I think that there’s a fine line that @ASL_v2.0 is walking here, but I do think that the line is walkable. The Constitution recognized that people could be property… but property of whom? One could hold that people are property, but that, absent any transfer of ownership, they are the property of themselves. By this argument, a person could sell themself into slavery (with the proceeds going to their family or some other third party), and so be a legally-held slave, but any person who did not do so (i.e., the vast majority and possibly all of the slaves in the antebellum South) was not legally a slave.
By this argument, emancipation of slaves was not theft of property, but liberation of already-stolen property.
And it would of course be a way to sabotage the economy of the rebelling regions, a legit war strategy. Liberate slaves, bust dams… ain’t humanity grand.
Actually not! The Emancipation Proclamation was a Presidential Proclamation, which are a distinct type of Presidential directive from an executive order. The primary distinction is that an Executive Order is an “order to the government”, basically “I’m the President, and you, Federal government agency / employees, work for me, and here is an order I am giving you as your boss.” A Presidential Proclamation applies to society or even other nations more broadly. It is essentially saying “I am the President of the United States, vested with various powers pursuant to that office, and I proclaim this thing.” How much weight “this thing” has, is constitutionally complicated and varies considerably based on what is being proclaimed, and on what executive power basis such a proclamation can be supported.
Many, many Presidential Proclamations are actually “puffery”, i.e. “I proclaim that John Glenn was a swell dude and we should appreciate his years of service.” Or “I proclaim that the United States views St. Vincent and the Grenadines favorably.” The Emancipation Proclamation, of course, is far more meaningful.
In Federal record keeping, numbered Presidential Proclamations are tracked separately than numbered Executive Orders.
Historical fact, though, is precisely what is at issue. My position is simply that to the extent our slaveholding founders did not consider chattel slavery as practiced in the US (along allegedly racial lines) to be repugnant to the Constitution, that is the case only to the extent they grounded their ignorant and racist beliefs in errors of fact. That is, they could countenance slavery as a permissible institution under the Constitution because they were possessed of the erroneous belief that people of recent African ancestry were a biologically distinct race from themselves (white folk) and so were not properly considered “men” or people" or “persons” or what have you. To the extent “men,” “people,” or “persons” were legally significant terms, black people were excluded from those categories purely on the basis of certain errors in fact which I would like to think most of us would now see.
My position might best be stated thusly: I consider the antebellum Constitution, according to the facts as we know them now, to have countenanced the enslavement of people of african ancestry and their offspring to exactly the same extent as it countenanced the enslavement of White Anglo-Saxon Protestants. Exactly the same extent. If you think there is an argument (and maybe there is?) that WASP-slavery (keeping in mind that slavery here means not only is the first generation enslaved, but all of their ancestors) would not have been considered repugnant to the Constitution under the founders, then i suppose there is likewise an equivalent argument that the enslavement of Africans and their descendants in the US was not repugnant to the Constitution, even in light of our present understanding of the facts.
But I don’t think the US Constitution ever countenanced WASP chattel slavery. So I don’t think it could really accommodate African slavery either. The authors of the Constitution might have been able to countenance it, but only because they were at best ignorant racists.
Really? Where? I mean, I’ll grant there are certain passages that help establish that the authors of the Constitution were possessed of certain errors of fact, but “strongly implied” is so far short of “explicit” that no less a personage than Fredrick Douglass himself made an argument that all of those allegedly pro-slavery passages were actually pro-freedom.
But to be clear, that’s not the argument I’m making. I’m not arguing that the Constitution countenanced slavery on the one hand, but then also preferred abolition and even implicitly allowed for abolition on the other hand, as Douglass argued. I am arguing that slavery was only ever countenanced to the extent that certain humans–seen today as equal–were then seen as biologically and morally inferior, to the extent that it was acceptable to create a separate legal class for them. Whether or not the Constitution explicitly allowed such a classification, we now know that there is no basis in fact on which to group people into such a classification. So even if the category of “these lesser people and their descendants can be enslaved” had not been abolished by the 13th amendment, I would argue–I am arguing–that that category must be devoid of actual people as no such lesser person exists in fact. Full stop.
ETA: And to bring it back around to the OP, that means the Emancipation Proclamation was not so much unconstitutional as moot, even prior to the 13th amendment, as it was premised on those same errors in fact. The erroneous belief that there was a lesser form of man out there, biologically and morally distinct to the point that they could exist in a separate legal class that could be owned as property, without such ownership being repugnant to the Constitution. I say no such class exists, or ever has existed, whether or not the authors of the Constitution believed it to be so. The enslavement of people of recent African ancestry was only ever the usurpation of the rights and labor of free human beings.
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.
Cite? I mean it is danced around, like the 3/5th compromise.
The specific clauses of the Constitution related to slavery were the Three-Fifths Clause, the ban on Congress ending the slave trade for twenty years, the fugitive slave clause, and the slave insurrections. However, the Constitution only very obliquely referred to slavery and never used the words slave or slavery because the Framers were embarrassed by the institution. They believed that slavery was morally wrong and would die out, and they did not want that permanent moral stain on the document. Interestingly, they avoided the word slave and referred to slaves as persons.
There is this: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
and this Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons
and this Clause 3. No person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
None of which explicitly says slavery was legal. Comes close, but not explicitly.
