Editing Emancipation Proclamation (section)

==Authority==
{{Further|Slave states and free states|Slavery and the United States Constitution}}
[[File:Brooklyn Museum - Abraham Lincoln - overall.jpg|thumb|upright|Abraham Lincoln]]

The [[Slavery and the United States Constitution|United States Constitution]] of 1787 did not use the word [[Slavery and the United States Constitution|"slavery"]] but included several provisions about unfree persons. The [[Three-Fifths Compromise]] (in Article I, Section 2) allocated congressional representation, and therefore the number of each states' votes in the [[United States Electoral College|Electoral College]], based "on the whole Number of free Persons" and "three-fifths of all other Persons".<ref>{{cite book|author=Jean Allain|title=The Legal Understanding of Slavery: From the Historical to the Contemporary|url=https://books.google.com/books?id=n_KAvAjkEbsC&pg=PA117|year=2012|publisher=Oxford University Press|page=117|isbn=9780199660469}}</ref> Under the [[Fugitive Slave Clause]] (Article IV, Section 2), "No person held to Service or Labour in one State" would become legally free by escaping to another. [[Port Preference Clause|Article I, Section 9]] allowed Congress to pass legislation to outlaw the "Importation of Persons", but not until 1808.<ref name="Foner—2010——16">{{harvnb|Foner|2010|p=16}}</ref> However, for purposes of the [[Fifth Amendment to the United States Constitution|Fifth Amendment]]—which states, "No person shall ... be deprived of life, liberty, or property, without due process of law"—slaves were understood to be property.<ref>{{cite book|author=Jean Allain|title=The Legal Understanding of Slavery: From the Historical to the Contemporary|url=https://books.google.com/books?id=n_KAvAjkEbsC&pg=PA119|year=2012|publisher=Oxford University Press|pages=119–120|isbn=9780199660469}}</ref> Although abolitionists used the Fifth Amendment to argue against slavery, it was made part of the legal basis for treating slaves as property by ''[[Dred Scott v. Sandford]]'' (1857).<ref>Tsesis, ''The Thirteenth Amendment and American Freedom: A Legal History'' (2004), p. 14. "Nineteenth century apologists for the expansion of slavery developed a political philosophy that placed property at the pinnacle of personal interests and regarded its protection to be the government's chief purpose. The Fifth Amendment's Just Compensation Clause provided the proslavery camp with a bastion for fortifying the peculiar institution against congressional restrictions to its spread westward. Based on this property-rights-centered argument, Chief Justice [[Roger B. Taney]], in his infamous ''[[Dred Scott v. Sandford]]'' (1857) decision, found the Missouri Compromise unconstitutionally violated substantive due process".</ref> Slavery was also supported in law and in practice by a pervasive culture of [[white supremacy]].<ref>Tsesis, ''The Thirteenth Amendment and American Freedom'' (2004), pp. 18–23. "Constitutional protections of slavery coexisted with an entire culture of oppression. The peculiar institution reached many private aspects of human life, for both whites and blacks.... Even free Southern blacks lived in a world so legally constricted by racial domination that it offered only a deceptive shadow of freedom."</ref> Nonetheless, between 1777 and 1804, every Northern state provided for the immediate or gradual abolition of slavery. No Southern state did so, and the slave population of the South continued to grow, peaking at almost four million people at the beginning of the Civil War, when most slave states sought to break away from the United States.<ref name="Foner—2010-14-16">{{harvnb|Foner|2010|pp=14–16}}</ref>

Lincoln accepted the conventional interpretation of the Constitution before 1865 as limiting the federal government's power to end slavery in peacetime and committing the issue to individual states.<ref name="Mackubin">{{cite web|url=http://www.nationalreview.com/books/owens200403251139.asp |title=The Liberator |first=Thomas Owens |last=Mackubin |date=March 25, 2004 |work=National Review |archive-url=https://web.archive.org/web/20120216125903/http://old.nationalreview.com/books/owens200403251139.asp |archive-date=February 16, 2012 |url-status=dead  }}</ref> During the Civil War, however, Lincoln issued the Emancipation Proclamation under his authority as "[[Powers of the President of the United States#Commander-in-Chief|Commander in Chief]] of the Army and Navy" under [[U.S. Const. Art. II, §2|Article II, section 2]] of the United States Constitution.<ref>Crowther, p. 651</ref> As such, in the Emancipation Proclamation he claimed to have the authority to free persons held as slaves in those states that were in rebellion "as a fit and necessary war measure for suppressing said rebellion". In the Preliminary Emancipation Proclamation, Lincoln said "attention is hereby called" to two 1862 statutes, namely "An Act to Make an Additional Article of War" and the [[Confiscation Act of 1862]], but he didn't mention any statute in the Final Emancipation Proclamation and, in any event, the source of his authority to issue the Preliminary Emancipation Proclamation and the Final Emancipation Proclamation was his "joint capacity as President and Commander-in-Chief".<ref>Fabrikant, Robert, "Emancipation and the Proclamation: Of Contrabands, Congress, and Lincoln". ''Howard Law Journal'', vol. 49, no. 2 (2006), p. 369.</ref> Lincoln therefore did not have such authority over the four border [[Slave and free states|slave-holding states]] that were not in rebellion—[[Missouri]], [[Kentucky]], [[Maryland]] and [[Delaware]]—so those states were not named in the Proclamation.{{refn|The fourth paragraph of the proclamation explains that Lincoln issued it "by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion".<ref>{{cite web |url= https://www.archives.gov/exhibits/featured_documents/emancipation_proclamation/transcript.html |title= The Emancipation Proclamation |date= January 1, 1863 |type= transcription |publisher= United States National Archives }}</ref>}} The fifth border jurisdiction, [[West Virginia]], where slavery remained legal but was in the process of being abolished, was, in January 1863, still part of the legally recognized [[Restored Government of Virginia|"reorganized" state of Virginia]], based in [[Alexandria, Virginia|Alexandria]], which was in the Union (as opposed to the Confederate state of Virginia, based in [[Richmond, Virginia|Richmond]]).