Was Lincoln

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Dennis A. Wright, DMin.

Was Lincoln's Emancipation Proclamation Legal?

The Emancipation Proclamation has gone down in history as one of the truly wonderful and magnanimous acts any American president ever attempted.  To question the legality of Abraham Lincoln's triumph seems beyond absurd.  However, should we follow the same logic used by the screech owls who are presently blistering President George W. Bush for his terrorist surveillance program, one would have to concur that Lincoln was also guilty of the abuse of power, even as this current gang of haranguers insist that Bush is guilty of illegal acts.
Almost from the beginning of his administration, Lincoln was pressured by abolitionists to issue an Emancipation Proclamation.  In this Lincoln was hesitant, not because he approved of slavery, but because in his oath of office he swore to uphold the Constitution which plainly stated that slavery was legal.  "No person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due" (Article 4, Section 3, Paragraph 2).  By the time of Lincoln's election in 1860, slavery had been abolished in the North and was confined to the South.  One of the issues leading up to the War Between the States was the issue over whether new states being added to the Union should be Free States or Slave States.
Lincoln personally abhorred slavery and believed that it would eventually die out if left confined to the South and not allowed to spread to the various new states that were being carved out of the vast territories then in existence.  Civil war changed his thinking in a most profound manner.  Following devastating reverses for Major General George B. McClellan and the Union army in the Peninsula Campaign (May-June, 1862), Lincoln understood that extraordinary means were necessary to save the Union, thus giving him an opening to deal more directly with slavery. 
On Sunday, July 13, 1862, Lincoln read his initial draft of the Emancipation Proclamation to Secretary of State William H. Seward and Secretary of the Navy Gideon Welles.  Welles recorded in his diary that Lincoln had "dwelt earnestly on the gravity, importance, and delicacy" of the subject and had "come to the conclusion that it was a military necessity absolutely essential for the salvation of the Union, that we must free the slaves or be ourselves subdued."  Thus, the constitutional protection of slavery could and would be overridden by the constitutionally sanctioned war powers of the president.
Congress got into the act with the passage of the Second Confiscation Act on July 17, which freed the slaves of everyone in rebellion against the government.  This limited initiative on emancipation relieved the Administration of considerable strain and demonstrated an increasing public abhorrence toward slavery.  On July 22, Lincoln read his preliminary draft to his assembled Cabinet, telling them that he understood the "differences in the Cabinet on the slavery question," and welcomed their suggestions after they heard what he had to say; but he wanted them to know that he "had resolved upon this step, and had not called them together to ask their advice."  Lincoln's draft proclamation set January 1, 1863, little more than five months away, as the date on which all slaves within states still in rebellion against the Union would be declared free, "thenceforward, and forever." 
It should be noted that the Emancipation Proclamation did not cover the roughly 425,000 slaves in the loyal Border States--where, without the use of his war powers, no constitutional authority justified his action--the proclamation was shocking in scope.  In a single stroke, it superseded legislation on slavery and property rights that had guided policy in eleven states for nearly three quarters of a century.  Three and a half million Negroes who had lived enslaved for generations were promised freedom.  It was a daring move, Welles later said, "fraught with consequences, immediate, and remote, such as human foresight could not penetrate."
Sentiment within the Cabinet was mixed.  Postmaster General Montgomery Blair feared it would "put in jeopardy the patriotic element in the border States, already severely tried," and "would, as soon as it reached them, be likely to carry over those States to the secessionists."  Secretary of War Edwin M. Stanton instantly grasped the military value of the proclamation.  Having spent more time than any of his colleagues contemplating the logistical problems facing the Union army, he understood the tremendous advantage to be gained if the massive workforce of slaves could be transferred from the Confederacy to the Union.  Secretary Seward demurred only on the issue of timing.  "Mr. President," he said, "I approved of the proclamation, but I question the expediency of its issue at this juncture.  The depression of the public mind, consequent upon our repeated reverses, is so great that I fear … it may be viewed as the last measure of an exhausted government, a cry for help … our last shriek, on the retreat."  Better to wait, he grandiloquently suggested, "until the eagle of victory takes his flight," and buoyed by military success, "hang your proclamation about his neck."
