavement of white people. Because the Constitution, with regard to slavery, depended a lot on nuance and current practice and “everyone knows what we mean.”. Of course whites could not be enslaved because they couldn’t be. Here is the real question, could free blacks be legally kidnapped and enslaved? Because many were and the Taney Court punted on that question in the Dred Scott decision. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 20, 2022, 2:24am UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/107 "2022-06-20T02:24:55Z")
> [@ASL\_v2.0](#): > > these enslaved persons had no rights until such time as they were duly freed (if ever) by act of law (eta: or executive proclamation!), right? Right! By George, he’s got it! We can close the thread now. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [June 20, 2022, 2:25am UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/108 "2022-06-20T02:25:17Z")
Again–whites could be enslaved. The 1788 constitution has no prohibition on this. Now, that being said if some state, in wide contradiction to the norm in the other states, started practicing widespread white slavery, I do “suspect something would have been done.” Potentially they would have not let that state in the country to begin with or something, it’s really hard to guess. But no, the constitution in 1788 did not prevent white slavery. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [June 20, 2022, 2:46am UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/109 "2022-06-20T02:46:38Z")
> [@Exapno\_Mapcase](#): > > Right! By George, he’s got it! We can close the thread now. Congratulations. You agree with the enslavers. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 20, 2022, 3:16am UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/110 "2022-06-20T03:16:08Z")
I agree with reality. Reality is not the same thing as morality or law. Those I can often disagree with. But reality is inarguable. To confuse reality with the way you wish the world would work is literal madness. ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [June 20, 2022, 2:27pm UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/111 "2022-06-20T14:27:40Z")
@ASL_v2.0 The constitution was written by white supremacist enslavers. You seem to assume that the Constitution is some kind of perfect document, transcending the racist men who wrote it. It isn’t. It is a product of the people who made it. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [June 20, 2022, 2:31pm UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/112 "2022-06-20T14:31:00Z")
> [@Babale](#): > > You seem to assume that the Constitution is some kind of perfect document, transcending the racist men who wrote it. It isn’t. It is a product of the people who made it. I don’t assume anything. I am merely reframing the question of how we divine founders’ intent, which seems to matter a whole lot to present day white supremacists. Did founders intend to allow for the enslavement of black people because they were black, or did they intend to allow for the enslavement of black people because as a class they were deemed the inferiors of white people (an error of fact to which we owe the founders no deference at all)? ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [June 20, 2022, 2:37pm UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/113 "2022-06-20T14:37:29Z")
> [@ASL\_v2.0](#): > > Which was basically the same rationale used in Dred Scott when deciding that the descendants of slaves could not be citizens of any state ever under the Constitution. Because even though the Constitution said nothing of the sort, the Founders must have “considered it obvious” (or so went the Court’s reasoning). It’s the argument that you yourself are making. You think it was “obvious” that the Constitution prohibits white slavery, even though it doesn’t actually say so, and then arguing that that nonexistent but obvious section also applies to blacks. It’s not the argument used by Dred Scott, which didn’t decide what you claimed it did: Dred Scott was decided by the fact that the Constitution, by the words that are actually present in it, considered slavery to be permissible. ---
**Author:** ![Mighty\_Mouse](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mighty_mouse/32/7776_2.png) [@Mighty\_Mouse](https://boards.straightdope.com/u/Mighty_Mouse)\ **Post date:** [June 20, 2022, 2:39pm UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/114 "2022-06-20T14:39:59Z")
> [@ASL\_v2.0](#): > > which seems to matter a whole lot to present day white supremacists. Try starting your thinking process by not giving any deference to present day white supremacists. This is what is bugging the hell out of the rest of us (or most of us, some are no doubt grateful). Trying to play semantic games with the constitution and the drafters original intent in order to undercut the logic of bigots is a losing game. ---
**Author:** ![DeadTreasSecretaries](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/deadtreassecretaries/32/4817_2.png) [@DeadTreasSecretaries](https://boards.straightdope.com/u/DeadTreasSecretaries)\ **Post date:** [June 20, 2022, 2:41pm UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/115 "2022-06-20T14:41:20Z")
In fairness Dred Scott did directly reference a view that the races didn’t have equal rights in their opinion. But otherwise you’re basically right that the constitutional basis individual rights weren’t protected the way they are now and slavery regardless of race was allowed. ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [June 20, 2022, 2:47pm UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/116 "2022-06-20T14:47:44Z")
