Today in Supreme Court History

Today in Supreme Court History: January 1, 1863

|The Volokh Conspiracy |

1/1/1863: Emancipation Proclamation issued.

President Abraham Lincoln

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  1. Guess nothing happened on 2019-12-31, not even Martin van Buren’s nephew’s gardener being born.

  2. Contrary to popular conception, the Emancipation Proclamation did not end slavery, and did not free any slaves. Abraham Lincoln was a white supremacist with “no purpose, directly or indirectly, to interfere with the institution of slavery,” and the war was not fought to end slavery, nor on the other side to preserve slavery.

    In August 1862 Horace Greeley called on Lincoln to declare emancipation for slaves in Union states. In response, Lincoln wrote, “My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union.”

    Indeed, when Lincoln issued the Emancipation Proclamation months later, he expressly made it inapplicable to Union slave states which held about 500,000 slaves. These were the only slaves that Lincoln had any power to emancipate, the Confederate states having seceded, and so the Emancipation Proclamation freed zero slaves. Instead, it was a “wartime measure” in its own words, and sought to encourage rebellion and defections to weaken the Confederacy.

    Likewise, Lincoln supported the Corwin Amendment and offered the Confederate states a constitutional amendment to permanently protect slavery if only they would give up on the cause of independence. The Confederate states emphatically rejected this offer (why?). Meanwhile, there was a very real possibility of England and France supporting the Confederacy, which Lincoln aimed to discourage, and there is evidence some Confederate leaders were inclined to abolish slavery in order to gain European support for their cause of independence.

    1. and the war was not fought to end slavery, nor on the other side to preserve slavery.

      Right on Lincolns motivation, and indirectly on northerners in general; they despised the slavocracy ad its magnified power holding the north hostage.

      Dead wrong on the CSA motives. Every single Confederate politician bragged on and on how they seceded to preserve slavery.

    2. Lincoln was telling Greeley what he wanted to hear. Politicians do that all the time. It was not his true sentiment, as events were to prove.

      1. Events proved beyond a shadow of a doubt that this was Lincoln’s true sentiment. Greeley called for Lincoln to declare emancipation for slaves within the Union. Lincoln proceeded to explicitly NOT do that, and issued a proclamation as a war measure which freed zero slaves.

        1. To free slaves within the Union would be Constitutionally objectonable. Also there was a civil war going on and he could not exactly say goodbye to Maryland (a slave state). Look at the map.

          1. True. You’re absolutely correct here. But this only further demonstrates that Lincoln’s objectives were precisely as described by himself in the quote above.

            1. If I were determined to end slavery in the most efficient and workable way possible, I would do exactly what Lincoln did.
              1) Say what I had to say to get elected in 1860 (and re-elected in 1864).
              2) As Comander-in-Chief, issue the Emancipation Proclamation, a military order and as such applicable only to states “in rebellion”.
              3) Quickly push the existing Union to ratify the 13th Amendment (early 1865; this process was depicted in the recent movie “Lincoln”).
              4) After the war, refuse to readmit states unless they ratify the 13A.

              1. That’s a completely one-sided and wholly implausible take on history.

                If one were determined to preserve and enhance centralized government rule over the Union no matter the cost in blood, and then after the fact apply a thin veneer of righteous post-hoc rationalization, one would do exactly what Lincoln did.

        2. The Proclamation freed slaves in territories of the seceded states that were occupied and run by the US Army, of which he was the commander-in-chief. So it did free a great many slaves, and more as the war continued. As for Lincoln’s motives, his strong endorsement and lobbying for passage of the 13th amendment would seem to contradict your theory that he had no interest in ending slavery. And even before the war, he was a strong proponent of banning slavery in territories and any new states entering the union.

          1. “. . . would seem to contradict your theory that he had no interest in ending slavery.”

            You’ve mischaracterized my “theory.” Read my post and the Lincoln quote again.

            1. You mean the part of your post where you typed “Abraham Lincoln was a white supremacist with “no purpose, directly or indirectly, to interfere with the institution of slavery…”?

              1. The quote is Lincoln’s words, not mine. Lincoln’s actions, together with his words, demonstrate that his overriding purpose was to maintain and strengthen the centralized government rule over the Union.

    3. Contrary to popular conception, the Emancipation Proclamation did not end slavery, and did not free any slaves.

      It’s not the popular conception that the proclamation ended slavery, or at least it’s not the conception of anyone who has heard of the 13th Amendment.

