Friday, June 10, 2011

Lincoln, Slavery, and the Law

    I was about a quarter of the way through The Fiery Trial when the announcement came that the book was awarded this year's Pulitzer Prize in history. 
    Written by Eric Foner, the DeWitt Clinton Professor of History at Columbia, the book recounts in fascinating detail the evolution of Abraham Lincoln's thinking about slavery and the action government could legitimately take to address the issue. Most striking for me was the role that constitutional law played in Lincoln's thinking over three decades. 
    Lincoln was morally repelled by slavery but he thought that the law imposed serious constraints on what could be done about the "peculiar institution." The Constitution drafted in 1787 plainly recognized slavery without actually using that word: the three-fifth compromise allowed a state to count 60% of its slaves towards the state's total population for determining its representation in the House of Representatives (and its Electoral College vote), and the fugitive slave clause permitted slave owners to legally secure the return of runaway slaves. 
    Because the Constitution recognized a property right in slaves, Lincoln could not adopt the abolitionist view. Instead, he, like many others, opposed the expansion of slavery and had to deal with such knotty legal questions as whether a slave secured his freedom if the slave owner traveled with the slave into a state which had abolished slavery. 
    The Civil War and the Emancipation Proclamation brought Lincoln's legal dilemma to the fore: as President he was decreeing the manumission of slaves without providing for compensation to the owners--a policy he considered a necessity of war. Until his death Lincoln was concerned that the Supreme Court would declare the Proclamation unconstitutional. According to Professor Foner he named Secretary of Treasury Salmon P. Chase the Chief Justice of the Supreme Court "to guarantee that the Court did not challenge the constitutionality of the Emancipation Proclamation." The legal question was put to rest, however, when the Thirteenth Amendment abolishing slavery (without compensation to slave owners) was finally ratified several months after Lincoln's assassination. 
    This is history at its best: deeply informed, scholarly but readily accessible, and very well written. Take it to the beach this summer.        

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