Was Emancipation Constitutional?

Noah Feldman, the Felix Frankfurter Professor of Law at Harvard, believes that the eleven slave states that seceded from the Union and formed the Confederacy in 1861 had a constitutional right to do so. That, he says, is what James Madison, sometimes referred to as “the Father of the Constitution,” would have believed. By contrast, Abraham Lincoln’s decision to coerce the seceded states back into the Union was a clear violation of the Constitution, and the first of his three brazenly unconstitutional actions as president. The second was his suspension of habeas corpus and use of military tribunals to silence his political opposition. In doing these things, Feldman says, Lincoln effectively made himself into a “constitutional dictator.”

Such violations interest Feldman chiefly because Lincoln had always claimed to be a strict adherent of the Constitution, even if that meant he had to preserve slavery despite his moral objection to it. Indeed, his respect for the proslavery compromises made by the Founders was so deep that only after two flagrant repudiations of constitutional restraint was Lincoln willing to undertake his third and most extraordinary violation of the Constitution, the Emancipation Proclamation. As Feldman sees it, Lincoln broke an already broken Constitution, thereby paving the way for the Thirteenth Amendment, which abolished slavery everywhere in the United States.

Most historians, when they seek the origins of the Emancipation Proclamation, trace the radicalizing effect of the Civil War on federal antislavery policy. Only weeks after the war began, the Lincoln administration decided not to return to their owners three slaves who had escaped to Fortress Monroe in Virginia. Over the course of the next year Congress passed two statutes mandating the permanent “confiscation” of the rapidly growing number of slaves who were coming into Union lines from disloyal states and disloyal owners. In August 1861 the Lincoln administration began instructing Union generals that such slaves were emancipated. Although tens of thousands were thereby liberated in the first eighteen months of the war, some Union soldiers violated the policy and returned escaping slaves.

In early 1862 Congress made it a crime for anyone in the Union Army or Navy to participate in the capture or return of fugitives. Shortly thereafter it abolished slavery in Washington, D.C., banned slavery from the western territories, and required West Virginia to abolish slavery as a condition for admission to the Union. Lincoln meanwhile refused to stay the first execution of an American slave trader sentenced to death. His secretary of state, William Seward, also negotiated a treaty, ratified by Congress, that would lead in a few years to the final suppression of the Atlantic slave trade. Viewed in light of these policies adopted early in the war, the Emancipation Proclamation appears as the climax in a series of increasingly radical attacks on slavery.

For some historians, it was the escaping slaves whose swelling numbers forced the radicalization of federal antislavery policy. Others cite the indispensable involvement of the Union Army. And still others, myself included, trace changes in policy back to their origins in the antislavery movement. These interpretations are not mutually exclusive, and there is widespread agreement that the ever more aggressive attacks on slavery led to Lincoln’s proclamation of January 1, 1863. At that point, the historian Allan Nevins wrote years ago, war became revolution.

This is the familiar narrative arc that Feldman seeks to replace by relocating the much-needed Thirteenth Amendment to the end of a succession of constitutional violations. He does not doubt that the war became an antislavery revolution, but he doubts that this had much to do with escaping slaves, the behavior of the Union Army, or the longer history of antislavery politics. The progression from the earliest decision not to return fugitives to the Emancipation Proclamation was hardly inevitable, he notes, nor was it even legally or logically necessary. In a sense, of course, he’s correct. History doesn’t proceed according to legal or logical necessity. But neither was there any legal or logical necessity, much less inevitability, in the progression Feldman describes, from coercing seceded states back into the Union to issuing the Emancipation Proclamation.

Yet Feldman does appear to believe that once Lincoln made the fateful decision to abandon constitutional restraint by issuing his illegal proclamation, the path was cleared for the amendment that would replace the proslavery provisions of the Founders’ Constitution. To make his case, however, he must discount much more than the history of accelerating antislavery policy during the Civil War. He must expunge the entire record of antislavery constitutionalism stretching back to the founding era.

Feldman begins with a chapter on what he calls “the compromise Constitution,” that is, the Constitution that he believes protected slavery and made it a permanent feature of American society. It is worth noting that when Feldman uses the word “compromise,” what he actually means is “capitulation.” Most historians who describe the Constitution as a compromise accept that proslavery and antislavery delegates at the constitutional convention actually compromised with one another. In return for Congress’s right to ban slavery from the western territories, for example, the slaveholders secured the right to recapture fugitives who escaped into free states. Opponents of slavery at the convention did not want any slaves counted for purposes of representation and taxation, whereas the proslavery delegates wanted all the slaves counted.

