Lincoln's dilemma

Fred Hutchison, RenewAmerica analyst

Originally published June 13, 2004

How important was freeing the slaves to Abraham Lincoln? Was that his top priority? How did Lincoln view his primary mission as president? I have heard these issues debated all my life. The issue is now resolved for me by reading One Last Card to Play, a book review by Peter Schramm of Lincoln's Emancipation Proclamation: The End of Slavery in America, by Allen C. Guelzo. Lincoln was a greater president than I had realized.

Anyone who questions Lincoln's commitment or desire to see slavery abolished simply does not know the man. Lincoln's hatred of slavery and passion for emancipation was deep and fervent. He wrote, "If slavery is not wrong, nothing is wrong." Why then did he wait so long to issue the Emancipation Proclamation? When he did issue the Proclamation, why did he use half measures — limiting emancipation to those slave states that were currently occupied by the Union army?

Many people seem to think that Lincoln wanted to postpone the nettlesome slavery issue until he had done the more important things — beating the rebels and preserving the Union. According to this view, Lincoln put emancipation on the back burner until a more opportune time. A persuasive argument can be made for this case — but it happens to be wrong. In the mind of old Abe, emancipation was never on the back burner. Guelzo says,"Lincoln's face was set towards the goal of emancipation from the day he first took the presidency." It was always uppermost in the desires of his heart. From the opening days of his presidency, he was mulling over a variety of schemes for emancipation. He sadly vetoed some emancipation gambits that were proposed by others which were patently unconstitutional. "Prudence demanded that he balance the integrity of ends (the elimination of slavery) with the integrity of means (his oath to uphold the Constitution and his near-religious reverence for the rule of law)."

One might argue that since Lincoln suspended habeas corpus — allowing prisoners to be held without trial — he was not that serious about the Constitution, human rights, or the rule of law. Thus, the charge might be made that Lincoln's insistence of upon constitutional proprieties for emancipation was a stalling tactic. I hope to show that this idea is wrong on all counts.

Unfortunately, many people still think that Lincoln dawdled and equivocated on emancipation because he did not think the question was a vital one. False and unjust. Those with this point of view have made a lot of mileage with Lincoln's statement that he could accept slavery if it was necessary to do so to preserve the Union. He literally meant what he said, of course. Lincoln said that his "paramount object in the struggle is to save the Union...a Union dedicated to the proposition that all men are created equal." Lincoln rejected the idea that "emancipation required the headlong abandonment of everything save the single absolute of emancipation, or that purity of intension was all that mattered...."

But those who dwell on the fact that Lincoln was not ready to throw everything else overboard in order to exclusively cherish emancipation misunderstand Lincoln's wider policy and the wisdom of that policy. They misconstrued what he was really up to. He was holding some cards close to his chest and it was not yet time to lay them on the table. If he could play the right card at the right time, we could have it all — victory, emancipation, the Union, and the Constitution. If he played a card too soon, we might lose everything — the war, the Union, the Constitution, and emancipation. All might be lost if Lincoln lost his cool and played his trump too soon. Lincoln had a warm heart but a cool head. He knew when to play his trump card.

The constitutional duty

Lincoln took an oath of office to uphold, protect, and defend the Constitution of the United States. His duty as president was to be comprehended in those terms.

What events of the day were a threat to the Constitution? The rebel armies were fighting to secede from the Union. Daniel Webster said the Union "is indissoluble." Secession was generally believed to imply the dissolution of the Union. This might mean the dissolution of the Constitution — because the Constitution calls for a federal Union. The only means at Lincoln's disposal of preventing the dissolution of the Union and the Constitution was the Union army. In his constitutional role as Commander-in-Chief, he could lead the army and beat the rebels. If he was to free the slaves, it would have to be within the context of these powers, duties, and constraints. Both his suspension of habeas corpus and emancipation were performed as part of his constitutional powers of Commander-in-Chief in times of war.

The suspension of habeas corpus was of debatable constitutional merit. It was a desperate expedient of a desperate civil war. However, Lincoln carefully defined the act as strictly applicable for war time and in no way hindering the constitutional rights applicable to peace time. Lest we too harshly criticize Lincoln, imagine the jails filling with tens of thousands of prisoners of war and tens of thousands of rioters in New York. With habeas corpus, all these prisoners would have to be released if they were not brought to trial within a limited period of time. How could Lincoln do that and still win the war? It was an almost impossible dilemma.

Lincoln arguably may have stumbled over habeas corpus — but his handling of emancipation was a masterstroke. He solved an extraordinarily complex problem — the constitutional emancipation of slaves owned by enemy forces during a civil war.

The dilemma

Preservation of the Union was the preservation of a land of free men — a land where slaves might be set free. The emancipation of the slaves would lead to "a more perfect Union," as set down in the preamble to the Constitution. It would be a Constitution in accord with the Bill of Rights and with Natural Law. Lincoln deeply believed in Natural Law and those human rights which spring from the laws of nature. The Union and the Constitution would ultimately be strengthened by emancipation. Therefore, Lincoln saw it as his duty to free the slaves.

However, a premature emancipation or an emancipation with an overly broad geographical scope might not be enforceable. Lincoln could not proclaim what he did not have power to perform. How could he free the slaves in territories still held by the Confederate forces? He needed to find a way to free the slaves that would not scuttle the war effort. Union defeat would be a dismal outcome for the slaves. Lincoln wanted an emancipation that would contribute to Union victory. He wanted an emancipation that would last after the war.

The cause of the Union was in grave danger the first two years of the war. The rebels fought for the lost cause with gallantry, zealotry, and impressive heroics. The price of freeing the slaves was death. "As He [Christ] died to make us holy, let us die to make men free...." (Battle Hymn of the Republic, sung by Union soldiers).

