Law Life: The great emancipator - no asterisk


By Eric S. Giroux

The Daily Record Newswire

Abraham Lincoln considered slavery to be a "monstrous injustice." He ranked it the lowest among wrongs and explained, "I can not remember when I did not so think, and feel."

He understood that some earlier Americans had felt the same and thus decried the "obvious violence" that Chief Justice Taney did to the Constitution and the Declaration of Independence when he asserted in his Dred Scott opinion (1857) that in the view of the founders, blacks were "so far inferior that they had no rights which the white man was bound to respect."

The next year, Lincoln confronted Senator Stephen A. Douglas in their famous senatorial debates. Douglas had pushed through the Kansas-Nebraska Act (1854), allowing settlers the right to vote to admit slavery into those territories for the first time. Lincoln argued that Douglas's popular sovereignty doctrine effectively blessed slavery and charged his opponent with "blowing out the moral lights around us" by pretending it did not.

Yet, as president, Lincoln initially pursued a middle course in confronting the secession of the Deep South, which happened in the months following and directly in response to his own election.

On the one hand, he refused to compromise the party's "constitutional right" to govern according to its 1860 platform opposing slavery's extension, even if this seemed likely to avert war. Lincoln would not yield on his fundamental position that slavery was a moral, political, and social evil that had to be confined, with the goal of triggering its long-term demise.

"On that point hold firm, as with a chain of steel," he advised in a letter to leading Republicans in Washington, who faced heavy pressure. "The tug has to come, & better now, than any time hereafter."

Enforcing this commitment, Lincoln crushed, simply by withholding support, Kentucky Senator John C. Crittenden's proposal of a series of constitutional amendments protecting slavery. These included an amendment purporting to prohibit the Constitution from even being amended to abolish slavery.

On the other hand, once fighting erupted, Lincoln rejected early calls to expand his mandate and make the Civil War a war for liberation. Lincoln possessed a highly sensitive political barometer telling him that emancipating the slaves risked abandonment of the war by a fair cross-section of the North. He also questioned his constitutional authority for emancipating slaves and how, practically speaking, it could be accomplished.

For the time being, he reserved the issue. In 1861, Union generals began designating slaves entering their lines as "contraband" and the Confiscation Act attempted to nationalize the policy, but Lincoln rescinded the orders of Generals John C. Fremont and David Hunter liberating slaves altogether in several states. In 1862, the Second Confiscation Act liberated the slaves of those who refused to surrender, but Lincoln initially opposed allowing freed blacks to serve in fighting roles.

Gradually, the barometer moved. The North's failure to include emancipation as a war aim undermined potential support in Britain, while courting Napoleon III's formal recognition of the Confederate States of America. It also tempered the commitment of abolitionists and of whites who had little sympathy for slaves but resented the "Slave Power" represented by the aristocratic planters who controlled the South.

In June of 1862, Lincoln responded. One day, he stepped into the cipher room in the telegraph office of the War Department and asked for a piece of paper. He sat down at a desk overlooking Pennsylvania Avenue and, away from the interruptions of the White House, began to write. At the end of his session, he asked the on-duty major to hold the document in confidence. A few weeks later, after numerous days of secret drafting, he had completed the text of the Preliminary Emancipation Proclamation, which declared as free, for the stated purpose of military necessity, all slaves in those areas still in rebellion as of January 1, 1863.

Lincoln presented his work to his cabinet, telling its members that he had resolved to issue the Proclamation irrespective of their views. He bowed, however, to Secretary of State William H. Seward's shrewd suggestion to hold off until there was a Union victory so that it did not appear, in Lincoln's words, the "last shriek, on the retreat."

Meanwhile, Lincoln readied an ambivalent country, writing to Horace Greeley for publication in Harper's Weekly that his ultimate constitutional duty as president was to reunite the nation.

"I would save the Union. I would save it the shortest way under the Constitution. . . .. 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 do that."

At the end of the letter, he added, "I have stated here my purpose according to my view of official duty; and I intend no modification to my oft-expressed personal wish that all men every where could be free."

Lincoln issued the Preliminary Proclamation to the public on September 22, 1862 and signed the Final Emancipation Proclamation on the first day of the New Year, endorsing the enlistment of blacks in the armed services as an additional refinement. ( The Final Emancipation Proclamation also elided Lincoln's idiosyncratic proposal for voluntary colonization of blacks which in a pessimistic turn he had considered a plausible solution to the problem of racial hatred in America. Almost no one agreed with him. A separate space would be required to give fair treatment to Lincoln's views on race. An accurate general description is that on issues of civil rights he continued a progressive evolution up to the last days of his life, while still falling short of today's ideal of racial egalitarianism, an ideal to which some of Lincoln's white contemporaries, albeit a very slim minority, subscribed.)

It is an impassioned document coded in dry legalese in order to appear otherwise. Lincoln did believe it was militarily beneficial, and it was. But he also embraced its emancipatory purpose. Lincoln said, just before signing it, "If my name ever goes into history, it will be for this act, and my whole soul is in it."

The Emancipation Proclamation freed relatively few slaves immediately, approximately 50,000. Most covered slaves remained on Confederate terrain. Some have noted this, together with Lincoln's emphasis on military necessity, as a reason to qualify Lincoln's achievement as an emancipator. Europe's leaders and most contemporary Americans understood quickly, however, that the Proclamation had transformed the war. For Lincoln, it was irreversible. When some urged him late in the war to rescind the Proclamation and return blacks to slavery as an election-year gambit, Lincoln demurred.

"I would be damned in time and in eternity for so doing," he said. "The world shall know that I will keep my faith to friends and enemies, come what will."

At Gettysburg, Lincoln finally fused beneath the banner of freedom the war's twin purposes, Union and Liberty. The war was to preserve government "of the people, by the people, for the people." This encompassed the "new birth of freedom" represented by emancipation, not just holding together the United States. (This is not to denigrate the Union as a war aim in itself. As James M. McPherson explains in a recent piece in the The New York Review of Books, "[w]e rarely speak of the 'Union' today except when referring to a labor organization. But to mid-nineteenth-century Americans 'Union' carried powerful meanings, analogous to 'nation' and 'country.' It 'represented the cherished legacy of the founding generation, a democratic republic with a constitution that guaranteed political liberty and afforded individuals a chance to better themselves economically,' writes [Gary W.] Gallagher [in The Union War (Harvard 2010)]. In this view of the Union, 'slaveholding aristocrats who established the Confederacy . . . posed a direct threat not only to the long-term success of the American republic but also to the broader future of democracy.'")

If Lincoln was not already the Great Emancipator, he became that in his last months. Following his landslide re-election in 1864, Lincoln lobbied hard for passage of the Thirteenth Amendment abolishing slavery throughout the United States. He wielded his claimed mandate against reluctant Democrats and traded favors and emoluments and log rolled for their needed votes in the House of Representatives. On January 31, 1865, the amendment passed the House with two surplus votes to thundering applause. In retrospect it was a kind of grand finale of Lincoln's presidency and life.

Reviewing Lincoln's actions on emancipation, Frederick Douglass concluded as follows:

"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."

In the spring of 1865, Lincoln gave a public speech to a crowd gathered beneath a window to the White House in which he endorsed extending the right to vote to literate blacks and those who had served in the war. John Wilkes Booth stood in the crowd that night. "That means nigger citizenship," Booth commented to a companion. "That is the last speech he will ever make. . . . By God, I'll put him through." Three days later, Booth fulfilled his vow.


Eric S. Giroux is an associate with Robins, Kaplan, Miller & Ciresi L.L.P. He can be reached at

Published: Thu, Sep 1, 2011


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