The result was the notorious “three-fifths” clause, in which neither side got all it wanted. Delegates from the lower South threatened to walk out if Congress were given any power to regulate the slave trade. After objections from antislavery delegates, however, Congress secured the power to ban the slave trade—the first such provision in history—but not until 1808. These are the major compromises between proslavery and antislavery delegates that nearly all historians agree were embedded in the original Constitution of 1787.

But Feldman describes no such give-and-take and disregards all evidence that the antislavery delegates had any influence at the convention. He claims, for example, that the slave trade clause was “included in the Constitution at the insistence of South Carolinians,” when it was quite clearly included at the insistence of antislavery delegates. One would scarcely notice, reading Feldman’s book, that the Constitution gave Congress the power to ban slavery from the western territories—a power that, more than any other, prompted decades of escalating tension between the North and the South. Nor does Feldman even hint that proslavery and antislavery forces developed very different understandings of what the fugitive slave clause actually meant. This last dispute matters because it raised the single most important legal issue in the decades-long debate over slavery—whether the Constitution recognized slaves as property or as persons.

Sean Wilentz has demonstrated that the slaveholders at the constitutional convention tried and failed to get slaves recognized as property in the Constitution.¹ Years later, however, southerners claimed that the fugitive slave clause vested owners with the very right they had been denied in 1787. Antislavery northerners flatly rejected this and insisted, as Lincoln put it, that “no such right” to slave property existed in the Constitution, even by implication. It is impossible to understand the origins of the Civil War, or of wartime emancipation policy, without grasping the significance of the debate over “property in man.” Among slavery’s opponents, the fact that slaves were referred to in the Constitution as persons and never as property—even in the fugitive slave clause—had profound implications, which Feldman simply ignores.

He likewise ignores two of the most important constitutional principles regarding slavery, neither of which is explicitly stated anywhere in the document. The first was federalism, which left the regulation of slavery entirely to the states. None of the well-known constitutional clauses dealing with slavery restricted the scope of antislavery politics as effectively as the assumption that slavery was a state institution, beyond the power of the federal government. The second principle was the war powers, ascribed to the Constitution despite the fact that there is no actual war powers “clause.” The war powers removed federalism’s restraints on Congress and the president. By this reading of the Constitution, the federal government could emancipate slaves in an effort to defeat an invading army or suppress a rebellion.

Proslavery and antislavery readings of the Constitution were already evident during the debates over ratification and persisted through the Civil War. Southerners eventually claimed that the constitutional right to slave property was so absolute that Congress could neither abolish slavery in Washington, D.C., nor ban it from the territories—indeed that it was obliged to protect slavery in the territories. But those arguments were stillborn if the Constitution recognized slaves as persons rather than property. If they were persons, they were entitled to due process rights when they escaped to the free states, for example. Legal personhood also meant that slaves taken into the free states by their owners could be automatically emancipated, and that slavery was unconstitutional on the high seas and in the territories.

None of this appears in Feldman’s account of slavery and the Constitution. He claims that “Northerners could not quote the Constitution to oppose slavery, because the Constitution said nothing against the practice.” Instead they were forced to rely on the airy platitudes about fundamental human equality in the Declaration of Independence, “the best—really the only—text they could invoke to claim an official pedigree for their moral stance.”

Actually, opponents of slavery not only cited the Constitution’s repeated references to slaves as “persons”; they invoked numerous other clauses as well. They quoted the Constitution, chapter and verse, when they claimed that Congress had the power to ban slavery from the territories or abolish slavery in Washington. They endlessly cited the Fifth Amendment’s declaration that no “person” could be deprived of liberty without due process of law. They invoked the Fourth Amendment’s ban on unreasonable seizure and regularly quoted the Preamble, with its claim that the purpose of the Constitution was to “secure the blessings of liberty” to everyone. It is certainly true that opponents of slavery—not least of them Lincoln—always recited the words of the Declaration of Independence, but they argued that the principle of fundamental human equality was “embedded” in the Constitution. There are several references to the Constitution in the Republican Party platform on which Lincoln ran for president.

It would be one thing if Feldman argued, on originalist grounds, that the defenders of slavery had the better case. Perhaps Chief Justice Roger Taney was right when he claimed that the Constitution “expressly” protected slaves as property and that as such they were not entitled to the due process rights of legal persons in the free states or territories. There are reputable scholars who make this sort of argument. By this reasoning Lincoln and his fellow antislavery constitutionalists might have been on the right side of history, but the “original” Constitution was the proslavery atrocity that the abolitionist William Lloyd Garrison denounced.