But would Billy Yank fight to a martyr's death to free the slaves in a distant state? Here again, timing was everything. Play the emancipation card too soon and we lose the war. Some Northern states might balk at spending their blood and treasure for emancipation. Promising an emancipation you can't deliver might produce contempt and defiance by pro-slavery forces and could be a cause of disappointed hopes and even despair for the slaves.

On the other hand, if emancipation is proclaimed in due season, you might give the Yankee troops a higher cause to fight for. And you might persuade some of the liberated black slaves to fight for the Union — if the emancipation was an authentic liberation from slavery. Freed slaves might be more willing to sign up if the Union army has a chance of winning and was led by men who know what they are doing — good generals like Grant, Sherman, and Sheridan, instead of weak generals like McClellan, Hooker, and Burnside. Think of it. Yankee troops marching for a higher cause allied with black troops fighting for freedom — and all led by good generals. Now there, son, is the formula for victory.

It is no wonder that this epic was long to be remembered by Union veterans and their children as "the glorious war" that was fought for a "higher cause." Five Star General Douglas MacArthur, as a zealous young man, was deeply envious of his father's generation for having been able to fight in the "glorious war."

Legitimate power and enduring results

Lincoln was determined to find a constitutional power he could legitimately use to free the slaves. If he seized unconstitutional dictatorial powers to free the slaves, the allegedly free slaves would have to serve a white dictator. The new dictator would stand amid the shattered ruins of the Constitution.

Emancipation had to be permanent — it had to endure long after the war. Emancipation could only be assured that it would be protected by future generations if it was nestled in the Constitution. Constitutional integrity must be protected at all costs. In this way, emancipation, the Union, and freedom would become the legacy of future generations. Destroy the Constitution while seeking emancipation, and even if the Union wins on the battlefield, the legal foundation for sustaining emancipation after the war is gone. Where might the freed slaves go in a sullen white world that is no longer free? A Jim Crow terror world broken free from the rule of law might be almost as bad as slavery. The Jim Crow world we actually had was bad enough.

The solution

The War Powers Act of the Constitution gives the president broad powers for waging war. The president could make certain proclamations and decrees and issue executive orders within the context of fighting a war. The Civil War was fought on American soil. Captured rebel territory under the occupation of Union troops was under federal jurisdiction. As long as the war continued, the president could issue decrees concerning the administration of occupied territories — provided that those decrees were necessary to the war effort.

Lincoln's lawyers argued that an Emancipation Proclamation could be constitutionally legal provided that: 1) it was a time of war, 2) the emancipation was limited to slave states under Union occupation and administration, and 3) emancipation would be helpful in winning the war. Lincoln pronounced to his cabinet, "It was a military necessity to the salvation of the Union, that we must free the slaves or be ourselves subdued." When Lincoln said this, he had the constitutional trump card in his hand, "the War Powers Act." This was July 22, 1862. Lincoln did not play the card for two more months. Why did he still delay?

The delay

Lincoln wanted to wait until a meaningful percentage of the confederacy was under Union occupation. He wanted the proclamation to bring forth a real emancipation of large numbers of real people. Lincoln shuddered at the idea of a phony theoretical emancipation — to make the liberals feel good and to score political points in abolitionist districts. He wanted something reminiscent of the biblical Day of Jubilee when the Israelites freed their slaves. "De Massa stay, hey, hey. De darkie go, ho, ho. It mus' be den dat de kingdom comin' and de year of jubilo" (popular song of the emancipation era sung to a lively tune in a jubilant mood).

Lincoln needed a major military victory in the northeastern theater of operations. There were plenty of Union victories in the western theater, but a victory over Lee in Virginia still eluded the Union army. As long as Lincoln failed to give Lee of good thrashing, Lincoln would look weak and ineffective. As long as Lee kept winning battles and seemed invincible, the Union generals in the northeastern theater would have no backbone. Lincoln needed a military victory over Lee to demonstrate that he possessed decisive conquering power. Then his word of emancipation would have authority and power — power to change the world.

The bloodletting

Lee's armies marched north from Virginia into Maryland on September 4, 1862. Lincoln resolved to issue the proclamation as soon as Lee was driven out. The Battle of Antietam (or Sharpesburg) was fought on September 17, 1882. It was a slaughter. 12,400 Union troops were killed. 10,200 confederate troops were killed. Total dead — around 22,600. It was the bloodiest day of the Civil War. The Emancipation Proclamation came on the heels of a great bloodletting.

Antietam was more of a stalemate than a Union victory. However, Lee crossed back into Virginia after the battle. He was not driven out of Maryland. He was sensibly withdrawing from a deadlock in a slaughterhouse.

However, it could be plausibly argued that Lincoln had stopped Lee's invasion of the north and had essentially driven Lee back into Virginia. Thus, Antietam was claimed as a political victory for Lincoln. The psychological impact of the "victory" set the stage for Lincoln to play the emancipation card. The startling cataclysm of the great bloodletting seemed to signal that a new world was being born.

On September 20th, Lincoln called a cabinet meeting and submitted a Preliminary Emancipation Proclamation Draft. He said, "It is my last card...and I will play it and may win the trick."

Antietam and Emancipation came about halfway through a long and bloody war. Many great battles lay ahead. However, Lincoln's astute timing in playing the emancipation card from a war powers hand brilliantly capitalized on the showdown at Antietam and did much to assure an eventual Union victory. It was a victory won by white Union troops fighting for a higher cause marching with black Union troops fighting for freedom. Emancipation stuck and has endured for the duration. The Constitution was protected, and our civil freedoms came through the storm intact. The Union was badly shaken, but we came through by the skin of our teeth.

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© Fred Hutchison