The District of Columbia Emancipation Act

I'm a few days late, but 145 years ago last week (April 16, 1862) President Lincoln signed the District of Columbia Emancipation Act, ending slavery in the District. The Act provided for the immediate emancipation of the District's slaves and compensation to loyal Unionist masters. Compensation was limited to no more than $300 for each slave and $1MM in total.

The Act established a Commission, composed of three members appointed by the president and confirmed by the Senate. Former masters were required within 90 days to submit claims to the Commission. Within nine months, the Commission was to report its findings and "appraisement" to the Secretary of the Treasury, who was then to authorize payment. The federal government ultimately paid almost $1MM in compensation for the freedom of 3,100 slaves.

Since you can read about the Act in a number of places, I thought I'd focus on one particular issue: was the Act constitutional? The question, as it turns out, is quite interesting.

The Fifth Amendment provides (emphasis added):

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

One issue that immediately stands out is whether the limitation on compensation of up to $300 per slave was "just." Immediately before the War, the market value of prime field hands was more than $1,000. I don't know what the market value of slaves in the District was on April 15, 1862. However, if it exceeded $300, the law awarded patently inadequate compensation and was unconstitutional in that respect.

But there was an even more serious objection. The Fifth Amendment required that any taking, even a properly-compensated one, be "for public use." Emancipation was certainly effected for a public purpose, but the emancipated slaves were not being taken for public use. The Act did not provide that the government was going to take title to the freedmen or put them to work involuntarily. To the contrary, the whole idea was that the former slaves were free.

Interestingly, the public use/public purpose distinction remains a "hot button" topic in constitutional law today, epitomized by the Supreme Court's decision in Kelo v. City of New London (2005). There are thousands of web pages devoted to Kelo, so I won't go into great detail, but briefly the City condemned and took private real property (people's homes) pursuant to a development plan designed to revitalize an allegedly distressed area, resulting in increased jobs and tax income. The City was not going to retain title to the property, but rather turn the land over to developers.

The Supreme Court upheld the taking as constitutional 5-4. In his majority opinion, Justice Stevens expressly conceded that the taking was not for "public use." Nonetheless, the fact that it was for a "public purpose" make the taking constitutional.

Kelo, however, was the culmination of a line of Supreme Court cases developed in the mid-Twentieth Century. Although Justice Stevens tried to trace concept back further (he cited a Nevada state court case from 1876), even he conceded that, "in the mid-19th century" "use by the public" was generally considered "the proper definition of public use."

In short, measured by constitutional understanding at the time, the District of Columbia Emancipation Act was probably unconstitutional both because it did not provide for "just compensation" and because the takings it effected were not for "public use."