Today in Supreme Court History: January 1, 1863

1/1/1863: Emancipation Proclamation issued.

President Abraham Lincoln

Comments

[Dan Schiavetta]

Blake v. United States, 103 U.S. 227 (decided January 1, 1880): (Wikipedia has this being decided on January 1 though all Westlaw says is “October Term”.) In those days the President evidently had to appoint every army or navy officer, and an 1862 statute gave him the power to dismiss, but an 1866 statute said the officer could be removed only via court-martial. Here, an army “post-chaplain”’s resignation was accepted by the President but the man later said he was “insane” at the time. His claim for back pay was held to be time-barred, even taking into account a toll for insanity. This case wins some points for strangeness, but is basically boring and unimportant. It’s the only one I could find for January 1 though. A happy New Year to all.

[F.D. Wolf]

An interesting case. Apparently, President Hayes had already nominated a successor who had already been confirmed by the Senate, so that settled the issue as far as the Court was concerned.

I've thought about this issue in the context of federal judges, who, of course, uniquely among Presidential appointments have lifetime tenure. What if a federal judge announced his resignation, but then withdrew it? What if it happened during the confirmation process of his successor? What if it happened after his successor had been confirmed by the Senate? This is one of the perils of nominating a successor while there is not an actual vacancy, only an anticipated one. Some have suggested this not uncommon practice by the President and Senate is unconstitutional. Of course, requiring an actual vacancy has the obvious disadvantage of inefficiency, given the speed of the current confirmation process, a vacancy will tend to last several weeks at least, slowing the administration of justice. I don't imagine the Senate would be willing to go back to the time when confirmation votes usually occurred within days of a nomination.

(This scenario became a real possibility when Chief Justice Earl Warren, who had announced his retirement, effective upon the confirmation of his successor, in June 1968, realized it would not be President Johnson, but Warren's bête noire President Nixon, who would be naming his successor. Warren considered withdrawing his resignation, but ultimately decided against it.)

[Dr. Ed 2]

Remember that Warren was a Republican -- former Republican Governor of California.

[F.D. Wolf]

Yes, I am aware, though he was a progressive Republican. Nevertheless, Warren, who was notorious for holding grudges, probably hated Richard Nixon more than he hated anyone else. Their feud began in 1946 when Nixon, recently out of the Navy, was running his first campaign for Congress in California against incumbent Rep. Jerry Voorhis. Warren did little to nothing to help Nixon, praised Voorhis for his job in the House, and when Harold Stassen, former Republican governor of Minnesota had agreed to come campaign for Nixon, Warren called him and got him to renege. Regardless, Nixon won.

In 1950, Warren refused to endorse Nixon. In 1952, when Warren was running for the GOP presidential nomination, Nixon boarded a train carrying Warren delegates to the convention and convinced several to switch their allegiance to Eisenhower.

The Supreme Court heard oral arguments in United States v. Nixon on July 8, 1974. Warren would die the next day. Attending his deathbed were his former Court colleagues William Brennan and William Douglas. The dying Warren grasped Brennan’s hand and pleaded with him not to let Nixon get away with it. That’s what Earl Warren was thinking about in his final moments: Richard Nixon. That’s Captain Ahab-level hate.

[Dan Schiavetta]

IIRC due to a filibuster by anti-Civil Rights forces (in those days, Southern Democrats) it would be Nixon and not LBJ who would nominate his successor.

The political parties were in the process of transforming from the "Fifth Party System" to the "Sixth Party System". (Or maybe from Fourth to Fifth?) Warren was a Republican from their pro-Civil Rights era, which began with Lincoln -- ohmigod!! I found a way to connect with Josh's post!

[F.D. Wolf]

Fortas was a bad pick for Associate Justice, and a worse one for Chief Justice. He was a Johnson crony, which is why Johnson wanted him on the Court. He was initially resistant to Johnson’s overtures for two reasons: he would be taking a steep decline in income, and he would miss the “action” of politics. He addressed the former by entering into some dubious financial arrangements, and the latter by staying immersed in politics. He probably could have still been confirmed as Chief Justice, but he got caught lying to the Senate about the extent of his involvement with the Johnson White House. (And being Jewish didn’t help.)

And all this surely didn't help Earl Warren's mood. With his retirement, he had sought to deny Nixon a Supreme Court pick, but, instead, had ended up giving him two.

