Did Lincoln Free the Slaves?

August 3, 2000

Most Americans are under the impression that Abraham Lincoln personally abolished slavery. It seems almost self-evident that “Lincoln freed the slaves.” For generations, many blacks voted Republican out of gratitude to Lincoln.

But the statement that “Lincoln freed the slaves” is a gross oversimplification. Its widespread acceptance shows not only ignorance of history, but a deep incomprehension of the U.S. Constitution.

No president, as Lincoln well knew, could simply pick up a pen and do away with slavery. To think that he could is remarkably naive — yet that is what most people do think.

Legally, slaves were the property of other men; that is what slavery means. And under the Constitution, nobody could be deprived of his property without “due process of law” — that is, a court proceeding had to prove to a jury that a slaveowner had somehow forfeited his property.

“Due process of law” didn’t mean a legislative act. Congress had no power to pass a law outlawing slavery. Lincoln acknowledged this in his first inaugural address and even said he could support an amendment to the Constitution protecting slavery where it already existed.

If the Constitution meant what today’s liberals say it means, Congress could have simply passed a law banning slavery by invoking its “Power ... to regulate Commerce ... among the several States.” But in the 1860s, nobody thought that this power was so broad as to nullify property rights. They understood that the Constitution would have to be amended to give Congress authority over slavery, which at the time seemed less likely than an amendment for the opposite purpose.

Lincoln knew that emancipation would be a risky business. Convinced that whites and blacks could never live together as equals, he contemplated resettling freed blacks in Africa and Latin America.

During the Civil War, Lincoln decided, after much agonizing, to declare that slaves in the seceding states were free. The Emancipation Proclamation didn’t apply to slaves in the states that remained within the Union. So it didn’t really “free the slaves.” It had little immediate effect on slaves in the Confederacy, of course, since they were beyond Lincoln’s reach. Wags quipped that Lincoln had freed the slaves he couldn’t help, while doing nothing for the slaves he could have helped.

The question everyone asked was by what authority Lincoln could help any slave. Lincoln admitted that Congress had no constitutional power to touch slavery by legislation; but he argued that he, in his capacity as commander in chief of the armed forces putting down what he defined as an insurrection, could punish “rebels” by stripping them of their property, even if that property happened to be slaves. In a civil war, he contended, this could be done without the peacetime niceties of “due process of law.”

So the Emancipation Proclamation was a limited, complex, and constitutionally dubious measure. Still, it was a brilliant propaganda coup that won foreign sympathy for the Union cause. It redefined the Civil War as a contest over slavery rather than secession, distracting attention from the basic question of whether a state could declare its independence of the Union.

That question was brutally answered anyway by the outcome of the war. Since 1865 it has been assumed that no state may secede for any reason, no matter how tyrannical the federal government may become, no matter how wildly it exceeds its constitutional powers. People still illogically associate secession with slavery; and even if the federal government is wrong in its claim of absolute sovereignty, the states and the people are helpless against it. The federal government can now change the meaning of the Constitution that is supposed to restrain it, and there is no practical remedy for its abuses.

Lincoln was in some ways a short-sighted man, who neither foresaw nor intended the ultimate results of the Civil War. But “preserving the Union” turned out to mean inverting its federal structure and creating a central government so strong that no countervailing forces can stop it from monopolizing power. The worst of it is that most people in the United States of Amnesia can’t even see this as a problem.

Joseph Sobran

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