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Albany Law School professor Paul Finkelman speaks to a class as part of his campus visit to deliver the John Marshall Harlan Lecture.

Harlan Lecture speaker analyzes Lincoln’s view of Kentucky during the Civil War

Although Kentucky remained in the Union during the Civil War, its citizens were sharply divided in their loyalties as its sons joined the armies of both the North and the South. As a border state, Kentucky also played a key role in the timing of President Abraham Lincoln’s issuing of the Emancipation Proclamation and in the outcome of the war.

Explaining that rather complicated state of affairs was at the heart of Albany Law School professor Paul Finkelman’s lecture titled “‘BUT I NEED KENTUCKY’: Lincoln, Emancipation, and the Importance of the Bluegrass State.” The address was given March 5 in the William T. Young Campus Center gym as part of the John Marshall Harlan Lecture Series.

For the quote in his lecture’s title, Finkelman drew from a meeting Lincoln had with a delegation of ministers early in the war. He said that when the ministers assured Lincoln he would have God on his side if he freed the slaves, the President is said to have responded, “I would like to have God on my side, but I need Kentucky.”

“In many ways, Kentucky is central to the process leading to emancipation,” Finkelman said.

That was true, Finkelman said, because Kentucky was one of four loyal slave states—Delaware, Maryland, and Missouri were the other three—that formed a border between North and South and that Lincoln believed must be secured before he could win the war and abolish slavery.

Finkelman explained that Kentucky’s geography made it the most strategically important border state.

“If you put a Confederate army on the northern border of Kentucky, you stop all traffic on the Ohio River. This army would be within a day’s march of Indianapolis, two days from Columbus and Pittsburgh, and a half hour of rowing from Cincinnati. All the railroads in the lower Midwest would be endangered.

A Confederate army in Kentucky would completely destroy the ability of the United States to send troops and materiel rapidly from one part of the country to the other.”

As Lincoln is determining war strategy, he is also wrestling with the issues involved in ending slavery. He concludes that he cannot act on slavery until he has an enabling constitutional theory, political support in Congress, popular support in the North for re-election, and a sense that he will win the war.

Eventually, he decides that the war changes constitutional law, Finkelman said, and empowers the commander-in-chief to do things he would not otherwise have the authority to undertake. Lincoln determines that, while he cannot interfere with domestic policy in the Union states, he can free slaves in the Confederate States of America, which are not under constitutional protection. He further concludes that the fugitive slave clause in the constitution does not apply to foreign countries, and that slaves can be considered contraband of war.

Thus he issues the Emancipation Proclamation in the fall of 1863 and makes it effective January 1, 1864.

A key concept in why Lincoln did not act to abolish slavery at the outbreak of the war lies in the differing purposes each side espoused, Finkelman said.

“The South went to war to preserve slavery and not over states’ rights,” he said. “Lincoln went to war to preserve the constitution and the Union. If you read the secession documents of South Carolina, Texas, Mississippi, Florida, Georgia, they all say the same thing—we are seceding over slavery. Lincoln didn’t go to war to end slavery, yet he’s told immediately that he needs to do so.”

Finkelman said that Lincoln did not delay the Emancipation Proclamation over personal views toward slavery, but because of constitutional, strategic, and political considerations.

“His whole political career, Lincoln opposed slavery whenever he could,” he said. “He said he was naturally anti-slavery, that it was wrong to enslave people. His father was a member of an anti-slavery church in Kentucky, and Lincoln followed in his father’s footsteps.”

Finkelman is the President William McKinley Distinguished Professor of Law and Public Policy and a senior fellow in the Government Law Center at Albany, and a fellow in Law and Humanities at Harvard Law School.

The lecture series is named after U.S. Supreme Court Justice John Marshall Harlan, an 1853 graduate of Transylvania’s law department. It is made possible by a gift from the Lexington law firm McBrayer, McGinnis, Leslie & Kirkland, PLLC.

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