Emancipation Proclamation

Emancipation Proclamation

Since issuance of the Emancipation Proclamation, politicians and historians have debated its Constitutionality and Lincoln's approach to emancipation in general. Allen Guelzo, a noted historian, supports both the Constitutionality and Lincoln's approach. Guelzo believes that Lincoln was determined to abolish slavery from the first day of his Presidential term and that emancipation was constitutionally accomplished by Lincoln's "war powers."

Allen Guelzo's View of the Constitutionality of the Emancipation Proclamation

An executive order issued by Lincoln on January 1, 1863,[footnoteRef:1] the Emancipation Proclamation "announced the extinction of slavery."[footnoteRef:2] Contrary to historians who believe that Lincoln grew into his conviction against slavery, Guelzo believes that Lincoln knew from the beginning of his Presidency that slavery would end during his administration.[footnoteRef:3] In Guelzo's view, Lincoln was "enlightened,"[footnoteRef:4] ably preserving the central idea of America -- freedom - by using vaguely defined presidential authority known as "war powers."[footnoteRef:5] In Guelzo's estimation, the vagueness of these powers granted to the Commander-in-Chief of the U.S. Army and Navy by the Constitution is due to the Constitution itself[footnoteRef:6] but that war powers definitely empowered a president to use martial law in civilian affairs during national emergencies.[footnoteRef:7] The sole opinion stated about war powers had been given by former President John Quincy Adams in the House of Representatives in 1836, 1841 and 1842, in which Adams stated that war powers could be used to abolish slavery during national emergencies.[footnoteRef:8] According to Guelzo, that "national emergency" was legitimately precipitated by the nonresponsiveness of the Border States and the unreliability of General McClellan's military endeavors between the presentation of the Proclamation's rough draft to the Cabinet and the Battle at Antietam.[footnoteRef:9] Furthermore, despite McClellan's victory at Antietam, the President adamantly remained committed to emancipation, and so legitimately used his war powers to issue the proclamation.[footnoteRef:10] [1: Allen C. Guelzo, Lincoln's Emancipation Proclamation: The End of Slavery in America. (New York, NY: Simon & Schuster, 2004), 229.] [2: Ibid.] [3: Ibid., p. 5.] [4: Ibid., p. 3.] [5: Ibid., p. 113.] [6: Ibid.] [7: Ibid., p. 114.] [8: Ibid.] [9: Ibid., p. 160.] [10: Ibid., p. 161.]

The Constitutional Factors that Lincoln had to take into Account in Deciding to Issue the Emancipation Proclamation

According to Guelzo, Lincoln had to employ a "politics of prudence," balancing "the integrity of ends" -- ending slavery -- with "the integrity of means" -- his Presidential oath to uphold the Constitution.[footnoteRef:11] This politics of prudence required Lincoln to consider several Constitutional factors in addition to those already mentioned above. Lincoln knew, for example, that the Constitution and state laws prevented Congress and/or the President from mandating against slavery because slavery was within the purview of the states.[footnoteRef:12] Lincoln also had to consider the possibility that the Confederate states still possessed all their Constitutional powers despite secession, a notion that Lincoln would not support.[footnoteRef:13] His Cabinet's nervous attempt to include language appealing to justice, a heavenly being and specific Constitutional sanction also had to be considered by Lincoln but was ultimately rejected by him, believing that the Emancipation Proclamation would likelier withstand challenges if based solely on war powers.[footnoteRef:14] Lincoln also considered and rejected specific reference to the morality of emancipation, believing that he would forfeit the Constitutional for despotism by using "morality" rather than law to advance the Proclamation.[footnoteRef:15] Lincoln also had to consider three other methods of emancipation: contraband, which treated slaves as property that could be seized from slave owners as contraband of war[footnoteRef:16]; confiscation by law that would allow the seizure of contraband property, including slaves[footnoteRef:17]; and martial law, which is military authority used to impose restrictions in declared military districts.[footnoteRef:18]. In the end, Lincoln's objection to those three methods was the fact that they would not be permanent solutions.[footnoteRef:19] Finally, particularly in the face of challenges to even the existence of war powers, let alone Lincoln's right to use them for the Emancipation Proclamation, Lincoln had to consider and posit the vital existence of habeas corpus in peace time vs. war powers in "times of rebellion or invasion"[footnoteRef:20]: habeas corpus was a well-established Constitutional facet that existed only in times of peace; therefore, war powers must exist during rebellion/invasion to fulfill the vital role of habeas corpus at those times; consequently, war powers did not need to be specifically stated in order to exist within the Constitution. [11: Ibid., p. 5.] [12: Ibid., p. 94.] [13: Ibid., p. 177.] [14: Ibid., p. 179.] [15: Ibid., p. 198.] [16: Ibid., p. 30.] [17: Ibid., p. 40.] [18: Ibid., p. 63.] [19: Ibid.] [20: Ibid., p. 206.]