Emancipation Proclamation (1863)

On January 1, 1863 President Abraham Lincoln issued the Emancipation Proclamation, which declared that slaves living in most of the Confederate states were forever free. The Proclamation was certainly one of the most important advances in civil liberties, because it provided for freeing from slavery millions of African Americans. At the same time, from the perspective of slave owners, the proclamation was a huge violation of civil liberties because it took their ‘‘property’’ away from them without any compensation. From the perspective of constitutional law, the Proclamation was extremely problematic. The Constitution prohibited the government from taking private property without compensation. Furthermore, the Constitution protected slavery a variety of ways and the Supreme Court, in Dred Scott v. Sandford (1857), had held that slavery was a privileged form of property deserving of special constitutional protection. Finally, it was not at all clear that under the Constitution the president ever had power to unilaterally act in such a way as to deprive citizens of their property.

President Lincoln understood all of these issues, and thus he drafted the Proclamation carefully. He excluded from the Proclamation those portions of the Confederacy, such as New Orleans and parts of Virginia, which were under the control of the United States. In the rest of Confederacy, Lincoln acted in his capacity as commander-in-chief of the Army to emancipate all slave on the grounds they constituted a military asset to those states in rebellion.

By proceeding in this manner, Lincoln avoided a number of constitutional pitfalls. Since he acted as commander-in-chief, he presumably did not need any authorization from Congress. Clearly Lincoln could order the Army to destroy or confiscate the property of Confederates in order to suppress the rebellion. Freeing the slaves was simply another form of destroying property that those in rebellion were using to make war on the United States. Lincoln could plausibly argue that the Constitution was in force where the Confederate government operated. Thus, by limiting the Proclamation to those regions of the United States that were under the control of the Confederates, Lincoln could argue that emancipation was not a ‘‘taking of private property’’ as contemplated in the Fifth Amendment, because the Constitution was not in force in the Confederacy. Alternatively, he could argue that the writ of habeas corpus had been suspended in all of those states in rebellion, and thus the military could seize property (and emancipate slaves) as needed to suppress the rebellion.

Each of these theories was sufficient to justify freeing the slaves of rebel masters while the war was in progress, but it was not clear what would happen to the emancipated slaves when the war ended. Lincoln had some reason to believe that the Supreme Court might overturn the Proclamation, or enforce a judgment against the United States for taking private property without just compensation in violation of the Fifth Amendment. This was especially plausible because the Supreme Court was still dominated by pro-slavery justices, and continued to be until led by Chief Justice Roger B. Taney, the author of the Dred Scott decision. Thus, Lincoln was delighted when Congress passed the Thirteenth Amendment and sent it on to the states for ratification. Once ratified, this Amendment freed all remaining slaves in the nation and prevented any former masters from making any claims on the U.S. government for the value of their emancipated slaves.

The Emancipation Proclamation was the most significant antislavery action by the U.S. government until the adoption of the Thirteenth Amendment. The Proclamation freed millions of slaves. That freedom, however, would only be secured as the U.S. Army moved deeper in the South, crushing the rebellion. However, after January 1, 1863, the nature of the Civil War was permanently altered. It was still a war to preserve and restore the Union. But, after that date it was also a war to extend the most fundamental civil liberty—freedom to millions of African Americans who were held in slavery. After Lincoln issued the Proclamation, the U.S. Army became the greatest army of liberation the world had ever known, bringing liberty everywhere it went.


References and Further Reading

  • Franklin, John Hope. The Emancipation Proclamation. Garden City, NY: Doubleday, 1963.
  • McPherson, James. Battle Cry of Freedom. New York: Oxford University Press, 1988.

Cases and Statutes Cited

  • Dred Scott v. John F.A. Sandford, 60 U.S. (19 How.) 393 (1857)


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