Finkelman Paul - Lincoln, Congress, and Emancipation

Lincoln, Congress, and Emancipation

Perspectives on the History of Congress, 18011877

Donald R. Kennon, Series Editor

Congress and the Emergence of Sectionalism: From the Missouri Compromise to the Age of Jackson, edited by Paul Finkelman and Donald R. Kennon

In the Shadow of Freedom: The Politics of Slavery in the National Capital, edited by Paul Finkelman and Donald R. Kennon

Congress and the Crisis of the 1850s, edited by Paul Finkelman and Donald R. Kennon

Lincoln, Congress, and Emancipation, edited by Paul Finkelman and Donald R. Kennon

Lincoln, Congress, and Emancipation

Edited by Paul Finkelman and Donald R. Kennon

PUBLISHED FOR THE

UNITED STATES CAPITOL HISTORICAL SOCIETY

BY OHIO UNIVERSITY PRESS

ATHENS

Ohio University Press, Athens, Ohio 45701

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2016 by Ohio University Press

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Library of Congress Cataloging-in-Publication Data

Names: Finkelman, Paul, 1949 editor. | Kennon, Donald R., 1948 editor.

Title: Lincoln, Congress, and emancipation / edited by Paul Finkelman and Donald R. Kennon.

Description: Athens, Ohio : published for the United States Capitol Historical Society by Ohio University Press, 2016. | Series: Perspectives on the history of Congress, 1801/1877 | Includes bibliographical references and index.

Identifiers: LCCN 2016036283| ISBN 9780821422274 (hc : alk. paper) | ISBN 9780821422281 (pb : alk. paper) | ISBN 9780821445761 (pdf)

Subjects: LCSH: Lincoln, Abraham, 18091865Views on slavery. | United StatesPolitics and government18611865. | SlavesEmancipationUnited States. | United States. President (18611865 : Lincoln). Emancipation Proclamation. | United States. Constitution. 13th AmendmentHistory. | Lincoln, Abraham, 18091865Influence.

Classification: LCC E457.2 .L823 2016 | DDC 973.7092dc23

LC record available at https://lccn.loc.gov/2016036283

Contents

Paul Finkelman

Seymour Drescher

Amy S. Greenberg

James Oakes

Orville Vernon Burton

Beverly Wilson Palmer

L. Diane Barnes

Michael Burlingame

Paul Finkelman

Jenny Bourne

Matthew Pinsker

Paul Finkelman

Introduction

Freedom, Finally

IN 1776 THIRTEEN American colonies declared their independence from Great Britain and formed a weak confederation called the United States of America. The American colonists offered an elaborate explanationthe Declaration of Independencefor why they were separating from their mother country. Much of the Declaration is a laundry list of specific complaints against the king. But the Declaration is mostly remembered for its stirring language about liberty and fundamental human rights:

We hold these Truths to be self-evident, that all Men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the Pursuit of HappinessThat, to secure these Rights, Governments are instituted among Men, deriving their Just powers from the Consent of the Governed.

The great problem with this brilliant endorsement of liberty, equality, and justice is that neither the primary author of the DeclarationThomas Jeffersonnor most other leaders of the nation were willing to apply its principles to the 700,000 or so African and African American slaves living in the United States. The right to liberty may have been unalienable, but the governments of all thirteen states denied this right to the slaves in their jurisdictions. All people may have been created equal, but in the new United States all slaves and most free blacks were denied legal equality.

Although the Constitution authorized Congress to regulate all international commerce, the document specifically prohibited Congress from banning the African slave trade before 1808, and did not promise that the trade would ever be ended. Although the system of federalism created by the Constitution empowered the states to regulate the status of all people within their jurisdiction, the Constitution specifically prohibited states from emancipating fugitive slaves and required that such people be returned to their owners.

The political structure created by the Constitution both explicitly and implicitly protected slavery. Under the three-fifths clause, slaves were counted in determining how many representatives each state would get in Congress. The Constitution did not count any other form of private property in allocating representatives in Congress. Counting slaves for representation gave the South a bonus in the House of Representatives that provided the margin for passage of numerous proslavery laws, such as the Missouri Compromise of 1820 and the Fugitive Slave Act of 1850. Electoral votes were based on a states congressional representation, which meant that seats in Congress created by counting slaves also gave the South extra electoral votes. In 1800 the slaveholding Thomas Jefferson would not have been elected president had slaves not been counted for representation and thus affected the Electoral College.

The structure of the Senate indirectly protected slavery as well. Each state had equal representation in the Senate, and thus even though the northern states had nearly twice as many residents as the slave states, the South had as many or more senators for most of the antebellum period.but there were always a few northern Democrats who were willing to vote with the South on issues affecting slavery. Thus, even with a northern majority in the Senate, that body passed the Kansas-Nebraska Act in 1854, which allowed slavery in western territories where it had previously been banned. The constitutional structure and the political realities of antebellum America made it impossible to imagine any federal laws impinging on slavery.

Slaves were the only form of privately held property that the Constitution acknowledged and protected. Thus, in 1857 the Supreme Court could explicitly hold that property in slaves was uniquely protected by the Constitution and Congress had no power to ban this property from any federal jurisdiction.

Even if the northerners in Congress had united to oppose slavery, it is not clear they could have accomplished much. The Constitution of 1787 had created a government of very limited powers, and almost every serious constitutional theorist, lawyer, judge, and politician believed that the national government had no power to interfere with the domestic institutions of the states. Because the Constitution created a government with limited powers, Congress had no power to end slavery in the states. As General Charles Cotesworth Pinckney, the head of South Carolinas delegation, told the South Carolina House of Representatives after the Convention,

We have a security that the general government can never emancipate them, for no such authority is granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states.

At least on its face, the Constitution left the regulation of slavery (and the status of people in general) in the hands of the states.