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The Emancipation Proclamation's unforgettable lesson about presidential power
By John Yoo
Published January 01, 2013
| FoxNews.com
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A century and a half ago, today, one of our nation's greatest
presidents launched this nation on a "new birth of freedom." On
January 1, 1863, Abraham Lincoln issued the Emancipation Proclamation,
which declared that all slaves in the rebellious South "are, and
henceforward shall be, free." In that one stroke, the commander in
chief did more than any American to live up to the promise, as he
later described it at Gettysburg, that our new nation was "conceived
in liberty, and dedicated to the proposition that all men are created
equal."
Sandwiched between remembrances of Fort Sumter on the one hand, and
the coming 150th of Vicksburg and Gettysburg on the other, the
Proclamation's anniversary has gone relatively unnoticed. But during
this season of conflict between the executive and legislative
branches, the Proclamation teaches an unforgettable lesson on the
proper uses of presidential power.
Lincoln's greatness is inextricably linked to his broad vision of the
executive. He invoked his authority as commander in chief and chief
executive to conduct war, initially without congressional permission,
when many were unsure whether secession meant war. He considered the
entire South the field of battle. While he depended on congressional
support for men and material, Lincoln controlled all tactics,
strategy, and policy. Only Lincoln's broad interpretation of his
commander in chief authority made the sweeping step of freeing the
slaves possible.
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Some have argued that Lincoln tragically violated the Constitution to
save the Union. Historian Arthur M. Schlesinger called Lincoln a
"despot" and political scientist Edward Corwin considered Lincoln to
have assumed a "dictatorship."
These views echo arguments made during the Civil War itself, even by
Republicans who believed that the Constitution could not address such
an unprecedented conflict. And Lincoln surely claimed that he could
draw on power beyond the Constitution in order to preserve the nation.
As he wrote in 1864: "I felt that measures, otherwise
unconstitutional, might become lawful, by becoming indispensable to
the preservation of the constitution, through the preservation of the
nation."
But Lincoln was no dictator. While he used his powers more broadly
than any previous president, he was responding to a crisis that
threatened the very life of the nation. Like Washington and Jackson
before him, Lincoln relied on his constitutional duty to execute the
laws, his power as chief executive, and his presidential oath as
grants of power to use force, if necessary, against those who opposed
the nation's authority.
Lincoln refused to believe that the Constitution withheld the power
for its own self-preservation. But rather than seek a greater power
outside the law, he believed that the Chief Executive Clause gave the
authority to decide that secession justified war, and the wide range
of measures he took in response: raising an army, invasion and
blockade of the South, military government of captured territory, and
suspension of the writ of habeas corpus.
He issued the final emancipation proclamation, "by virtue of the power
in me vested as Commander-in-Chief, of the Army and Navy of the United
States in time of actual armed rebellion against the authority and
government of the United States."
He rooted the constitutional justification for the Emancipation
Proclamation as "a fit and necessary war measure for suppressing said
rebellion." While he remained clear that the war was "for the object
of practically restoring the constitutional relation between" the
United States and the rebel states, he freed 2.9 million slaves, 75
percent of all slaves in the United States and 82 percent of the
slaves in the Confederacy.
Emancipation more than denied the South a vital resource. It also
called black soldiers to the Union standard. Lincoln reported that his
generals "believe the emancipation policy, and the use of colored
troops, constitute the heaviest blow yet dealt to the rebellion."
Black soldiers saved the lives of white soldiers, and, indeed, the
lives of white civilians.
"You say you will not fight to free negroes," Lincoln wrote to
critics. "Some of them seem willing to fight for you." But he
emphasized that emancipation was not the goal, but the means.
When the war ended, "it will have been proved that, among free men,
there can be no successful appeal from the ballot to the bullet; and
that they who take such appeal are sure to lose their case, and pay
the cost." When that day comes, Lincoln promised, "there will be some
black men who can remember that, with silent tongue, and clenched
teeth, and steady eye, and well-poised bayonet," they helped achieve
victory.
At the same time, Lincoln's constitutional authority explains the
Proclamation's careful boundaries. He did not free any slaves in the
loyal states, nor did he seek to remake the economic and political
order of Southern society. Emancipation would no longer hold once the
fighting ceased, and the other branches could even frustrate it during
the war. Congress might use its own constitutional powers to establish
a different regime—a reasonable concern with Democratic successes in
the 1862 midterm elections—and allow the states to restore slavery
once the war ended.
Lincoln never claimed a broad right to end slavery forever; only the
Thirteenth Amendment to the Constitution could do that. The
Emancipation Proclamation remained only an exercise of the president's
war power necessary to defeat the enemy.
The link between the Emancipation Proclamation and Lincoln's broad
view of presidential power should cause us to reflect on current
controversies over the executive. The presidency was meant to be weak
at home and strong abroad.
As Alexander Hamilton wrote in "Federalist 70," it was to be that one
part of government which could respond with "decision, activity,
secrecy, and dispatch" to unforeseen crises and emergencies, the most
dangerous of which was war. In "Democracy in America," Alexis de
Tocqueville observed that the presidency was a cypher that would
become a great office only once foreign affairs became important to
the United States.
Lincoln's Emancipation Proclamation, and his expansion of presidential
power, sits firmly within the Framers' vision. As we await another
inauguration, the latest occupant of the Oval Office could take a
lesson from the first Republican President, who used his power to
become "the Great Emancipator."
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Saurav Datta

Twitter: SauravDatta29
Mobile : +91-9930966518

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