On January 1, 1863, President Abraham Lincoln signed the Emancipation Proclamation. Intended to free the slaves in States and political entities in rebellion against the United States, the Emancipation Proclamation applied only to: Arkansas; Texas; Louisiana, except certain Parishes; Mississippi; Alabama; Florida; Georgia; South Carolina; North Carolina; and Virginia, except certain counties. Predating the Reconstruction Amendments, the Emancipation Proclamation did not apply to Missouri, Maryland, Kentucky, and Delaware. Although these states condoned slavery, they were not then in rebellion against the United States. Likewise, it did not apply to Tennessee.
Slavery in Historical Context
Although Lincoln had despised slavery before his presidency, the United States Constitution favored it. Indeed, at the time of the Constitutional Convention, only Massachusetts and New Hampshire had abolished it.
Modern civilized society looks upon slavery with indignation because slaves were human beings. Furthermore, the badges and incidents of this shameful institution remained part of American life after the Civil War ended.
Reprehensible today, slavery figured prominently in Colonial and Antebellum America. The Articles of Confederation, for example, said nothing about slavery because it did not create a strong National Government. But the Constitution, which did create a powerful National Government, contains many clauses related to slavery.
Slavery in Political Context
During the Constitutional Convention, delegates from slave-owning states anticipated the new National Government would threaten this aspect of their constituents’, and perhaps their own, “property rights.” The delegates viewed slavery as a domestic institution of each State, and therefore beyond the reach of the new National Government.
Among the slave-owning states at the Constitutional Convention, Georgia, North Carolina, and South Carolina clamored for these provisions. It appears Virginia and Maryland, by contrast, handled this issue more diplomatically. Nevertheless, delegates from all slave-owning states insisted equally to protect slavery in the Constitution. Notably, the Constitution does not mention any other form of property.
Slavery in the Constitution
With respect to the Founding Generation, the Constitution contains several clauses that demonstrate the consensus with respect to slavery. Indeed, slavery provided the catalyst for the Electoral College in Article II, §1, and the Twelfth Amendment. The following clauses also related to slavery:
The Enumeration Clause, U.S. Const. Art. I, § 2, ¶ 3
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.
Congressional Power, U.S. Const. Art. I, § 8, Cl. 15
The Congress shall have Power…To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions…
Limitation on Congressional Power, U.S. Const. Art. I, § 9
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.
Fugitive Slave Clause, U.S. Const. Art. IV, § 2, Cl. 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.
Constitutional Amendment, U.S. Const. Art. V, § 1
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
America Before President Lincoln
Lincoln sought to govern the United States within the boundaries of the Constitution. At the same time, however, Lincoln understood slavery contradicted America’s founding principles, including but not limited to equality and liberty. But before Lincoln became president, the United States Supreme Court decided Dred Scott v. Sanford, 60 U.S. 393 (1857).
Chief Justice Roger B. Taney determined blacks were neither citizens of the United States nor of any States that allowed slavery. Applying this principle, Dred Scott was neither a citizen of the United States nor Missouri. Therefore, Scott did not have standing to bring suit in federal court on diversity of citizenship grounds under Article III, §2 of the Constitution.
The Dred Scott Court also determined Congress lacked the power to ban slavery in the territories under the Fifth Amendment Takings Clause. Finally, the Dred Scott Decision determined Congress did not have any power to regulate the territories at all.
This decision, taken together with the Fugitive Slave Act of 1850, set the stage before Lincoln’s presidency where the only way to end slavery consisted of stemming its spread. This strategy would spell an end to the institution, but only after an extremely long time.
Elected in 1861 to the presidency, Lincoln grappled with slavery under a Constitution that determined the States alone would regulate it. Furthermore, the political realities before the Civil War militated strongly against amending the Constitution.
A Prelude To The Emancipation Proclamation
On May 23, 1861, three slaves escaped from Colonel Charles Mallory to Fort Monroe, VA. These men were Frank Baker, Shepard Mallory, and James Townsend. One day before their arrival, Fort Monroe had received a newcomer who was also a new solider of just four weeks and the fort’s new commander, Maj. Gen. Benjamin Franklin Butler.
Although Butler was not among the Civil War’s battlefield heroes, his handling of these three men had far-reaching implications. Before the Civil War, Butler was a lawyer. Among other things, he knew International Law and the Laws of War.
Within a day of the slaves arriving, Maj. John Baytop Cary of the Confederacy arrived with a white flag to demand the return of the three slaves. But Butler refused. Knowing these men had been used to further the war effort of his enemy, and knowing his enemy considered these men property, Butler told Cary the men were contraband of war. Butler reasoned he could intercept them like any other property intended for military uses against the United States.
A Model for Emancipation
Butler’s solution for the three slaves had immediate and far reaching implications. Word spread quickly, and it was not long before Fort Monroe as well as any other Union outpost would become a destination for fugitive slaves. The fugitives became known popularly as contrabands among many Americans who had not fully considered the extent of the meaning of abolition. To these people, Butler’s legal reasoning invoked ridicule.
Likewise, the Lincoln administration did not know initially how to manage Butler’s decision. In the coming years, however, Butler’s legal proposition served as precedent for the Emancipation Proclamation. As contraband of war, Lincoln could exercise his Constitutional War Power to free the slaves. Significantly, these decisions were beyond the reach of the Supreme Court. The judiciary did not have any authority to tell the military how to act in the field.
In the years following the Civil War, the United States of America ratified the Reconstruction Amendments. On December 18, 1865, the United States ratified the Thirteenth Amendment, abolishing slavery. On July 9, 1868, America ratified the Fourteenth Amendment, overturning Dred Scott by guaranteeing citizenship and equality to the former slaves as well as the right to due process before the government may deny any citizen of life, liberty or property. Finally, on February 3, 1870, the U.S.A. ratified the Fifteenth Amendment guaranteeing all citizens the right to vote irrespective of race, color, or previous condition of servitude.
1. Paul Finkelman, Constitutionality of the Emancipation Proclamation, available at http://www.c-spanvideo.org/program/Proclamati.
2. Adam Goodheart, How Slavery Really Ended in America, NEW YORK TIMES MAGAZINE, Apr. 1, 2011, available at http://www.nytimes.com/2011/04/03/magazine/mag-03CivilWar-t.html?pagewanted=all&_r=0