Just the Facts, Ma’am

BRIAN: This is BackStory. I’m Brian Balogh.

ED: I’m Ed Ayers.

PETER: And I’m Peter Onuf. 150 years ago this month, President Lincoln signed the Emancipation Proclamation, outlawing slavery in the rebellious states. Today on the show, we’re looking at the repercussions of that event in the months, years, and decades that followed.

ED: So you might be wondering why it took Lincoln so long to issue the Emancipation Proclamation. I mean, he’d been elected two years earlier on an anti-slavery platform. Well by 1862, a lot of his fellow Republicans were wondering the same thing.

MALE SPEAKER: On the face of this wide Earth, Mr. President, there’s not one disinterested, determined, intelligent champion of the Union cause who does not feel that the rebellion, if crushed out tomorrow, will be renewed within a year, if slavery were left in full vigor, and that every hour of deference to slavery is an hour of added and deepened peril to the Union.

BRIAN: This is New York Tribune editor Horace Greeley, writing in August of 1862. A month earlier, Congress had passed the Second Confiscation Act, saying that all slaves belonging to Rebel fighters should be considered free. But Greeley felt that Lincoln wasn’t doing much to enforce that law. Three days later, the paper printed a response from the President himself.

MALE SPEAKER: My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave, I would do it. And if I could save it by freeing all slaves, I would do it. And if I could save it by freeing some and leaving others alone, I would also do that.

BRIAN: Lincoln went with option number three. He would free some slaves, but leave others alone. In September of 1862, he issued what today we call to Preliminary Emancipation Proclamation. Basically, a heads up to the South about what was coming in the new year.

MICHAEL VORENBERG: You could see it as basically a big stick to get the Confederacy to stop fighting, with the carrot that if they do stop fighting, those that own slaves get to keep their slaves.

PETER: This is Michael Vorenberg, a legal historian who spent a lot of time studying the Proclamation. And again, this is the Preliminary Emancipation Proclamation. The final Proclamation would come 100 days later, after the carrot and stick approach had failed. And it would come with a few key changes. Lincoln removed language about compensating slave owners and shipping freed slaves out of the country.

He also authorized the enlistment of African Americans in the Armed Forces of the United States. And finally, he specified the places where the Proclamation would take effect.

MICHAEL VORENBERG: And in the states listed, none of the border states are mentioned. Now border state, by which I mean a state that’s in the Union, but is still a slave state.

PETER: Maryland, for instance?

MICHAEL VORENBERG: Maryland was one of these. Delaware. No disrespect to Delaware, that was probably the least important. But Maryland is terribly important, because it borders Washington. Missouri is a very important state in the West. And Kentucky, I think Lincoln regarded as the most important of these states. He famously said, I hope to have God on my side, but I must have Kentucky. [LAUGHING]

PETER: Michael, when we look back at the Emancipation Proclamation, we tend to be disappointed. And we think it’s a bit cynical. I mean, why isn’t he doing something about slavery across the country, where he actually has power? Maybe you could make it clear to our listeners what the constitutional constraints were on Lincoln. What could he do? And was he pushing that to the absolute limits?

MICHAEL VORENBERG: Here, there’s a lot of controversy. And I would say he was pushing it pretty much to the absolute limits. It’s worth remembering that in areas where war is not going on, as commander-in-chief, he doesn’t have the power to simply free all the slaves in the Union States in other areas.

BRIAN: Just to be clear, Lincoln is acting under his conception of his War Powers under the Constitution.

MICHAEL VORENBERG: That is exactly right. He understood that if you wanted to abolish slavery, it had to happen through the states. That was the custom. It had become such a custom, such an accepted piece, it was almost as good as being explicit in the Constitution.

BRIAN: And might this constitutional parsing, this tight rope that he is walking, might this explain the really dry language of the Emancipation Proclamation? Is it possible that he was simply trying to dampen a more emotional, evocative approach?

MICHAEL VORENBERG: That is exactly why I think he uses this phrasing. Because he wants to make it clear that he is acting in his capacity as commander-in-chief. Not as the executive of the nation, and not as– and this is important– not as the spokesman for the nation. And when he gives a second inaugural and he deals directly with the issue of slavery in beautiful and really powerful words, he’s thinking about being a spokesman of the nation. But this is something different.

BRIAN: That’s Michael Vorenberg. He’s an historian at Brown University.