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.
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.”
John C. Yoo is Heller professor law at UC Berkeley School of Law and a visiting fellow at the American Enterprise Institute, and the author of the new book “Striking Power: How Cyber, Robots and Space Weapons Change the Rules of War.”