The constitutionality of the Emancipation Proclamation was doubted by
most politicians and by Abraham Lincoln himself. Lincoln says at page 2, line
three, of his April 4, 1864 letter to A. G. Hodge, editor of a newspaper in
Frankfort, Kentucky, that "I felt this measure, otherwise unconstitutional
(emphasis added), might become lawful by becoming indispensable to the
preservation of the Constitution, through the preservation of the nation."
He then tried to justify the declaration as a temporary war measure.
However, as president Lincoln could constitutionally issue no such
declaration, and that seems to be the consensus opinion of most political
scientists and constitutional historians. As Commander-in-Chief of the armies
and navies of the U.S., Lincoln could issue directions only as to the
territory within his lines. But the Emancipation Proclamation applied only to
territory outside his lines. He clearly had no authority to promulgate, or
ability to enforce, the proclamation in areas that were not under his
control. It was tantamount to Lincoln freeing the slaves in the Belgian
Congo.
Furthermore, the bonehead aspect of the proclamation from an
Abolitionist perspective is that theoretically after the war, the slaves
freed by the decree risked re-enslavement in the Northern states had nothing
else been done to confirm their liberty. Thus, the need for the 13th
Amendment to clean up that problem (apparently unanticipated by Lincoln and
his advisors), since there was interest in such re-enslavement due to the
labor shortage in the North. By the way, as we all know by now, such
enslavement was the bailiwick of slaveowning whites and black freemen in the
U.S.
An interesting study of slaveowners based on the 1790 U.S. census
reveals that free black slaveholders lived in 195 counties in the United
States at that time. The state with the most free colored slaveholding
families--Maryland.
JDS
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