Lincoln and Emancipation: Constitutional Theory, Practical Politics, and the Basic Practice of Law PAUL FINKELMAN Abraham Lincoln is, by any measure, our greatest President. Whenever we are asked to rank our Presidents, Lincoln comes out on top. This makes sense. His job, leading the nation through four years of Civil War, was the hardest of any President and he accomplished it so stunningly well: winning the War, preserving the Union, and ending slavery. His reputation is mostly a function ofthe challenges he faced and the success he had in leading the nation. That he was a tower ing giant surrounded by six decades of Lil liputian Presidents is also a factor.1 So too was his incredible use of language. Lincoln’s Sec ond Inaugural is one of the greatest speeches ofnineteenth-centuryAmerica; his Gettysburg address helped resurrect the core values ofthe Declaration of Independence while providing a higher meaning than even nationalism for the Civil War. Lincoln’s martyrdom made him mysterious, tragic, and heroic. Finally, of course, Lincoln’s place in his tory rests on his role as the Great Eman cipator.2 With a stroke of his pen, Lincoln brought liberty to about three million slaves. The Emancipation Proclamation was essen tially a political document in the guise of a war measure. But for Lincoln, the Proclama tion was also a constitutional document. It re flected his constitutional thought and under standing, filteredthroughthe reality ofthe War and political conditions. In March 1861, Lin coln declared—honestly and correctly—that he had no constitutional power to touch slav ery where it existed. A year and a halflater, in September 1862, he declared—honestly and correctly—that he did, in fact, have the con stitutional power to attack slavery in the Con federacy and order the emancipation of about three million slaves.3 244 JOURNAL OF SUPREME COURT HISTORY Lincoln’s Proclamation did not, and could not, end all slavery in the United States. To tal emancipation required military success and the Thirteenth Amendment. Furthermore, Lin coln was hardly the only agent in the process. Tens of thousands of slaves left their own ers during the War and ran to the protective shield of the United States Army. From day one of the War, slaves, former slaves, and free blacks participated in the military effort as guides, spies, civilian workers, and ultimately uniformed soldiers. The more than 200,000 blacks who served the Union cause made sig nificant contributions to victory and liberty. Moreover, as Ira Berlin has argued, simply by showing up at military bases, slaves left United States soldiers no choice but to of fer them shelter and protection. Berlin fur ther argues that slaves, by their very pres ence, helped shape military policy, and that in turn helped shape civilian policy. Slaves “did what they could to secure” freedom, “throwing their full weight behind the Federal cause, volunteering their services as teamsters, stable hands, and boatmen; butchers, bakers, and cooks; nurses, orderlies, and laundresses; blacksmiths, coopers, and carpenters; and, by the tens of thousands, as common laborers.”4 Slaves cared for the wounded and helped bury the dead, doubtless saying their own prayers to speed the blue-clad liberators on to their final destiny. Similarly, Congress played a role in end ing bondage, with two confiscation acts, the immediate end of slavery in the District of Columbia through compensated emancipa tion, an act ending slavery in the Territo ries without any compensation, the repeal of the federal Fugitive Slave Laws in 1864, and other measures. Most importantly, in early 1865 Congress sent the states the Thirteenth Amendment, which permanently ended slav ery everywhere in the United States. The states played their proper role by ratifying the Amendment in less than a year. Finally, of course, the Army and Navy made emancipa tion possible. Without military victory, eman cipation would have been impossible, or at least incomplete. Butwithout a viable constitutional andpo litical theory that allowed Congress, the Army, and the President to free slaves, emancipa tion could not have happened. A number of people helped shape these theories, including Lincoln’s abolitionist Secretary of the Trea sury, Salmon P. Chase; one of his political generals, Benjamin...
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