      It is however the case that the Proclamation changed the nature of the war, making it about slavery after all.

      Even before the Proclamation slavery was slowly collapsing in the south. Contrary to the idea that it “freed no slaves,” it accelerated this process considerably, as slaves fled to areas – ever-growing – controlled by federal troops.

      1. Fair points but don’t underestimate the extent of popular misconceptions, much of these are even taught in history books. “the Proclamation changed the nature of the war, making it about slavery after all.” Well, I agree that the Proclamation was in part an attempt late in the game on the part of one man to “make the war about slavery,” in precisely the same way a historical revisionist with an agenda thinks they can just dictate what something was “about” merely by declaring it to be so.
        But that’s not how reality works of course; so this would be “no more than a piece of specious humbug.”

    4. he expressly made it inapplicable to Union slave states which held about 500,000 slaves. These were the only slaves that Lincoln had any power to emancipate, the Confederate states having seceded, and so the Emancipation Proclamation freed zero slaves.

      You are mistaken. He had no power to emancipate slaves in Union territory, (Article 12 of the Constitution would’ve given him that power, of course, but it wasn’t enacted until 2017.) He only (arguably) had such power with respect to the states in rebellion, precisely because it was justified as a wartime measure; he had the authority to put down insurrection.

      The Emancipation Proclamation did free slaves — de jure immediately, and de facto over the next two years.

      1. He had even less power to emancipate slaves in the Confederacy, which is why the Proclamation freed no slaves de facto. In the Union he was at least the President, which is more than nothing. But regardless my point was, what Horace Greeley was calling for is precisely what Lincoln did not do, for the reasons he explained. And it’s interesting how the argument from bernard is “nobody thinks this” and the argument from you is “actually this is true.”

        But I love this notion you are proffering that Lincoln was concerned in the slightest about what the Constitution did or did not permit him to do, and refrained from taking an action on that basis. Thanks for the laugh!

        1. As I’ve done in the past, I would point you to Fredrick Douglass’ evaluation of Lincoln as an anti-slave President.

          Though Mr. Lincoln shared the prejudices of his white fellow-countrymen against the Negro, it is hardly necessary to say that in his heart of hearts he loathed and hated slavery. The man who could say, “Fondly do we hope, fervently do we pray, that this mighty scourge of war shall soon pass away, yet if God wills it continue till all the wealth piled by two hundred years of bondage shall have been wasted, and each drop of blood drawn by the lash shall have been paid for by one drawn by the sword, the judgments of the Lord are true and righteous altogether,” gives all needed proof of his feeling on the subject of slavery. He was willing, while the South was loyal, that it should have its pound of flesh, because he thought that it was so nominated in the bond; but farther than this no earthly power could make him go.

          Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined.

          Your condemnation will need to contend with the analysis of one of the foremost contemporary advocates for abolition who thinks Lincoln was both in his heart and deeds about as good as it gets.

          1. Your quote acknowledges that Lincoln was more than willing to allow the continuation of slavery, but unwilling to allow the division of the Union. I make no argument whatsoever on whether Lincoln “hated slavery” in his “heart of hearts.” I find it plausible that he did. What is clear, though, is that the overriding purpose of his actions as President was to maintain and strengthen the centralized government over the Union, and the issue of slavery, whatever his feelings on it, was fully subordinate in his mind. I have no disagreement with Mr. Douglas.

            As an aside, I would like to see the source or historicity of the Lincoln quote. When and where did he say this? The quote seems fully compatible with a man who may have hated slavery, but was also attempting to rationalize his bloody war that was made for an entirely different purpose.

        2. The Proclamation freed large numbers of slaves, and the number increased as the Union took more Confederate territory.

          Abolitionist sentiment was by no means universal in the North. Lincoln had to hold the North together. It would do little good to try to free all the slaves at the cost of disunity and possible stalemate in the war.

          See captcrisis’ comment at 1:22 PM on Jan. 2.

        3. Lincoln was actually very concerned with what the constitution did or didn’t allow him to do, and wrote and spoke a great deal about how his actions squared with the constitution. You or I (or Chief Justice Taney) might not agree with all his conclusions, but he clearly did consider these questions carefully.

  3. Lincoln was perhaps the worst president of the US.

      1. Donald Trump is perhaps a pedophile. Hillary Clinton perhaps has her political opponents killed. Two plus three perhaps equals seven.

  4. That’s inaccurate. First of all, the causes of secession, and the cause of the war, are not and were not the same thing. Note that I was talking about the war, but you switched to secession.