[John F. Carr]

The decisions in the printed Supreme Court reporter for that term are undated.

https://www.loc.gov/collections/united-states-reports/about-this-collection/united-states-reports-by-volume/

[Dan Schiavetta]

Thanks

Undated

Like the stone tablets given to Moses!

[Jerry B.]

If the Civil War was all about slavery, why wasn't the Emancipation Proclamation issued back in 1861 when the war started?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I'll be as civil as I can for such a trollish stupid question.

Many years ago I saw some tabulation of speeches which showed that every single Confederate governor, lt governor, and federal legislator, except for one, gave rousing speeches listing preservation of slavery as the reason for secession.

The biggest difference between the US Constitution and the CSA Constitution was the explicit recognition of slavery.

You can prattle on all you want about states rights, but then you can't justify the slave states using the Federal fugitive slave laws to defeat free states rights.

In short, only idiots blame the Civil War on anything and everything except slavery. A noble fucking war my ass.

[McSmith]

The South seceded because of slavery, but civil war was over state rights, i.e., whether states could leave the union.

Yes, SC fired on Fort Sumpter because it wanted the American army to leave the state. Even so, the South would not have fought a war at all if allowed; it knew that the North had triple the manufacturing capacity and manpower, and so would have avoided a fight if possible.

The North attacked the South, fighting the first big battle at Manassas/Bull Run. It did so to preserve the Union at all costs, not to free the slaves. Lincoln said as much: “if I could save the union without freeing any slaves, I would do it…” And if McClellan would have won the election in 1864, the war might have ended and no one today would have said it was about slavery as such, let alone about ending the institution.

With that in mind, Texas v White (1868) is one of the stupidest, most disingenuous SCOTUS decisions in the canon. The Court had the audacity to claim that the preamble’s language of a more perfect union meant an indissoluble one.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

In other words, it was about slavery.

The South seceded because of slavery, but civil war was over state rights, i.e., whether states could leave the union.

“Judge, his death was from a bullet, and all I did was pull the trigger. They’re entirely unconnected.”

[McSmith]

Nope, it was about preserving the union--unjustly and unconstitutionally, to boot.

You should learn what the phrase "in other words" means.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You should stop quibbling like a pro.

[McSmith]

It's no surprise that that's the best you could come up with as a response.

Secession due to slavery. The North could have just said "OK, goodbye. Enjoy your slaves."

Instead, they initiated a stupid civil war (or, rather, a war of Northern imperialist conquest and acquisition).

[David Nieporent]

The southern traitors, of course, initiated the war.

[Noscitur a sociis]

The War of Northern Faiiure to Unilaterally Surrender.

[Krayt]

Sorry, accidentally flagged. Someone should invent an un-flag button one of these centuries.

[Tom for equal rights]

The civil war was about both preserving slavery and preserving the union.

The south was very much about protecting the institution of slavery. The north was primarily about preserving the union. The EP was primarily about creating public support in the north for continuing the war. almost all wars lose public support which was happening in the north, which was the primary driver of the issuance of the EP. The emancipation proclamation had been written several months prior to issuance (perhaps as much as 12-15 months earlier)

[Alpheus W Drinkwater]

That's all correct, and also Lincoln would have had no constitutional authority to free slaves before the US Army had occupied areas of the Confederacy. I know people like to spread the myth that Lincoln just acted as he pleased without reflection for his constitutionally defined powers, but it just isn't true.

[Noscitur a sociis]

Yes, at the beginning of the war most high ranking American officials would likely have granted pro-slavery concession to resolve the secession crisis. The confederates were so passionately devoted to the cause of slavery, and so paranoid about the threats to it, that they betrayed their country anyway.

Again, why you guys think this fact is a point in favor of the confederacy—much less a refutation of the idea that the war was about slavery—is beyond me.

[Alpheus W Drinkwater]

Right, a perfect example of this is the fire eaters undermining Stephen Douglas' attempt at the Presidency. They were determined to secede long before Lincoln's election.

[Krayt]

You free the slaves, and kill the slavers.

This should be perfectly fine with everyone. Why isn't it?

[Frank Drackman]

Same reason killing Abortionists isn't fine with everyone.

[Krayt]

Feel free to argue "both sides on slavery" are defensible positions.

[defaultdotxbe]

That would technically be an ex post facto law. You'd be making something illegal (holding slaves) and then punishing the slave holders because they had held slaves before slavery was abolished.

