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View Diary: Justice Thomas Gets One Right (130 comments)

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  •  Interesting question (none)
    Never actually thought about that one.  But off the top of my head the following thoughts come to mind.  First, Emancipation Proclamation didn't really free anyone because it did not apply to either slave states that stayed with the Union or slave states that already surrendered.  So it was a political act to encourage more rebellion in the Confederacy.  Second, takings clause prevents the government "taking" of your property for its own use.  The ban on you having property to begin with is generally not considered a taking.  (As an analogy imagine that tomorrow government bans the possession of certain types of weapons.  Even though you have it, as of date certain you must relinquish it or face criminal penalties.  That, as far as I understand, is not a taking within the meaning of the 5th).

    However, I think that there can be a plausible argument made that by issuing the Emancipation Proclamation, Lincol exceeded his own powers.  He essentially unilaterally changed the law of the law, without getting Congressional approval.  That is a very broad assertion of Presidential power.  So perhaps there were issues from that perspective.  (None of which of course detracts from the morality of the decision).

    •  interesting question (none)
      Appreciate your feedback.  Would submit that by making slaves "forever free" he transferred ownership from the slaveholder to the (former) slave, essentially a "taking" and then a "giving" - very similar to the eminent domain issue recently decided by SCOTUS.  Interestingly, Lincoln might have argued precisely as the deciding opinion, that the state may seize and transfer property for higher economic purposes (i.e., slave labor would be of higher value in a free market economy), although that still does not dispose of the lack of compensation question.

      It's amazing how the issues resurface, as in Roberts decision striking at habeas corpus in Padilla.

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