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Emancipation and the Creation of Modern Liberal States in America and France

From: The Journal of the Civil War Era
Volume 3, Number 4, December 2013
pp. 467-500 | 10.1353/cwe.2013.0073

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He is a man, the equal of all his fellow-men.

He is one of the children of the State.

—Charles Sumner

The Emancipation Proclamation, the Lincoln presidency, and the American Civil War, of course, are topics on which an enormous amount has been written from what seems every conceivable viewpoint. Perhaps only the French Revolution competes as historical subject matter prompting an equal amount of diverse (often fractious) scholarly commentary. It is thus something of a challenge to make room for a fresh perspective. Nevertheless, this article attempts to shed some new light on the historical significance of emancipation by self-consciously widening the interpretive lens. First, it examines the Emancipation Proclamation from the perspective of a burgeoning new literature (both historical and sociotheoretical) on state-building—particularly work focused on the distinctive emergence of modern liberal nation-states in the late nineteenth century. Second, it attempts to simultaneously look at Emancipation from home and abroad—in this case, with special attention to the view from France. Like the Civil War, of course, Emancipation was a momentous international event; so was the development of newly powerful and rapidly modernizing nation-states. Exploring the important links between these two globally significant historical phenomena is the purpose of this inquiry.

Lincoln’s use of executive power in issuing the Emancipation Proclamation was emblematic of a newly emerging form of state power in the nineteenth century. As argued in several companion articles in this special issue of the Journal of the Civil War Era, the act of emancipation as a concrete historical event involved thousands of important and complicated changes in and of itself. But as the visual and representational material included in this special issue also make clear, the Emancipation Proclamation was something more than the sum of its discrete parts (interesting though it is to historically and legally parse those parts). That “something more” is reflected in how Emancipation and the proclamation captured and represented a series of dramatic changes underway in the nature of nineteenth-century governance. In the United States, as a consequence of Civil War and Emancipation, traditional American conceptions of such fundamentals as rule and right, sovereignty and property, state and citizenship, and the relationship of public power and private liberty were all in flux and up for grabs. And the realignment of public powers and individual rights that resulted from the crucial legal and political choices made during these crises generated a new constitutional regime.

We refer to this basic reconfiguration of legal and political power in terms of the invention of modern liberal states. While an elaborate and concrete specification of the theoretical and historical underpinnings of modern liberal statecraft is beyond the bounds of this short article, Emancipation is particularly illuminative of three chief characteristics: the extension and consolidation of state power and sovereignty; the individualization and internationalization of notions of right; and the constitutionalization of systems of law and government. The late nineteenth century was awash in new theories and practices of sovereignty and nation-state power. From Francis Lieber’s Introductory to a Course of Lectures on the State to Édouard Laboulaye’s L’État et ses Limites, to Johann Kaspar Bluntschli’s Theory of the Modern State and beyond, late-nineteenth-century commentators were aware that they were witnessing the development of new forms of state power and unprecedented elaborations of sovereignty. Central nation-states consolidated around new positive conceptions of sovereignty and administration that radically extended their reach into economy and society. And though notions of individual right are mistakenly contraposed to extensions of state power, in late-nineteenth-century liberal states this unambiguous centralization of authority was only complemented by the increased individualization of right (frequently by drawing on international law and an emerging language of human rights). This new equilibrium of central state powers and individual right was ultimately mediated and legitimated by an equally unmistakable turn to law in the late nineteenth century—particularly public law and constitutional law. What Leon Duguit dubbed the “Transformation of Public Law” underwrote a resurgence in constitutionalism as theorists, jurists, and politicians took great pains to make sure that the newly created liberal state was also a distinctly legal or...



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