Was the Emancipation Proclamation Constitutional? Do We/Should We Care What the Answer Is?
Sanford Levinson | 2001 U. Ill. L. Rev.
On the first day of the new year of 1863, President Abraham Lincoln issued the Emancipation Proclamation-signifying the dawn of a new era in the bitterly divided United States of America. Surely, few would question the monumental significance of this historic event. Few would dare debate the "rightness" of Lincoln's action. However, Professor Sanford Levinson, in his David C. Baum Memorial Lecture, asks: was the Proclamation constitutional? In this provocative piece, Professor Levinson explores Lincoln's, and his contemporaries', intellectual and political struggles with the constitutional parameters of the office of president and the lawful scope of the Proclamation. Professor Levinson then proceeds to set forth an assessment of the constitutionality of Lincoln's action. Ultimately, according to Professor Levinson, the question becomes: do we care whether the Emancipation Proclamation, and other landmark acts, events, and decisions, are constitutional? He argues that society evaluates constitutional decisions with a focus on whether it agrees with or substantively "likes" the outcome, i.e., nonlegal grounds, rather than on the decision's fidelity to the Constitution. Professor Levinson concludes by discussing Bush v. Gore and the lessons it, and the Emancipation Proclamation, teach about constitutional development, "rough justice," and most importantly, constitutional fidelity.
*W. St. John Garwood and W. St. John Garwood Jr. Regents Chair in Law, University of Texas Law School