One problem with Garrison’s sort of originalism is that the original meaning of the Constitution, certainly with regard to slavery, was contested from the earliest years of the republic. During the debates over its ratification, the Constitution’s proslavery opponents often denounced it as an existential threat to slavery, and its antislavery supporters sometimes hailed it as a harbinger of slavery’s abolition. Still others defended or denounced it because it protected slavery. Yet Feldman barely mentions these conflicting interpretations in The Broken Constitution. Antislavery constitutionalism was the majority view among northerners, but Feldman restricts it to a tiny group of misguided radicals and quickly hurries them offstage to make room for those who believed the Constitution was thoroughly compromised by its protections for slavery—among them Lincoln, whose proslavery reading of the document was in Feldman’s view more historically accurate.

By disregarding the substantial conflict over the Constitution, Feldman frees himself to discount the origins of wartime antislavery policy. He begins with Lincoln’s promise not to “interfere” with slavery in the states where it existed, a promise known to scholars as the “federal consensus” because nearly everyone—from Garrison to the fiercely proslavery John C. Calhoun—agreed that the federal government could not interfere with (that is, abolish) slavery in a state, any more than it could interfere with emancipation in a state. Like marriage and indentured servitude, slavery was a state institution. But the federal consensus did not prevent Congress from attacking slavery indirectly in a variety of ways. Republican Party platforms across the northern states were replete with endorsements of a host of federal policies designed, in Lincoln’s words, to put slavery “in the course of ultimate extinction.” Rather than explore the implications of Lincoln’s utterly conventional avowal of federalism, however, Feldman misleadingly paraphrases it as a promise “to protect slavery.”

But promising not to abolish slavery in a state was not the same thing as promising to protect it. By the time Lincoln became president, he had endorsed the complete ban on slavery in the territories, drafted legislation to abolish slavery in Washington, called for aggressive suppression of the illegal slave trade, and suggested revising the fugitive slave law to protect the due process rights of accused fugitives. In 1859 he warned that if slave states seceded from the Union, they would forfeit their constitutional right to recover their fugitive slaves, and he repeated this warning in his first inaugural address. Secede from the Union, Lincoln declared, and your fugitive slaves, “now only partially surrendered, would not be surrendered at all.” None of this suggests that Lincoln came into office promising to “protect slavery.”

Most significantly, Lincoln forcefully rejected the claim that the Constitution recognized slave ownership as a right of property. This was one of the central themes of his famous speech at the Cooper Institute in early 1860, which helped him secure the Republican Party’s nomination as president later that year. Southerners asserted a right to bring their slave property into the territories, but the Constitution “is literally silent about any such right,” Lincoln declared. “We, on the contrary, deny that such a right has any existence in the Constitution.” Nowhere does the Constitution refer to slaves as property, Lincoln went on. Instead, “wherever in that instrument the slave is alluded to, he is called a ‘person.’”

It’s hard to imagine how Lincoln could have been clearer. Yet Feldman completely ignores his emphatic repudiation of “property in man” and instead dismisses the speech as “strange,” “fairly bland,” based on “mildly tendentious legal reasoning,” and an “odd performance.” Feldman goes on to imply that the Constitution recognized slaves as property and, inexplicably, attributes that view to Lincoln. This is at best misleading. Everyone knew that to be a slave was to be defined in southern state law as property—as chattel personal. What Lincoln and nearly all opponents of slavery insistently denied was that slaves were recognized as property in constitutional law.

Southern secessionists had a clear understanding of who they were up against. They scorned Lincoln’s promise not to “interfere” with slavery directly because he and his fellow Republicans were simultaneously promising to interfere with slavery indirectly. Feldman dismisses such indirect attacks as trivial on the grounds that they could not possibly have led to the destruction of slavery. Yet the claim that indirect assaults on slavery might not have worked is largely beside the point, because it was the antislavery constitutionalists’ promise to attack slavery indirectly that led, directly, to secession and civil war. The historical significance of antislavery constitutionalism cannot be dismissed by means of a counterfactual hypothesis that erases the Civil War.