[Jerry B.]

Well, then, why didn't the United States allow the Southern states to secede? Where's a constitutional requirement that states not secede?

[Drewski]

The Air Bud rule is not actually a constitutional law doctrine.

[McSmith]

Texas v White. Post hoc horseshit.

[Tom for equal rights]

erry B. 8 hours ago
Flag Comment Mute User
Well, then, why didn’t the United States allow the Southern states to secede? Where’s a constitutional requirement that states not secede?

jerry B - As part of each state ratifying the constitution was that each state upon ratifying the constitution, were agreeing not to later withdraw from the Union.

[McSmith]

"jerry B – As part of each state ratifying the constitution was that each state upon ratifying the constitution, were agreeing not to later withdraw from the Union."

That's simply and obviously false.

[Tom for equal rights]

Ratification: The People Debate the Constitution, 1787-1788 Paperback – June 7, 2011
by Pauline Maier (Author)

[Bored Lawyer]

Many years ago I saw some tabulation of speeches which showed that every single Confederate governor, lt governor, and federal legislator, except for one, gave rousing speeches listing preservation of slavery as the reason for secession.

And why are the Northerners' reasons simply ignored? It takes two sides to have a civil war.

Yes, the South seceded because they believed that a Lincoln administration would eventually lead to the abolition of slavery.
The North, OTOH, made war to preserve the Union. Lincoln even said he would allow slavery in the South if the Union could be preserved. The Southerners, obviously, did not believe him, or at least thought that any such promise would not long survive.

Why this is so hard, I don't understand.

None of the above makes the Southern cause noble. It was ignoble. Slavery was a moral blight in the nation. But don't kid yourself that the North's motives were pure.

(By the by, when the Civil War started, the British Empire had already abolished slavery. I always wondered to what extent that influenced Southern worries. Britain was the South's biggest customer for cotton, it was culturally the leader of the English speaking world, and at the time the most powerful nation on earth. If someone in that position finds slavery abhorrent, and then so do a lot of Northerners, I would think the Southerners would get very nervous about how long the institution would last.)

[Jerry B.]

"The North, OTOH, made war to preserve the Union."

Why? What is so great about the Union that it can't survive if a group of states which don't want to be part of it would like to leave?

[David Nieporent]

.

Why? What is so great about the Union that it can’t survive if a group of states which don’t want to be part of it would like to leave?

Democracy cannot survive if elections are "Heads I win; tails I quit."

[Jerry B.]

Ever heard of foot voting?

[David Nieporent]

Yes; that's a metaphor for someone leaving, not for someone staying but declaring that he's no longer subject to the government.

[David Nieporent]

.

And why are the Northerners’ reasons simply ignored? It takes two sides to have a civil war.

It takes one side to start a war.

Or to quote one of the great writers: "It needs but one foe to breed a war, not two"

[Bored Lawyer]

Why is that so? The North might have simply told the South goodbye, and withdrawn its troops. The South had no territorial claims on the North, and would have been very happy to just be allowed to secede.

Tolkien was talking about a situation where one side decides it wants to destroy the other side. There, yes, you have a war whether you agree or not.

[David Nieporent]

.

The South had no territorial claims on the North,

Fort Sumter would beg to differ.

[Bored Lawyer]

Now you are being silly. Fort Sumter was a federal facility established when South Carolina was part of the Union. Had the North agreed to secession, then that territory would have been ceded to the Confederacy. Yes, secession would have meant that all authority of the United State would have been removed from the Confederate states. That's not the same thing as the South making a claim to, say, Pennsylvania or Illinois.

[David Nieporent]

Fort Sumter was unequivocally U.S. territory. (As were a lot of other federal installations across the so-called confederacy that James Buchanan didn't even bother to try to defend.) The traitors didn't ask if the U.S. would sell these forts to them; they seized them by force. There's no reason that it "would have been ceded to the Confederacy" any more than Gitmo was ceded to the Cuban government.

[Artifex]

... and it would have been promptly deserted through inability to resupply.

Maybe you are assuming Lincoln had a nifty teleportation device so that he could avoid travel through South Carolina's waters ? Here in the real world, the actual flashpoint that was South Carolina's justification for shelling Sumter was was Lincoln ordering a fleet of warships into Charleston harbour to resupply Sumter.