Not quite: The Founders knew that slavery violated the “self-evident truth” of the Declaration and the promise of equality in the Declaration of Independence. They were aware of the immorality of slavery and the need for action, yet were—sometime by their own admission—not active enough. Despite this fact, some scholars portray the Founders as racists who on the principle of racial superiority theories sought to protect slavery and its expansion. In fact, it was later generations of statesmen before the Civil War who took this view. …Contrary to the ideas of the statesmen and scholars who doubted that all men were created free and equal, the Framers of the Constitution and other American statesmen believed slavery contradicted the natural rights all had and denied the idea of consent in a republic. They consistently worked to build a constitutional republic of liberty that equally protected the rights of all Americans. Far from being proponents of slavery, the Founding Fathers criticized the institution severely. … No delegates to the Constitutional Convention defended the morality of slavery. The best argument that they could muster on behalf of slavery was protecting their own economic interest.
So, the whole idea that black slavery was a Good Thing came about in the 19th century.
Several important nineteenth century politicians embraced this “positive good” view of slavery and contradicted the Founders that slavery was morally wrong. In 1848, Senator John Calhoun argued that the natural rights language in the Declaration of Independence was “dangerous” and “erroneous,” and doubted that men were created equal.
The Founders by and large hated slavery, but agreed there had to be a compromise for economic reasons. The almighty dollar was important back then too.
Why is that “danced around”? The constitution distinguished between slaves and not slaves when it came to counting the population for voting purposes. That is no small thing. They were developing a governmental system that (supposedly) derived its power from the populace. It is at the root of it all.
That seems an explicit recognition that slaves existed and that they were “different”. Three-fifths of a person.
Could you explain why that makes a difference? Everybody at the time knew exactly what that referred to. No legal, social, or cultural reality changed by not using the exact term. The founders knew slavery was a disgrace and deliberately avoided included the word, but the adoption of the constitution depended entirely upon the compromises, i.e. outright gifts, to the South about slavery. Saying that slavery wasn’t in the Constitution is a prostitution of history.
Of course it was. But not explicitly. That is what I objected to.
And this, which is totally incorrect:
So, it was danced around and never explicitly mentioned nor stated as legal.
And, you are correct-
It wasn’t until the 19th century that the South had this idea that slavery was a natural and good thing. The founding fathers hated it, but many could not afford to get rid of it right then & there. Thus the compromise, which saved the Nation.
And it is hard today to excuse the Founders in the South that would rather keep slavery than personal bankruptcy. But they were mere mortals, subject to normal human frailties.
Some of the founders knew slavery was a disgrace, but they sacrificed people purportedly held as slaves for the sake of creating a “more perfect Union” or words to that effect. To make it more palatable, they saw to it that the words on the page were “massaged” a little. But the vast majority were ignorant racists and I don’t buy DrDeth’s assertion that the idea of white supremacy arose from nowhere in the 19th century as a post hoc rationalization for what “the founders” did. It smacks of apologetics, and the notion that subjecting people and their dependents to slavery along racial lines might fall under the category of “normal human frailties” is quite frankly repulsive to me. These were the most powerful men of their age and place. Neither they, nor their present day apologists, should get to appeal to “normal human frailties” as an excuse for their upholding a grossly unjust system.
But let’s not fool ourselves into thinking we can divine the knowledge or the intent of “the founders” as a singular entity.
Perhaps a legal nitpick, but did the Emancipation Proclamation have the power of establishing a legal status (which would seem to be the province of Congress), or was it simply an executive order that commanded the apparatus of the federal government to treat the slaves as free; in the words of the E.P.
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.
Eh, I mean slavery was widely practiced basically everywhere until about 250 years ago, and is still widely practiced in many places. I think it’s just “factual telling of history” to acknowledge that it is a common practice and thus a common human failing.
One doesn’t need to create excuses one way or the other for the behavior of people dead 200+ years who don’t live in or exist in our current moral system. Trying to do so tends to muddy the waters and lead to poor historical analysis.
BTW, the word “perfect” had a sense of “complete” in the 18th century. So when “a more perfect union” was used in the Preamble, the understood sense was that this federal government would be more complete in function and control than the loose and ultimately unworkable gathering of states that the Articles of Confederation had created.
The Constitution has to be read as the writers wrote it and contemporary readers would have understood it, without any of the hindsight applied by later events.
There are a multitude of major works chronicling the writing of the Constitution. Any of them would be worth time and attention to place a modern audience back into the Pennsylvania State House in 1787.
Nope. Without even delving into the question of just how prevalent slavery was historically, there was nothing common about it in the cultures that practiced it (much less in the cultures that didn’t). Common among the wealthy and powerful != common. Quite the contrary. It means it’s one of the many ways that the wealthy and powerful sought to place themselves above common people, as if they were somehow superior. The vast majority of people throughout history, even in those cultures where slavery was permitted, never claimed to own another human being. To do so is not a common failing, but an uncommon failing among those with power, not a “normal human frailty” like, say, the need for food/shelter/etc. It is a way those with power maintained their power, and I say again that neither they nor their modern day apologists should get to appeal to “normal human frailties” as an excuse or mitigation.
No one needs to own or claim to own another human being to have life and liberty themselves.
That’s like saying “monarchies weren’t common because only a very small percentage of people were monarchs.” That isn’t how people normally talk about things or understand things. Slavery was a common practice. You’re implying a layer of distinction that is entirely optional, and then treating it as mandatory. Saying something is common does not mean “a majority of the people” practiced it, and that applies to basic use of the language.
Yes, it is one of the common ways that the wealthy and powerful accumulated and exercised their power. As I said–a common practice.
And again, the very idea that historical figures need to “apologize” for anything is silly. These aren’t idols or targets of worship, these were men from the past. History is useful as it lets us understand the past, but trying to apply morality of the present to the past simply serves no purpose. You cannot fix the morality of people long dead, and understanding key aspects of learning history, like the causes and effects of events, generally is actually made much worse by trying to see history through a modern lens.
The founding fathers hated it, but many could not afford to get rid of it right then & there. Thus the compromise, which saved the Nation.