A Bill of Lading Delivers the Goods: The Constitutionality and Effect of the Emancipation Proclamation

On January 31,1865, Congress adopted the Thirteenth Amendment, which outlawed slavery in the United States, and sent it to the states for ratification. In an impromptu speech delivered the next day and re corded by the New York Tribune, President Abraham Lincoln promoted the amendment as a means of avoiding the possible legal infirmities of the Emancipation Proclamation: "A question might be raised whether the proclamation was legally valid. It might be added that it only aided those who came into our lines and that it was inoperative as to those who did not give themselves up, or that it would have no effect upon the children of the slaves born hereafter.... But this amendment is a King's cure for all the evils."1 Lincoln was too good a lawyer to leave hostages to legal fortune if the Thirteenth Amendment was not ratified. His "a question might be raised" formulation suggests that he recognized these concerns without sharing them. But the concerns were real, and they didn't end with po tential legal problems. By its terms, the Proclamation only freed slaves in territory in rebellion on January 1,1863, its date of issuance, leaving slavery untouched in other areas. And as James McPherson has noted, the Proclamation would not outlaw slavery as an institution even if those in slavery at the end of the war were "forever free."2 These ills, too, were cured by Lincoln's panacea when it was ratified in December 1865. The cure has discouraged study of the ills. Lincoln believed that his issuance of the Emancipation Proclamation was the act for which he would always be remembered, planting the footprint in time and eternity he had craved since youth. The record fulfills his prophecy. Amazon.com lists more than twelve thousand books, articles, and let