Was There a Confederate Emancipation Proclamation?

EmancipationProclamationThis is another in a series of posts on slavery, the Constitution and the Civil War written for the Marquette University celebration of the sesquicentennial of the Emancipation Proclamation.

Although the Civil War was, at its core, fought to preserve slavery, during the war concern for the preservation of the Confederate nation led some of the breakaway country’s leaders to contemplate the unthinkable—the emancipation of African-American slaves in exchange for their service in the Confederate military.

Although Confederate diplomats, in their search for support in England and France, somewhat disingenuously implied that the South planned to eventually abandon slavery during the early years of the Civil War, Southern efforts to abolish the “peculiar institution” really began in late 1863 with Confederate general Patrick Cleburne of the Army of the Tennessee. Fearing the worst for his adopted country, the Irish-born Cleburne circulated a written document to his fellow officers that proposed that the Confederacy replenish its ranks with armed black soldiers who would be brought into the Rebel Army with a promise of freedom for themselves and their families. As Cleburne must have realized, the widespread emancipation of black soldiers and their families would make it impossible to keep other African-Americans as slaves once the war was over.

Cleburne’s memo eventually came to the attention of Confederate President Jefferson Davis and his cabinet. Although it initially attracted little support, continued military setbacks prompted a number of Confederate leaders to reconsider the proposal. Included on the list of those intrigued by Cleburne’s suggestion included Confederate Secretary of the Treasury Judah Benjamin, five separate Confederate state governors who endorsed the black soldier proposal, General Robert E. Lee, and Jefferson Davis, himself. In spite of evidence of growing support for the idea, the majority of white Confederates who spoke on the issue continued to oppose emancipation, even for military purposes.

However, by March 13, 1865, the situation was extremely dire as the relentless press of the armies under the command of Ulysses S. Grant drove into the heart of Virginia, threatening Richmond, the Confederate capital. After a plea from Robert E. Lee for black troops, the Confederate Congress, under siege in Richmond, that day authorized the recruitment of black slaves into the Southern Army.

Although this particular statute technically freed no slaves—under its terms only slaves who were voluntarily freed by their owners could enlist in the Confederate Army—opposition to the end of slavery was still so strong that the bill only passed by narrow 40-37 and 9-8 margins in the Confederate House and Senate. At the same time, it was apparent that if this program was successful, a more aggressive emancipation program would have followed.

As it turned out, the Confederacy did not last long enough to see if the policy begun in March 1865 would have led to widespread emancipation in the South. About 200 newly freed slaves were mustered into the Confederate military in Virginia but Lee’s surrender to Grant at Appomattox on April 9, 1865, eliminated the possibility of the further use of black Confederate troops.

Obviously, the Confederate turn to the use of manumitted African-American troops in the last days of the Civil War was first and foremost an act of desperation and not likely the result of a newly found commitment to the cause of anti-slavery. However, the episode does further accentuate the fact that the Civil War doomed slavery. Even if the Confederacy in some alternate timeline figured out how to avoid the inevitable and managed to survive the war intact, it is almost certain that slavery would not have survived in that postwar C.S.A.

Did the Confederacy adopt a policy of emancipation? Not really, but it was moving toward a decision to do so as it became apparent that only radical measures could save the Confederate nation. However, time ran out on the Stars and Bars before the Confederate government could act on a more broad-based emancipation.

The story of support for emancipation among Confederates during the Civil War is told in great detail in Bruce Levine, Confederate Emancipation: Southern Plans to Free and Arm Slaves During the Civil War. Oxford University Press, 2005.


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Farewell to Ronald H. Coase

CoaseAlmost every student who has attended law school in the past 40 years has encountered Ronald Coase and the Coase Theorem. Even professors who disagree with Coase feel compelled to expose their students to his famous theorem, even if only to rebut its argument. As a long-time teacher of both Torts and Property who is not an advocate of law and economics, I cannot imagine teaching either course without references to the Coase Theorem as a way of evaluating the correctness of legal rules.

In a nutshell, Coase, widely acknowledged as the founder of the law and economics movement, posited that in a world without transaction costs, individuals would bargain with each other to achieve the most efficient use of resources, and legal rules would be irrelevant. As a consequence, in a world with transaction costs, Coase seemed to suggest that legal rules should be constructed so that they favor the most efficient user, since that is the party who will eventually end up with the resource . The Coase Theorem was presented to the world in a 1960 article entitled, The Problem of Social Cost, which appeared in the Journal of Law and Economics and is still the most frequently cited law review article in history.

Sadly, Robert Coase died last week in Chicago at the age of 102. Born in London and educated at the London School of Economics, Coase first achieved widespread recognition in 1937 with the publication of his article, The Nature of the Firm, which introduced the concept of transaction costs and explained why large economic deals were handled by large integrated firms rather than by temporary market-based alliances of suppliers.