    As far as secession, it is true that most Confederate politicians emphasized slavery as a reason and often the main reason for secession. But not all. In fact, a sizeable minority of the states made no mention of slavery at all in their secession documents. In particular, Virginia, North Carolina, and Tennessee initially did not secede, and only eventually did so in response to Lincoln’s moves to raise up an army against the southern states for daring to declare independence as the colonies had less than a century ago. There was great objection to the perversion of the federal power, and even the issue of slavery was commingled with such legal objections. But even going by Lincoln’s inaugural, slavery was not exactly under grave threat. Then, if you read a book on the economics of the era, you will see that there were major issues, with the North essentially calling for economic destruction of the South. Overall, there is no doubt that slavery was the major factor in secession, but the factors were many and multi-faceted. But when it comes to the war, that’s a very different ball of wax, and of course all a bit much to get into.

    Finally, consider that in a political matter such as secession, but especially in war, the reasons held by those in power typically differ from the sentiments and convictions of the common man who bled and died on the battlefield. That’s true of war throughout history. Most wars are fought over money and power, and the Civil War (a misnomer actually) was no exception, but that doesn’t tell the full story of the soldier and the hero.

    A few quotes from contemporary observers:

    “Slavery is no more the cause of this war than gold is the cause of robbery.” Gov. Joel Parker of New Jersey, a reluctant supporter of the war

    “The war between the North and South is a tariff war. The war is, further, not for any principle, does not touch the question of slavery and in fact turns on Northern lust for sovereignty.” Karl Marx

    “The Northern onslaught upon slavery was no more than a piece of specious humbug designed to conceal its desire for economic control of the Southern states.” Charles Dickens

    1. ^This is in reply to “Á àß äẞç . . “

      1. No, lust for sovereignty here referred to the North’s desire to rule over and dominate the South. The South, on the other hand, did not seek to rule over the North, but only to be independent. That’s why this was not actually “civil war.”

        Moreover, the South didnt start the war, Lincoln did, over some objections within the Union. Tell me, if California seceded, and Trump promptly went to war against them and started slaughtering Californians, would you blame California or Trump for the violence?

        1. This is a reply to apedad. Something screwy with the replying.

        2. The “North” (aka the United States) was the sovereign and could therefore rule the Southern States as they (constitutionally) saw appropriate.

          “Tell me, if California seceded, and Trump promptly went to war against them and started slaughtering Californians, would you blame California or Trump for the violence?”

          If California tried to secede without the US’s approval, then the United States could use any legal means to enforce our sovereignty. Unauthorized force (e.g. slaughtering) is illegal and should be prosecuted.

          If this happened during the Trump presidency, he would probably pardon them.

          1. ML, you are also leaving out the inconvenient fact of the seceding states seizing military assets conveniently placed within their grasp by the Buchanan administration, as well as their seizure of forts, military bases, and other property owned by the US.

        3. Moreover, the South didnt start the war, Lincoln did,

          False. You might want to look up, inter alia, the Star of the West and Fort Sumter.

          over some objections within the Union. Tell me, if California seceded, and Trump promptly went to war against them and started slaughtering Californians, would you blame California or Trump for the violence?

          California has no legal right to secede, so if they attacked the U.S. in an attempt to do so, they would of course be responsible. Who I would blame would depend on their reason for seceding, though; if their cause was just, then I would blame the side that drove them to secession. If their cause was unjust — e.g., preserving slavery — then I would blame them.

          1. No, Lincoln was bent on war and “saving the Union.” He sent battleships into Charleston Harbor for the purpose of getting South Carolinans to fire the first shot.

            “California has no legal right to secede”

            The founders would disagree. But if we adhere to Lincoln as our new founder then sure.

            But what if California attempted to secede peacefully, and Donald Trump waged war upon them, while refusing their extensive efforts at diplomacy to avoid war, as Lincoln did?

            1. CA (TX, FL, etc.) could attempt to secede peacefully but they ain’t going nowhere unless the US Government says it’s OK and that ain’t happening.

              Anything past that (e.g. barring US troops, controlling ports, etc), then CA would be the belligerent.

              Your fantasies are stupid.

            2. No, Lincoln was bent on war and “saving the Union.” He sent battleships into Charleston Harbor for the purpose of getting South Carolinans to fire the first shot.

              It’s amazing how much bullshit you can pack into a few words.

              South Carolinians had already fired the first shot. I told you to look up the Star of the West. (Hint: that was before Lincoln even took office.)