The slave states began leaving the Union shortly after Lincoln’s victory, claiming that the northern voters had elected a president who denied that the slaveholders had a constitutional right of “property in man.” He represented a party committed to slavery’s ultimate extinction, a party that would readily do indirectly what it could not do directly. Feldman, however, believes that secession should not have led to the Civil War because Lincoln had no constitutional right to employ coercion against the seceded states. This is where he begins building an alternative account of the origins of the Emancipation Proclamation. By obliterating the entire history of antislavery politics and the effect it might have had on wartime antislavery policy, Feldman has, as it were, cleared the decks for his alternative interpretation—Lincoln’s successive violations of the Constitution.

Lincoln’s immediate predecessor, James Buchanan, argued that although a state had no legal right to secede, the federal government had no power to force a state back into the Union. According to Feldman, Buchanan’s interpretation more accurately reflected the views of the Founders, in particular Madison. By contrast, Lincoln’s justification of coercion was a “novelty,” Feldman writes, that contradicted “the basic idea of American constitutionalism”: the consent of the governed. The secession conventions of the southern states “had made it as clear as humanly possible” that they had withdrawn their consent to be governed by the United States. Yet Lincoln insisted that the Constitution “did not allow the withdrawal of consent by the people of the states.”

This glosses over a number of complications. The Constitution says nothing about secession, so Buchanan’s claim was as much a novelty as Lincoln’s. Unable to cite the Constitution, Feldman instead cites Madison. But Madison said different things at different times. During the ratification debates he insisted, as did his fellow Federalists, that a state could not ratify the Constitution conditionally. On the contrary, he wrote in a letter to Alexander Hamilton, “the Constitution requires an adoption in toto and for ever.” Madison’s remarks were read aloud at New York’s ratification convention and subsequently published throughout the country. Opponents of the Constitution repeatedly warned that once a state entered the Union it would be unable to withdraw, and supporters of the Constitution never denied it. If there was an original understanding about secession, there is at least some evidence suggesting that Lincoln got it right: the Union was perpetual.

Nor did Lincoln clearly reject the will of the people, unless one assumes that “the people” did not include northerners or that secessionists, in repudiating the valid results of a legitimate presidential election, were not repudiating the will of the people. Feldman writes as if there were no such thing as the nation and restricts popular will to the secession conventions in the southern states. Even leaving aside the will of the enslaved population of those states, the issue is not nearly as straightforward as he would have it. Lincoln believed, for example, that, with the possible exception of South Carolina, the majority of southern whites did not support secession.

It was a standard theme of antislavery politics that 400,000 slaveholders held undemocratic sway over 30 million Americans, and still more undemocratic sway over 12 million southerners. A recent study suggests that the electoral systems devised for the secession conventions were systematically rigged to suppress the votes of nonslaveholders.² The extent of popular support for secession among white southerners is still hotly debated among historians, but no one doubts that Lincoln believed—whether rightly or naively—that the secessionists did not represent the will of the southern people.

Feldman is on firmer ground in his discussion of Lincoln’s suspension of habeas corpus and the imposition of martial law in large parts of the North, but he undermines his argument by his repeated assertion that Lincoln set himself up as a dictator. Lincoln suspended habeas corpus for the first time in the earliest weeks of the war, and his subsequent suspensions eventually covered the entire country. He allowed military trials in parts of the Union where the courts were functioning, a clear violation of the Constitution. His subordinates went so far as to arrest opposition politicians and close opposition newspapers. Few would dispute David Herbert Donald’s observation that the Civil War years brought “greater infringements on individual liberties than in any other period in American history.”³

The Constitution does, however, allow for the suspension of habeas corpus in the event of rebellion, and it would be foolish to pretend that Lincoln did not confront the largest rebellion in the nation’s history. The suspension clause is in Article I of the Constitution, which specifies the powers of Congress, and on that basis Feldman endorses Chief Justice Taney’s claim that Lincoln had no constitutional right to suspend habeas corpus. Taney’s reasoning, Feldman declares, “was so powerful that it was almost irrefutable.” But more sober legal scholars—G. Edward White, for example—point out that the suspension clause was placed in Article I almost incidentally, with no real thought given to limiting executive authority. Feldman is surely correct that Lincoln trivialized habeas corpus by referring to it as merely “one single law” among many, rather than the bulwark of civil liberty it has always been. But it was not entirely unreasonable for the president to conclude that the Founders could not have meant to paralyze the government by requiring the country to suffer rebellion and invasion for the six months of the year that Congress was out of session.

