Was the Emancipation Proclamation Unconstitutional?

Great Debates
121

I don’t feel the need to rely on racists to define what rights people have either but I’m confortable rejecting their words rather than trying to contort their words.

The founders of the english and scottish monarchies didn’t intend for commoners to get to choose how they were ruled over, but the fact that the commoners now to get to choose came from the actual society rejecting the monarchy’s absolute power in some cases by violence and/or the threat of violence. What the courts thought about how the legal systems worked was secondary.

122

No one here disagrees with any of that.

Are you trying to say that by writing a Constitution that recognized human rights for a limited number of people, the authors of the Constitution opened the door for a later generation to apply that idea to more people? That might be a plausible argument. It’s certainly better than pretending that the people who refused to even consider the idea that the slave trade could be outlawed for decades were really anti-slavery.

123

You misunderstand. It wasn’t because they were morally bankrupt, it was merely a mistake of fact. They just didn’t know black people were human, apparently. This is the powerful argument we can bring to bear against today’s white supremacists. That Thomas Jefferson is not their spiritual ancestor. He was just mistaken about the humanity of blacks. Now that we all (including apparently the Aryan Nation) are on board with the idea that blacks are human too, we can move past this whole misunderstanding.

124

Ah. All is clear.

125

The root of the assertion seems to be thus: an unjust law cannot be a law. Is that it?

126

I mean basically, yeah. If they premised the recognition of rights for some but not for others on the idea that others were a lesser race of human, and so not on the same plain of “natural rights” as themselves, then it stands to reason that attacking the premise–or just flat out rejecting it–opens the door to go rectify the foundational error and extend equal rights to all under the very same Constitution.

We work with what we can. This is how constitutional law works. If there is favorable precedent, use it. If there isn’t, explain why existing precedent really supports your position if you look at it a certain way and entertain the possibility that taking a wider view of the underlying issue might undermine current understandings of what that precedent really means.

Fredrick Douglass is the one who tried to sell the Constitution as a pro-freedom document (as opposed to a pro-slavery document) by pointing to the text and offering explanations for how they endorsed abolition so long as one did not entertain the hidden intent of the founders as persuasive. His position, not without merit, was that if they wanted to enshrine slavery into law, and see it protected as a right, and see black people denied the franchise in perpetuity and the like, then the damn cowards should have written it down. But they didn’t, so, as Douglass reasoned, we should give no weight at all to what they might have “really” meant if that didn’t make it into the actual text, particularly as we must consider that the founders were not even unanimous in their position on slavery and in their interpretations of the text.

Honestly, Douglass put forward a pretty good case. But only if you grant that founders’ intent is of minimal consequence in interpreting the text. And of course the Supreme Court in Dred Scott went the other way with that: they leaned hard into the undercurrent of racism prevalent at the time the Constitution was drafted and ratified, and in the decades after, including in the North.

So Douglass wanted to largely ignore the founders’ intent, and the Dred Scott court leaned heavily into their racism as evidence of intent, which they considered (unlike Douglass) to be essential to understanding the text. I am simply trying to make the point that a more favorable result (for the anti-racist crowd) could be achieved by emphasizing the founders’ profound ignorance. Did they really consider that they were subjecting fully equal humans to slavery? Perhaps some of them did, but if they didn’t–if the prevailing view was that they were dealing with a lesser race of man–then it stands to reason they never fully considered the question of whether the Constitution might accommodate slavery as it was actually practiced (humans enslaving fully equal humans), only as it was practiced in their minds (white people enslaving black people, with the presumption that blacks were lesser).

More like, they were morally deficient (or, heck, bankrupt if you prefer) because they didn’t acknowledge the equal humanity of blacks. But at the same time, because they didn’t acknowledge the equal humanity of blacks, they never really contemplated enslavement of fully equal humans.

Or maybe they did. Maybe the only thing keeping the founders from giving the thumbs up to white-on-white chattel slavery was that it had already gone out of style and no one really tried to start it up again in the US under the Constitution.

127

Ah. That goes along with what I was saying above

Lincoln said something similar

You say A. is white, and B. is black. It is color, then; the lighter, having the right to
enslave the darker? Take care. By this rule, you are to be slave to the first man you meet,
with a fairer skin than your own.
You do not mean color exactly?–You mean the whites are intellectually the superiors of
the blacks, and, therefore have the right to enslave them? Take care again. By this rule,
you are to be slave to the first man you meet, with an intellect superior to your own.
But, say you, it is a question of interest; and, if you can make it your interest, you have
the right to enslave another. Very well. And if he can make it his interest, he has the right
to enslave you.

