Limits on the "war power"
SLevinson at law.utexas.edu
Sat Jan 28 13:47:31 PST 2006
Assume that the Emancipation Proclamation was constitutional as an exercise of the President's "war power" (as distinguished, presumably, from his "commander-in-chief" power inasmuch as the EP was not directed to the military. It directly expropriated the most valuable property of many white Southerners.) But, of course, the emancipated slaves got, as a Union general put it, "nothing but freedom." That is, they did not get their "forty acres and a mule" necessary to establish them as reasonably autonomous agents in a free-market economy. Moreover, of course, there is an argument of compensatory justice, that uncompensated slave labor had created much of the value of the white Southerners' holdings. In any event, if the EP was constitutional, then would it have been equally constitutional, on Jan. 1, 1863, for Lincoln to have declared null and void existing land titles and to direct that each freed slave be recognized as having title to some acreage (whether forty acres or not) of the now-former-master's land and a mule or horse? One might say, of course, that slavery was immoral and that ownership of the land was not, but the EP said nothing about morality in its cold-minded argument of relationship to successful prosecution of the War.
A question for David: I can respect a lot of libertarian arguments, but even Bob Nozick seemed to require justice in the initial allocation of resources. To what extent does the injustice and exploitation of slaves justify land reform? Same question re South Africa: Does the history of the apartheid regime justify "land reform" at less than full market-value compensation for the present (white) landowners who took advantage of the 1913 land laws that basically prohibited blacks from owning most of South Africa?
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