[Noscitur a sociis]

No, David Nieporent is noting that even the unconditional surrender you guys seem to think the U.S. was morally obligated to offer still wouldn’t have been enough to avoid armed conflict.

Apparently you agree.

[Bored Lawyer]

even the unconditional surrender you guys seem to think the U.S. was morally obligated to offer

The silly season continues. Unconditional surrender is what the Allies offered Germany and Japan in WWII. You know, which means you occupy the surrendering country, control its government, and possibly try and hang its leaders. (They contemplated hanging the Emperor of Japan; Hitler avoided that with a bullet to his head.)

The South made no such demands. They wanted to break away and be independent of the United States. That would have required some adjustment of federal power over areas in the South, such as military bases. But that's a far cry from unconditional surrender.

If the North had said, "Sure, secede, we will treat you like an independent country," there would have been no civil war. And, the Northerners who fought, at least their leaders, believed they were fighting to preserve the Union, not free the slaves. That was only an official cause after 1863.

As for moral obligation, DN's point is the reason to insist on preserving the Union. Had the North agreed to secession, then every time there was some disagreement, some state or group of states would threaten to secede. (As the New England states indeed had threatened several decades earlier.) the result would likely be the nation would fall apart, or be considerably weakened. So that's the moral justification for the war.

[Tom for equal rights]

concur with bored lawyer -

The south fought primarily to preserve slavery.
The North fought primarily to preserve the union and to quash the rebellion

[Noscitur a sociis]

.

But don’t kid yourself that the North’s motives were pure.

No one except you is raising the suggestion that “ the North’s motives were pure.” The question under discussion is whether the war was about slavery.

Why this is so hard, I don’t understand.

It’s not hard at all. The confederate states tried to secede to preserve slavery: the U.S. government was willing to accommodate them to avoid the issue; they weren’t satisfied and launched an armed rebellion anyway.

Over slavery.

[Hugo S. Cunningham]

(1) The Civil War started because the newly elected Republican administration promised to *contain* slavery to States where it already existed. Even that was considered an intolerable insult to slave-State politicians, who started the rebellion in response.

(2) In 1861, Lincoln recognized that he did not have a mandate to abolish slavery where it already existed. A majority of Unionist politicians and soldiers were willing to allow the rebelling States to keep slavery (but *not* to expand slavery into new States and territories) if they ended their rebellion and rejoined the Union.

(3) By September 1862, it became clear to Unionists that the seceded States would not peaceably rejoin the Union even if they could keep slavery. In contrast, a Unionist commitment to Abolition would give a new moral fervor to Unionist supporters, while largely eliminating the possibility of European intervention on behalf of the Confederacy.

(4) The Emancipation Proclamation of 1863, Jan 1 "did not free a single slave," but it was a *promise* to free slaves, a promise that Lincoln would make good on over the next 30 months by crushing the Rebellion.

[Alpheus W Drinkwater]

I disagree with #1. The leading politicians in the south were intent on secession long before Lincoln's election. They actively torpedoed the Presidential aspirations of candidates who would've been much more conciliatory on slavery, like Stephen Douglas. Indeed they walked out of the convention rather than have Douglas nominated, because they realized it would've undermined their ostensible reasons for seceding.

[Hugo S. Cunningham]

I agree the Democratic delegates who sabotaged Douglas's nomination in the summer of 1860 hoped for secession, but most Southern voters had not reached that point yet. More would vote for Stephen Douglas or "Constitutional Union"s John Bell than for hard-core pro-slavery John C. Breckenridge (though Breckenridge would eke out a plurality across the Deep South). Bell voters hoped to block anyone from getting an electoral college majority, meaning the House of Representatives would name an acceptable compromise candidate.

[Frank Drackman]

And not a single Slave freed

[Dr. Ed 2]

The Emancipation Proclamation was UnConstitutional and Lincoln knew it.

Look at how slavery ended in DC -- the Federal Government bought them. They brought in a few slave traders from Maryland to evaluate the value of each slave and the Feds paid it. As required by the "taking clause."

It took the 14th Amendment to legalize the 13th.

[bernard11]

So if someone steals my car, and the police recover it and return it to me, the recovery is a taking, and they have to compensate the thief?

[Dr. Ed 2]

"But neither the United States nor any State shall assume or pay ... any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."
--- 14th Amendment, Section 4.