I’m also reminded of this bit from MLK

When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men — yes, Black men as well as white men — would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked insufficient funds.

128

It’s true that the Constitution gives to Congress the ability to make laws governing the operation of the military, while the President commands the branches. However, the Confiscation Acts of 1861 and 1862 both provided the President with the authority to strip any claim to their slaves from anyone not loyal to the Union; and the latter specified that they “shall be forever free of their servitude, and not again held as slaves.”

So from a separation-of-powers viewpoint, the Emancipation Proclamation was on solid ground - Congress had already given the President the power to do what the EP specified. So the remaining question is, did Congress overreach? Given the powers the Constitution vests in Congress over non-slave property, it’s hard to say that they did.

129

ASL’s argument fails because it implies that scientific claims about the biological inferiority of Black people were somehow more credible in the 18th century than they are today, so that it was reasonable for the framers of the Constitution to erroneously hold those beliefs, including the ones who personally held enslaved people and interacted closely with them on a regular basis.

The Southern ruling classes wanted to force other people to work for them without pay, so they made up excuses to explain why it was OK for them do so. It was always obvious to anyone not invested in supporting slavery that these excuses were nonsense, and the fact that “scientific racism” is a fringe belief today is because we as a society are more moral, not because our understanding of biology has improved.

130

Except, as I have shown before with cites- the framers of the Constitution did not hold those beliefs. That came many decades later, in the South. The framers agreed that slavery was wrong, but economic necessity forced them to allow it- on a state by state basis.

131

“The Framers” were a large and diverse group, but you are correct that at the time of the Revolution the predominant opinion among elites was that slavery was a bad thing necessitated by temporary economic conditions, which were really somehow all the King’s fault, and would be phased out at some time in the future. No doubt some of them actually believed that. Practically none of them, however, seemed to care enough to even propose, much less try to carry out, any practical way in which this phasing out might work.

Defense of slavery as a positive good became necessary a couple generations later, when folks in the North started to notice that the South wasn’t actually making any effort toward phasing out the institution, but was in fact aggressively expanding it.

132

Didn’t keep them from continuing to enslave people themselves. The framers lost zero tears thinking about the oppressed people they considered lesser than themselves.

133

Also, although “liberal” opinion at the time of the Revolution may have rejected pseudoscientific or religious claims of the inherent inferiority of black people, the vast majority of them held that the slaves couldn’t simply be freed and made citizens, because the circumstances of slavery (including lack of education) rendered them incapable of functioning as free people. So, although their position was on some level more “enlightened” than that of the biological racists, it made no practical difference to the enslaved people.

134

They didn’t consider the slaves lesser humans. Again, that was many decades later in the South.

Right.

135

I suspect that a major reason why people of the late 18th century didn’t believe in pseudoscientific theories of racial inferiority is that science wasn’t considered at the time to be an authoritative source of truth.

136

Their actions showed otherwise.

137

You are incorrect. I have given cites and quotes, and so have others.

No doubt, later that was true in the South. but it didn’t start that way.

138

You are incorrect. Their words clearly showed they believed that all “men” were created equal. Their actions showed they didn’t believe Blacks, based solely on their ancestry, as deserving of life, liberty, or the pursuit of happiness. They didn’t include them in the group of men.

139

Thank you for your reference to the Confiscation Acts which turned out to be some interesting reading this evening. After reading the actual texts of the acts, it appears to me that, unlike the Emancipation Proclamation, Congress wrote the acts in such a way to give at least a veneer of due process to the provisions of the acts. All of the provisions regarding the forfeiture of slaves or property provided for or at least mentioned some process in the courts, whether it was forfeiture following a criminal conviction or a civil in rem forfeiture action. Unlike the Emancipation Proclamation, the Confiscation Acts described the slaves and property of certain persons, i.e., persons engaged in or supporting an insurrection, and not a general description of all slaves and property in a geographic region. The President was given authority to seize property of persons engaged in or supporting an insurrection but the ultimate final condemnation was still left to the courts.

I found it interesting that Congress was careful to refer only to the “so-called confederate states of America” in the acts and never recognized the C.S.A. as any sort of legitimate government.

Another interesting act of Congress during this time was the Act Prohibiting the Return of Slaves. This act forbade the military from using any of its resources for the purpose of returning fugitive slaves. However, the act did not emancipate anyone nor did it prohibit the return of a fugitive slave by someone other than the U.S. military.

140

It is my opinion that this statement is not exactly correct. The acts gave the President the authority to seize the slaves of anyone not loyal to the Union but left the ultimate disposition of the claims to the slaves to the courts. I wasn’t there, so I don’t know, but I suspect this distinction had little practical effect under wartime conditions.