Coase came to the United States in 1951 as a professor at the University of Buffalo, and moved to the University of Virginia in 1958. He was a member of the University of Virginia’s Thomas Jefferson Center for Political Economy when he published his most famous article. In 1964, he left Virginia for the University of Chicago, where he remained until his death.

Coase was awarded the Nobel Prize in Economics in 1991. His final book, How China Became Capitalist, was published in 2012 when Coase was 101 years old.


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A Sensible Approach to Reforming College Sports

The modern university is essentially a corporation with four lines of production, the four lines being: education, research, medical services, and entertainment. Understanding the proper role of athletics in the university framework is complicated by the fact that sports are both part of the university’s educational “mission,” and the primary form of public entertainment it produces.

The confusion between athletics as a component of undergraduate education and athletics as entertainment has produced no end of problems for universities and for the NCAA, the primary regulator of college sports.

The primary source of the confusion is the labeling of participants in revenue generating college sports as student athletes, as though they were somehow ordinary students who just happened to choose to participate in sports as an extracurricular activity, as opposed to college radio, theater, or their school’s African-American heritage organization.

In reality, scholarship athletes are paid entertainers whose wages are, thanks to the salary cap imposed by the NCAA and tis member schools, paid in kind in the form of free food and lodging, free textbooks, the opportunity to attend classes and pursue a degree, and special tutoring not available to ordinary students. If these particular university employees lose interest in their sport, or simply fail to perform at an acceptable level, their employment can be terminated.

On the other hand, the educational role of athletics is related to the Jeffersonian view that education involves the development of both the mind and the body. While athletic opportunities for ordinary students are primarily supplied by Physical Education Departments and intramural sports, the opportunity to play for an intercollegiate sports team should be part of a well-rounded undergraduate curriculum. While only a minority of students will enjoy the direct benefits of participating in intercollegiate athletics, the same could be said for the Classics, Slavic Languages, or Physics departments and that fact in no way diminishes the importance of having the opportunity.

However, because we pretend that scholarship athletes are real students, actual students—those who chose to attend the college of university for reasons other than that they were being paid to do so—are precluded from participating in intercollegiate athletics unless they earn one of the handful of usually meaningless walk on positions or else attend a Division III school where scholarships are not awarded.

This confusion in regard to the educational and entertainment lines of production has been particular problematic in regard to Title IX, which is a statute that was intended to apply to educational opportunities generated by the college. By counting roster spots on big time college football teams as “educational opportunities,” it has been necessary for universities to eliminate numerous male sports teams to remain Title IX compliant. This has produced absurd results, like the fact that tiny Ripon College, with fewer than 1000 students sponsors almost as many varsity athletic teams for its students (21) as the 40,000+ student University of Wisconsin-Madison (23).

Once understood, the education/entertainment problem can be addressed by the following steps:

  1. Universities should formally acknowledge the Education versus Entertainment distinction.
  2. Sports-related scholarships for all sports other than men’s football and basketball should be eliminated. There is absolutely no justification for paying students to participate in sports that are of no interest to the ticket-purchasing public when regularly enrolled students would be happy to fill their roster spots and when other more academically promising students have unfulfilled financial needs. If other sports, like women’s basketball or men’s baseball or ice hockey, are established money-making enterprises, as they are at some schools, then athletic scholarships for these sports can be retained as part of the university’s entertainment payroll. Acknowledging that scholarship athletes are entertainment employees of the university (and only incidentally students) will make it easier to address the thorny issue of appropriate levels of athletic compensation.
  3. Universities with “scholarship-funded” teams may also operate non-scholarship varsity teams in the same sport. To some extent, club sports are already fulfilling this role, but club teams are usually underfunded and lack professionally trained coaches. For Marquette, this would mean that the university would continue to operate its Division 1 professional basketball team (composed of players very few of whom would otherwise be at Marquette), but it would also sponsor a second men’s team recruited from the ranks of its student body. While the professional team would continue to play a national schedule, the true student team would primarily compete against similar teams from Wisconsin and the upper Midwest.
  4. Recruiting of athletes for non-scholarship teams should be discouraged to the extent possible. In this regard, athletics should be treated no differently than potential members of the university symphony, marching band, or the dance and theater programs.
  5. The NCAA should be broken up into two separate bodies, one dealing with athletics in the educational sector and the other with what are essentially minor league professional sports.
  6. All coaches associated with the educational sector should be members of the university’s faculty with appropriate qualifications for physical educators.

If implemented, these changes would go a long way to eliminate the hypocrisy in contemporary college sports and would greatly facilitate the revival of physical education as an important academic discipline within undergraduate education.

On a personal note, as an undergraduate, I was a reserve outfielder-first baseman on the baseball team at Oberlin College, a Division III college with an important athletic tradition—Moses Fleetwood Walker, the first black major league baseball player, legendary football coach John Heisman, and the last Ohio team to beat Ohio State in football—but by the 1970’s, the college placed very little emphasis on sports. Even so, I still count my experiences as a member of the baseball team as one of the most valuable parts of the very good undergraduate education I received there.



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