Presented at the 5th Inter-University Graduate Student Conference at Cornell Law School, March 2009.
Few scholars question the historical importance of the Emancipation Proclamation. However, unlike the Declaration of Independence or the Northwest Ordinance of 1787, no scholar has argued that the Emancipation Proclamation ought to be recognized as a constitutional document, nor offered systematic answers to important questions such an argument would raise: What does it mean to say that something is a “constitutional document”? How can we identify such documents? And, finally, why should we care either way? This paper not only argues that the Proclamation ought to be recognized as a constitutional document, but also attempts coherent and cohesive answers to these questions and, in the process, hopefully provide a new perspective on what the Proclamation’s broader role in the American constitutional tradition is, or ought to be. I argue that constitutional documents are transformative historical documents that express foundational principles which have, at some point and in some way, been endorsed formally or informally by the People. Constitutional documents thus play a role in expressing and preserving a kind of American constitutional ethos, and can carry out that role in a concrete way as principled guides for constitutional interpretation and amendment-making. The Emancipation Proclamation possesses each of these criteria, including a special constitutional status and authority derived from its constitution-like ratification by loyal state governors at the rarely discussed Altoona Conference of September, 1862, and adopting, in principle, in the Thirteenth and Fourteenth Amendments.
Date of Authorship for this Version
Penney, Jonathon W., "The Emancipation Proclamation as a Constitutional Document: Why it is and Why it Matters" (2009). Cornell Law School Inter-University Graduate Student Conference Papers. Paper 37.