Why was that necessary?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Because slaves were legal property at the time. Stolen cars have never been legal property.

[Syd Henderson]

The 13th Amendment was ratified so saying the 14th Amendment made it legal doesn't make sense. The question was whether the slave owners should be compensated, but the freed slaves weren't going to be enslaved again whether the owners were compensated or not.

[Hugo S. Cunningham]

The Thirteenth Amendment eliminated any Federal *requirement* to compensate slave-owners. The Fourteenth Amendment eliminated any *option* for Federal or State Jim-Crow politicians to tax loyal Unionists on behalf of slave-owners.

[Syd Henderson]

The 13th Amendment legalized the 13th Amendment. And also the Emancipation Proclamation.

[John F. Carr]

If the southern states were under martial law Lincoln had more authority there than he had in peacetime.

[Dr. Ed 2]

ONLY while they were under martial law.

[David Nieporent]

.

It took the 14th Amendment to legalize the 13th.

This is utter gibberish. It doesn't even rise to the level of gibberish. It makes gibberish look like Cicero.

[F.D. Wolf]

In the beauty of the lilies Christ was born across the sea,
With a glory in His bosom that transfigures you and me.
As He died to make men holy, let us die to make men free,
While God is marching on.

That is the last verse of the Battle Hymn of the Republic, written by Julia Ward Howe in 1861. “Let us die to keep Alabama in the Union,” just wouldn’t have had quite the same ring.

[ReaderY]

[Kleppe]

The Emancipation Proclamation freed zero slaves. Many people will respond to this by observing that the slaves were in the southern states so naturally Lincoln’s order had no effect. But the E.P. also did not apply to slaves held by the federal government, so it was deliberately, doubly pointless.

[bernard11]

Actually, the Emancipation Proclamation freed slaves in areas controlled by the Union forces, and of course many slaves elsewhere escaped to Union-held territory.

[Kleppe]

It didn't even free the slaves in Union slave states! It did literally nothing. And LOL yes, slaves who escaped were free, that was already the case.

[David Nieporent]

.

It didn’t even free the slaves in Union slave states!

Correct. Because Lincoln had no legal authority to do that. It only freed the ones in states in rebellion, where Lincoln could use his authority as CinC to give such an order.

And LOL yes, slaves who escaped were free, that was already the case.

Incorrect. Slaves who escaped were escaped slaves, not freedmen. They were returned to their 'owners' if/when captured. Slaves freed by the Emancipation Proclamation were not returned, because they were free, so they no longer had 'owners.'

[Tom for equal rights]

Emancipation proclamation declared that the slaves in southern states in areas not under federal control were freed. Which means that the EP freed no slaves.

[Tom for equal rights]

Kleppe - further the EP only declared slaves in southern states in areas not under union control were freed. So you are correct, virtually no slaves freed by the EP

[bernard11]

This is not true.

That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; ….

Now, therefore I, Abraham Lincoln,…., do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, ….. order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:

Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.

And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

IOW, Lincoln designated certain states and parts of states to be in rebellion, and freed the slaves in those places. Parts of those places were in fact occupied by the Union Army.

[David Nieporent]

The Emancipation Proclamation freed millions of slaves. That their chains did not instantaneously drop away on January 1, 1863, does not mean that it didn't free them.

[Kleppe]

"The Emancipation Proclamation freed millions of slaves."

Source for this false claim?

[Tom for equal rights]

Torturing the term "freed"

[CJColucci]

The mainstream legal view at the time, which Lincoln shared, is that the federal government could not meddle with slavery in states where it existed. The Republicans ran not on abolition but on forbidding the introduction of slavery into the territories or the future states that would be formed from them, a fairly radical position, utterly unacceptable to the South. The only reason Lincoln thought he could issue the Emancipation Proclamation at all was the war power, which would not allow him to free slaves in areas not at war with the United States (leaving aside Congress's plenary power over the District of Columbia or negotiated deals with slave states within the Union).
The Thirteenth Amendment changed the Constitutional calculus. One of my crackpot theories is that the Thirteenth Amendment also emancipated the Commerce Clause. A frequent antebellum argument against expansive views of the commerce power is that they would permit federal regulation, or even abolition, of slavery. Under the now dominant view of the commerce power, however, Congress could probably abolish slavery, or make it economically useless by forbidding the sale in commerce of goods or services produced by slaves. But such a view could not have arisen until the destruction of slavery.