              The U.S. had no battleships in 1861.

              Lincoln told the S.C. governor that that he was sending in provisions only, and would try to resupply the fort only if there was an attack. South Carolinians attacked Sumter before the relief ships even arrived.

              “California has no legal right to secede”

              The founders would disagree.

              They would not. Like many neoconfederate apologists, you confuse the legal right of secession with the natural right of revolution. The founders did not argue that their secession from England was legal; that would have been frivolous. Of course English law did not permit rebellion. Rather, they argued that they had a moral right to overthrow British rule because “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it.”

              But what if California attempted to secede peacefully,

              I already addressed that: it depends why they were seceding. But of course your question is not parallel to the treasonous southerners, who did not attempt to secede peacefully; they attacked and seized U.S. government property across the South. And they did so before Lincoln even took office.

              1. The U.S. had no battleships in 1861.

                Maybe ML meant to say aircraft carriers.

    2. “The war is, further, not for any principle, does not touch the question of slavery and in fact turns on Northern lust for sovereignty.”

      Wouldn’t this be more accurate, “The war is, further, not for any principle, does not touch the question of slavery and in fact turns on Southern lust for sovereignty?”

    3. Karl Marx, Charles Dickens, and the Governor of New Jersey.

      Now there’s a convincing group on the causes of the war.

      1. They are just some of the more pithy quotes. You can just read Lincoln’s own words.

        1. They are just some of the more pithy quotes. You can just read Lincoln’s own words.

          Yet they are the best you could do?

          Tariff war? Wow, I thought not even you neo-Confederates were still trying that out.

          As for Lincoln, he said a lot of things. He was trying to balance a variety of political pressures – including increasing pro-abolition sentiment in the North – with the goal of winning the war and with an eye to ultimate reunification.

          Nonetheless, as to the cause, he said this in his second inaugural:

          One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it.

          Emphasis added.

          1. You’re right that Lincoln “said a lot of things.” But apparently the best you can do is quote him, ignore historical facts and actions I’ve mentioned and focus on the quotes I’ve added. Lincoln said a lot of things, especially to excuse his actions and take up the age-old victor’s prerogative of attempting to rewrite history in his favor.

            1. On the contrary, it is you who are relying on selective quotes, not to mention changing views.

              The fact is this:

              Lincoln succeeded in abolishing slavery.

        2. One need only look at history – slavery consumed national debate for decades before the Civil War. Bleeding Kansas, the Caning of Charles Sumner…no cherry picked quotes can tell you nearly as much as the actual acts at the time.

          I don’t know if it’s just contrarianism or some nascent lost cause narrative that’s making you insist otherwise, but slavery either as the moral question or the economic institution was the cause behind

    4. You’ve got all the neoconfederate apologia down, but like most revisionist history on the Internet, you’re just quoting things you read somewhere in a desperate attempt to prove a false point. For example:

      A few quotes from contemporary observers:

      […]

      “The war between the North and South is a tariff war. The war is, further, not for any principle, does not touch the question of slavery and in fact turns on Northern lust for sovereignty.” Karl Marx

      Why we would care what Karl Marx thought, I’m not sure, but this is a lie anyway. That is not a quote of Marx; that is Marx’s summary of the British press’s views that he is debunking. If you had read it, you’d know that; it’s impossible to miss if one reads the whole first sentence instead of cutting it off in the middle as you did. If you knew anything at all about Marx, you would also know that this is nothing like his view.

      1. Marx actually wrote some insightful journalism about the Civil War.

      2. We shouldn’t care what Karl Marx thought, it just seemed catchy, but upon further examination I concede your point here on Karl Marx. Not sure where I had grabbed that from but I shouldn’t have included Marx.

    5. As far as secession, it is true that most Confederate politicians emphasized slavery as a reason and often the main reason for secession. But not all. In fact, a sizeable minority of the states made no mention of slavery at all in their secession documents.

      This is disingenuous. The only states that made no mention of slavery are the ones that made no mention of anything. Every traitor state which gave a reason gave slavery as the sole or primary reason.

      Lincoln’s moves to raise up an army against the southern states for daring to declare independence

      Another distortion. He raised up an army against the insurrectionists for daring to attack the United States.

      1. the North’s desire to rule over and dominate the South

        Dude’s in deep.

  5. If anything did -not- warrant a “Today in Supreme Court History” post (and most such posts have not), it’s the Proclamation. It did not raise any Constitutional issues. It was not challenged in court.

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