> [@ASL\_v2.0](#): > > Did founders intend to allow for the enslavement of black people because they were black Yes > [@ASL\_v2.0](#): > > did they intend to allow for the enslavement of black people because as a class they were deemed the inferiors of white people Yes > [@ASL\_v2.0](#): > > an error of fact to which we owe the founders no deference at all We don’t owe them deference on anything. They’re dead, they don’t get a say. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [June 20, 2022, 2:48pm UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/117 "2022-06-20T14:48:19Z")
> [@Babale](#): > > We don’t owe them deference on anything. They’re dead, they don’t get a say. I wish the federal courts would agree with you. I’m not saying they shouldn’t, I’m just saying they tend not to. ---
**Author:** ![DeadTreasSecretaries](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/deadtreassecretaries/32/4817_2.png) [@DeadTreasSecretaries](https://boards.straightdope.com/u/DeadTreasSecretaries)\ **Post date:** [June 20, 2022, 3:03pm UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/118 "2022-06-20T15:03:44Z")
Is your point that some sort of legal reasoning that is at times used by the court be be construed to say that slavery was never constitutional or that slavery actually was never constitutional? ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [June 20, 2022, 3:11pm UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/119 "2022-06-20T15:11:17Z")
> [@ASL\_v2.0](#): > > > [@Babale](#): > > > > We don’t owe them deference on anything. They’re dead, they don’t get a say. > > I wish the federal courts would agree with you. I’m not saying they shouldn’t, I’m just saying they tend not to They DO agree with me. George Washington cannot hold office, vote, or have any representation in congress. Now, the fact that millions of American citizens who DO have political power by virtue of being actual living Americans worship the Founding Fathers like demigods rather than soberly weighing their pros and cons? THAT is certainly a problem. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [June 20, 2022, 3:34pm UTC](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269/120 "2022-06-20T15:34:33Z")
> [@DeadTreasSecretaries](#): > > Is your point that some sort of legal reasoning that is at times used by the court be be construed to say that slavery was never constitutional or that slavery actually was never constitutional? I guess I am driving at a couple different points: 1. Most a propos to this thread, I don’t feel compelled to adopt the language of racists. Which is ironic, because as I craft my legal/constitutional argument for why I don’t need to grant that slaves were in fact property, even if they were viewed as property by the racists of their age, I am accused of caring too much about the intent of racists. Like… I say “No, these were people who were oppressed and their labor usurped. The mere fact that racists called them property did not make them property.” …and somehow I’m the one who cares too much about what racists think (as opposed to what appears to be a very prevalent contrary opinion: “Racists called them property, therefore they were property!”). 2. There is an argument to be made that founders’ intent shouldn’t matter a whole lot in interpreting the Constitution. I am sympathetic to that view for a number of reasons, not least of which is that the founders were by and large a bunch of ignorant racists and I do detest having to give too much weight to the opinions of a bunch of ignorant racists. But, unfortunately, that is not the constitutional paradigm we find ourselves in. Jurists, and particularly the sort of jurists that get appointed by conservatives and fascists, seem to think founders’ intent should be given great weight on constitutional questions. So while the slavery question is (thankfully) moot, there remain other matters in controversy where this question of how exactly to divine founders’ intent is relevant. For instance… would the founders have recognized a well-established or fundamental right to have an abortion? Well, if you put the question to them like that, then probably not. Much as if you were to put the question to them “Does the Constitution protect the right of black people to be free from enslavement?” the answer from the founders (most of them, anyway) would almost certainly be no. But what if you put the question to them as “Does the Constitution protect the right of white men and their equals to be free?” What would they say then? And in comparison, if you put the question to them as “Is there a well-established right to bodily autonomy, to have one’s person be free from state interference in intimate matters such as what one’s body can be used for, absent a very strong prevailing state interest to the contrary?” And suddenly the answer becomes a lot less obvious than the question of abortion. But that’s just an example. The point is, I don’t think it’s necessary to concede on questions of basic freedom and liberty just because we seem to have lost the fight over whether founders’ intent matters. Even if founders’ intent _does_ matter (to the courts), I don’t think it’s so cut and dry as “The founders intended for black people to be property according to the whims of a slave master” or “The founders recognized no right at all to terminate a pregnancy short of giving birth.” If you ask the wrong questions, it may seem that cut and dry, but if you can reframe the question to call for different answers, suddenly freedom and liberty stand half a chance. Maybe. [Previous page](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269.md?page=5) [Next page](https://boards.straightdope.com/t/was-the-emancipation-proclamation-unconstitutional/966269.md?page=7)