By Steven J. Grisafi, PhD.
As unfortunate as it was, the three-fifths clause within the Constitution of the United States made slavery part of constitutional law. When each state ratified the Constitution they accepted the assertion that slavery was permitted within the union they joined. The fifteenth president, James Buchanan, was of the opinion that the federal government had no authority to compel a state to remain in the union if it chose not to remain. The Constitution provided no guidance upon such a possibility. However, the Constitution was a binding contract for all of its aspects.
While all laws can be changed, the insertion of the three-fifths clause, making slavery part of constitutional law, meant that only a constitutional amendment could revoke the permission granting slave ownership within the United States. As such, neither an executive order, nor statutory law, could revoke that permission. Consequently, President Lincoln did not have the authority to issue his Emancipation Proclamation revoking the permission granted for slavery. If, indeed, the states of the Confederacy were to be taken at that time as having exited the Union, and this is the presumption because at the conclusion of all hostilities each Confederate state was required to be re-admitted to the Union, then the effect of the Proclamation could exercise only within the Border States of Delaware, Maryland, Kentucky and Missouri, which chose to remain within the Union while still granting the right to slave ownership.
The issue as to whether or not a state had the right to secede from the Union after its admission is now a moot point. The matter was settled militarily by the surrender at Appomattox. The revocation of the permission granting a right to slave ownership is now also a moot point. The required constitutional amendments have been ratified. Yet, it is for the memory of President Buchanan that justice is due. President Lincoln acted unlawfully issuing his Emancipation Proclamation even if only acting within the Border States. That the Union had not sought alternative means of applying persuasion to the Confederacy, such as embargo, the fault lies with Lincoln for choosing war.