Feldman cites the familiar estimate that during the Civil War as many as 38,000 Americans were arrested without recourse to the courts. But he does not point out that the overwhelming majority of them were Confederates, spies, blockade runners, or smugglers—traitors actively engaged in the rebellion. Feldman instead highlights the relatively few arrests of opposition politicians and newspaper editors and dismisses Lincoln’s justifications as “paranoid—even unhinged.” Lincoln, he says, used “terms that would sound familiar in any dictatorial regime.” Eric Foner, hardly a Lincoln apologist, offers a more reasoned assessment: “Lincoln was no dictator,” he writes.

Elections took place as scheduled throughout the war, and the Democratic press continued to criticize the administration in the harshest terms. But neither did he possess a modern sensitivity to the importance of civil liberties.⁴

Having offered his readers a misleading account of secession and an indictment of Lincoln’s record on civil liberties, Feldman turns to the the most controversial thesis of his book, the alleged illegality of the Emancipation Proclamation. To appreciate the uniqueness of his analysis, some historical background is required, not least because it is entirely missing from The Broken Constitution.

Beginning with the Treaty of Paris of 1784, which ended the Revolutionary War, the United States repeatedly acknowledged the right of belligerents to emancipate the slaves of enemies during wartime. In debates over British reparations in the 1790s, every member of Congress who addressed the issue, along with every member of President George Washington’s cabinet who spoke up, acknowledged the legitimacy of military emancipation in wartime. In the 1830s former president John Quincy Adams, who had returned to the House of Representatives, stoutly affirmed that the constitutional war powers would allow the federal government to emancipate southern slaves should the US military be called upon to repel an invasion or suppress an insurrection. During the secession crisis antislavery congressmen quoted Adams, to the horror of their southern colleagues, and shortly after Lincoln’s inauguration Senator Charles Sumner—who was well versed on the legal status of slavery in wartime—visited the White House to instruct the new president that the war powers of the Constitution authorized him to emancipate the slaves of rebels.

As the war progressed, reputable legal scholars, notably William Whiting, weighed in with substantial tracts spelling out the president’s constitutional power to emancipate slaves. But the most important legal defense of emancipation was contained in the Lieber Code. In December 1862, weeks before Lincoln issued the Emancipation Proclamation, two of the highest-ranking officials in his administration—General-in-Chief Henry Halleck and Secretary of War Edwin Stanton—asked Francis Lieber, a renowned professor of law at Columbia College, to revise the American military’s Articles of War. The result was General Orders No. 100, known as the Lieber Code.

Because state and local laws were suspended when armies occupied enemy territory, Lieber argued, fugitives escaping from the disloyal slave states to “the military forces of the United States” were “made free by the law of war” and, once freed, could never be re-enslaved. Halleck, himself an expert on the laws of war, edited the code to ensure that it was consistent with Lincoln’s emancipation policy, and it was released in April 1863. With that, the well-established legal justification for military emancipation was formalized in American law.

But readers of The Broken Constitution will find no reference to any of this. William Whiting appears nowhere and the Lieber Code’s defense of emancipation is not even mentioned. Instead, Feldman claims that Lincoln never offered a plausible legal justification for the Emancipation Proclamation other than “military necessity.” He says that Lincoln’s critics never accused him of acting in bad faith, when in fact they repeatedly claimed that the president’s defense was fraudulent because emancipation was never militarily necessary. Feldman simply ignores the long-standing American consensus in support of military emancipation and instead endorses the views of proslavery Confederates who denied its constitutionality.

Ignoring most of the legal arguments and nearly all the precedents for wartime emancipation, and garbling Lincoln’s fairly consistent references to them, Feldman instead declares that emancipating slaves was a patent violation of property rights, that everyone understood this, that the Emancipation Proclamation was Lincoln’s most outrageous abuse of the Constitution, and that Lincoln knew all along that it was illegal.

Most reputable scholars agree that Lincoln expanded the war powers of the presidency far beyond their previous limits. No chief executive had ever called up an army of 75,000 to suppress a rebellion without prior congressional authorization. None of Lincoln’s predecessors, or for that matter successors, dared suspend civil liberties so broadly. No one had ever come close to expanding the reach of military emancipation to more than three million enslaved people. But it does not follow that the Constitution required Lincoln to passively accept the dismemberment of the Union. He was no dictator. And his Emancipation Proclamation was an extension of well-established legal and historical precedents.

Feldman is surely right that the Constitution was radically transformed by the addition of the Thirteenth Amendment, effectively undoing the compromises the supporters and opponents of slavery made in 1787. But he could have made that point without ignoring the voluminous historical evidence that would have added some much-needed nuance to his thoroughly unpersuasive analysis.