"The wisdom of the view of the Secretary of State struck me with very great force," Lincoln later told the artist Francis Carpenter.  "It was an aspect of the case, that in all my thought upon the subject, I had entirely overlooked.  The result was that I put the draft of the proclamation aside, as you do your sketch for a picture, waiting for a victory."  That victory came September 17 at the Battle of Antietam.  The Union army prevailed and General Robert E. Lee and the Confederate army were forced to retreat.  Lincoln's Emancipation Proclamation was published on September 23 and the rest is history.
So, was the Emancipation Proclamation legal?  Absolutely!  It was most certainly within the constitutionally sanctioned war powers of the president.  Lincoln even authorized the interception of telegrams as a surveillance tool.  So did Jefferson Davis, President of the Confederate States of America.  Were these acts illegal?  Once again, these are within the president's constitutionally sanctioned war powers. 
Spring ahead 144 years to today and the daily lambasting of President Bush over his terrorist surveillance program.  Is this National Security Agency program legal or not?  The nay-saying nitwits of the liberal left would have us believe that not only is President Bush guilty of abuse of his powers, but he is a liar as well.  Even the Great White Whale and other liberal dinosaurs in the US Senate and House of Representatives weigh in almost daily with some new barb to throw at Bush.  For example, consider this Associated Press report from February 8: "Sen. Hillary Rodham Clinton on Wednesday accused Republicans of 'playing the fear card' of terrorism to win elections and said Democrats cannot keep quiet if they want to win in November.  The New York Democrat, facing re-election this year and considered a potential White House candidate in 2008, said Republicans won the past two elections on the issue of national security and 'they're doing it to us again.' "  
And this woman thinks she is presidential timber?  Sigh!  So, what are the facts?
In an article published February 6 in Opinion Journal, Attorney General Alberto R. Gonzales wrote, "After Sept. 11, Congress immediately confirmed the president's constitutional authority to 'use all necessary and appropriate force' against those 'those nations, organizations, or persons he determines" responsible for the attacks.  The Authorization for Use of Military Force (AUMF) gave the president the latitude to use a full complement of tools and tactics against our enemy.  A majority of Supreme Court justices have concluded that the AUMF authorizes the president to use "fundamental and accepted' incidents of military force in our armed conflict with al Qaeda.  The use of signals intelligence--intercepting enemy communications--is a fundamental incident of waging war." 
Gonzales went on to say that "history is clear that signals intelligence is, to use the language of the Supreme Court, 'a fundamental incident of waging war.'  President Wilson authorized the military to intercept all telegraph, telephone and cable communications into and out of the U.S. during World War I.  The day after Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the U.S.  These sweeping measures were seen as necessary and lawful during critical moments of past armed conflicts.  So, too, are the more focused intercepts of al Qaeda during our current armed conflict, especially given the nature of the enemy we face."
Has the terrorist surveillance program worked?  Absolutely!  In a speech delivered Thursday before the National Guard Association of the United States, President Bush provided a shining example of how well this vital program is working.  The transcript of this can be found here: http://www.whitehouse.gov/news/releases/2006/02/20060209-2.html.  Reading it is well worth the time.  For an excellent historical account of the debate surrounding the Emancipation Proclamation see Doris Kearns Goodwin's book, Team of Rivals: The Political Genius of Abraham Lincoln.
If the liberals are so concerned about what they might be saying on their cell phones and in their emails, maybe we Americans ought to be concerned about what else the liberals are trying from us.  Something to think about, eh?
Dr. Dennis A. Wright is Founder and President of Understanding The Times Ministries.  An accomplished writer and educator, Wright has spoken in churches and conferences all over America on spiritual counterfeits and Christian Worldview topics.  He can be emailed at Dennis@UnderstandingTheTimes.org and his new website can be found at www.UnderstandingTheTimes.org.

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