Lincoln’s Emancipation Proclamation and the Failure to Comply with the Fifth Amendment Taking Requirement

On January 1, 1863, Abraham Lincoln declared all slaves in the Confederate States to be free through his Emancipation Proclamation. It was a significant step toward the national abolition of slavery—it was neither the first nor the last step. It also violated the Fifth Amendment’s just compensation requirement. Following the Civil War, the Supreme Court attempted to rectify this constitutional crisis by ruling that the Constitution did not apply to the states in rebellion during the war. Following the War, the Thirteenth Amendment formally made slavery unconstitutional throughout the United States. Had the Emancipation Proclamation applied to the northern states, it would have constituted a Fifth Amendment taking. However, it was not a taking because it only applied to the southern states which did not receive Constitutional protection, according to the Court in Texas v. White. Section II will show the Constitutional basis for a governmental taking; Section III will examine the value that slavery represented to the Confederacy and the South’s economic motivation for perpetuating slavery. Section IV will analyze the Supreme Court’s removal of Constitutional protections for the Confederacy in its Texas v. White decision. Section V will reconcile the Emancipation Proclamation, the White decision, and the Thirteenth Amendment in this context