Two of my great-great-grandfathers left Maine in the “fight to make men free”—one came back without his foot, and the other died in “Hospital, Washington;” we don’t even know where he was buried. Ending the horrible evil of slavery should be celebrated, but June 19, 1865, is neither the day it ended nor one significant enough to celebrate.
First and foremost, the Emancipation Proclamation only applied to those states that were in rebellion, and while they were slave states, the “border states” of Delaware, Maryland, Kentucky, and Missouri weren’t in rebellion and thus slavery remained legal there. Likewise, slavery remained legal in West Virginia when it joined the Union in 1863. Slavery in these five states did not end on Juneteenth.
Second, the Emancipation Proclamation was an executive order issued by Lincoln in his capacity as Commander-in-Chief of the U.S. Army. (The U.S. Army was founded on June 14, 1775.) It only applied to those areas under martial law. As soon as the civil courts reopened, it would have inevitably been thrown out for a variety of reasons, starting with the fact that it was an Executive Order and not a congressional statute.
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Third, even if it had been a statute, duly passed by Congress and signed by the President, the Fifth Amendment states that “nor shall private property be taken for public use, without just compensation. The Supreme Court had ruled that slaves were property—persuaded by Roger Taney—and thus they could not be freed without compensating their owners.
This was known at the time and is the reason why the District of Columbia Compensated Emancipation Act of 1862, which freed the slaves in DC, included compensation for the owners. They literally brought in three slave traders from Maryland to determine the value of each slave, and those owners who had remained loyal to the Union were paid the same out of the Federal treasury.
Initially, only white slave owners were paid, and then a decision was made to pay black slave owners as well. In some cases, this involved people who had bought the freedom of a family member, in others, it was one where they were actual slave owners, exploiting slavery like their white peers. But property was considered property, which could not be taken without just compensation.
After all, the family of Robert E. Lee successfully sued over the confiscation of his estate—what is now Arlington National Cemetery—and the Federal Government wound up having to buy it from them, paying many multiples of its actual value. (United States v. Lee, 106 U.S. 196 (1882))
And as an aside, if you ever get the chance, go stand on the front doorstep of the Lee mansion on a sunny summer afternoon and look down at the City of Washington lying across the river and imagine what a battery of cannons in the dooryard would have done. The U.S. Army really didn’t have a choice; they had to hold that property in order to prevent the Confederates from leveling the Capitol.
This leads to my fourth point: it took the 13th Amendment to outlaw slavery. The required 36 states had ratified it on December 6, 1865, and it was proclaimed to be in effect on December 18, 1865.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. — 13th Amendment
But that didn’t end slavery because of the 5th Amendment’s “taking” clause. Dealing with that took the 4th paragraph of the 14th Amendment, which invalidated “any claim for the loss or emancipation of any slave.”
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. — 5th Amendment
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. — 14th Amendment
But even this didn’t fully end slavery because the Creek Nation, who had fought with the Confederacy, had African slaves of their own—it took an 1866 treaty to liberate them. The tribes promised to grant full tribal membership to those Creek Freedmen who chose to remain in what was then Indian Territory. The tribes didn’t do this, and that has created legal issues in Oklahoma, which linger to this day.
But as to Galveston Island, the second portion of General Granger’s order of purported emancipation stated that “[t]he freedmen are advised to remain quietly at their present homes and work for wages”—freedom is the right to go work for whomever you wish, not to be kept under the thumb of your former slavemaster.
However, worse still, there was no minimum wage at the time. There was no specification as to what the wages would be, nor what could be deducted from them. It was thus perfectly legal to pay only a dollar a day and then deduct two or three dollars for food and housing. Called debt peonage, this practice was common in the factory towns of the North, and people could not leave until they had paid their debts, which they would never be able to repay. How is this better than slavery?
There is actually evidence that the former slaves considered it worse. We know this because they told us so. (You can listen to several testimonies here.) Starting in 1934, the New Deal sent people out to record the oral histories of senior citizens who had been born as slaves. Much of this documentation is in the Library of Congress, and some of it is now available online.
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When asked to compare the then-current conditions to those under slavery, much to everyone’s surprise, they said that things had actually been better under slavery.
Yes, this was during the depths of the Depression, and yes, these were elderly persons remembering their youth. But the case can also be made that debt peonage was actually worse than chattel slavery. (PBS makes this case, in fact, in its documentary Slavery by Another Name.)
The case can also be made that slavery really didn’t end until the Civil Rights movements of the 1950s and 1960s. And what’s often overlooked today is just how bad things were a century ago, and the case can be made that slavery really didn’t end until 1964.
Celebrating the end of slavery is worthwhile, but celebrating it on “Juneteenth” is asinine.
Image: “The Emancipation of D.C. Slaves” by Treasury Curator on Flickr
