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Nomde P. Lum

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The Confederate Constitution
By Nomde P. Lum   

Last edited: Friday, November 28, 2003
Posted: Monday, March 04, 2002

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The Confederate Constitution had some good ideas, if you leave out the slavery.

Introduction

On January 25, 1865, Jefferson Davis, President of the Confederate States of America, vetoed a bill which had passed the Confederate Congress. Davis believed that the bill violated the Constitution-that is, the Confederate Constitution. In his veto message, Davis discussed the constitutional provision which the bill allegedly violated. The provision in question was different from anything contained in the United States Constitution, and had been put in the Confederate Constitution in 1861 by the Confederacy’s Provisional Congress. Davis explained the importance of correctly interpreting this clause of the Confederate Constitution:

“It is important that its spirit and object should be correctly determined now, because many members of the present Congress were also members of the Provisional Congress, which adopted this new clause, and legislation by them will be deemed hereafter to possess a peculiar value as a precedent, and as a contemporaneous interpretation of the Constitution by those best acquainted with its meaning.”

In discussing the importance of setting a correct precedent for the interpretation of the Confederate Constitution, Davis seems to have overlooked one minor detail, viz, that in early 1865 the Confederacy was collapsing all around him under the blows of the Northern armies. Very soon the Confederacy would be no more, and the Confederate Constitution, like a piece of Confederate currency, would become a legally worthless scrap of paper. In discussing the importance of setting a good precedent for future generations of Southerners who might interpret the Confederate Constitution, Davis seemed blissfully unaware that future generations of Southerners would not be living under the Confederate Constitution. Davis seemed as blind to reality as the captain of a sinking cruise liner who, as the waters of the ocean seep into his cabin, sits at his table drawing up the guest list for next week’s dinner party.

It is easy to view with amusement the actions of a President determined to fulfill to the very end his inaugural pledge that “I will faithfully execute the Office of President of the Confederate States, and will to the best of my Ability, preserve, protect and defend the Constitution thereof.” However, there is a certain nobililty in this famously stubborn and upright man insisting, even while his country was drawing its dying gasps, that the Constitution of the country be preserved inviolate. Davis’ enemies accused him of violating the Constitution. Davis certainly locked up pro-Northerners, just as Lincoln locked up pro-Southerners, but Davis, like Lincoln, could be defended by reference to the government’s constitutional power to lock people up when the public safety so requires during a “Rebellion or Invasion.” Davis saw himself as the defender, not the violator, of the Confederate Constitution, and he vetoed several bills passed by the Confederate Congress which he saw as contradicting the terms of that instrument.

The Confederate Constitution was worth protecting. Whatever one may think of the Confederate cause in general, the fact is that, apart from the ever-present issue of slavery, the Confederacy had drawn up a Constitution with many valuable provisions. I shed no tears for the disappearance of the institution of slavery, which the Confederate Constitution, of course, attempted to safeguard. It is unfortunate, however, that the United States has thrown out the baby with the bathwater, since the non-slavery-related clauses in the Confederate Constitution not only compare favorably with similar clauses in the United States Constitution, but are worthy of adoption even today, as amendments to the latter instrument.

I propose to analyze the various features of the Confederate Constitution, particularly those features which appear different from the provisions of the U. S. Constitution on which it is based. I begin by discussing the origins of the Confederate Constitution, which was adopted by the deep-South states shortly after their secession and later accepted by the other Southern states which joined the Confederacy.

Framing the Constitution

Delegates from the secessionist states met in Montgomery, Alabma and, on February 8, 1861, the delegates adopted a Provisional Constitution for the seceded states, to take effect immediately, without any need for ratification by the states themselves. The delegates said that they were adopting the Provisional Constitution “in behalf of” what were described as “the sovereign and independent States of South Carolina, Georgia, Florida, Alabama, Mississippi, and Louisiana.”

The Provisional Constitution created a Congress, whose members, remarkably enough, happened to be the very men then serving as delegates in Montgomery. The new Congress chose a President-Jefferson Davis-and they were off to the races.

The government under the Provisional Constitution was a revolutionary government, set up to meet the vital needs of the day, viz, whupping Yankees. Under “states’ rights” principles, the creation of the Provisional Constitution left something to be desired. Delegates from six states had proclaimed themselves to be a Congress vested with certain legislative authority over Secessia, and the self-proclaimed Congress had made Davis the President of the seceded states, with power to command the army (which was pretty much the point of this exercise). However, under Southern legal theory, each secessionist state was an independent country, having severed its connection to the United States. The Provisional Congress and the provisional President didn’t have any legal status; technically they were revolutionaries who wished to assume the responsibility of coordinating the struggle against the North.

This was an unsatisfactory situation. In spite of states’-rights rhetoric, the Provisional Congress had assumed the power to legislate for the seceded states, without the specific approval of those states themselves. The military threat from the North had overcome the scruples of politicians against treading on the prerogatives of the states. This revolutionary situation was not intended to last forever. The Provisional Constitution was set to expire in one year, or even before that if a permanent Constitution was adopted. A committee was appointed to draw up a Permanent Constitution. After the committee submitted its work, the Provisional Congress debated and approved the Permanent Constitution.

Belatedly acknowledging the authority of the states, the Provisional Congress provided that the Permanent Constitution was only to take effect in those states which specifically approved it. The ratification of the Permanent Constitution was up to the conventions summoned in the secessionist states to take their states out of the Union. It was only fitting that these conventions, on behalf of their respective states, would have the authority to approve a new Constitution after withdrawing themselves from the old U. S. Constitution. After five state conventions approved the proposed Permanent Constitution, the latter would formally replace the Provisional Constitution.

On April 12, the attack on Fort Sumter started the Civil War. On April 29, Jefferson Davis informed the Provisional Congress that the Permanent Constitution had been ratified. As new state governments (or factions claiming the title of state governments) sought membership in the Confederacy, they were placed under the provisions of the Permanent Constitution, which would have actually been permanent if the fortunes of war had been different. I will review features of the Permanent Constitution which highlight the differences, or in some cases the similarities, between the United States and Confederate Constitutions. My references to “the Confederate Constitution” should be read to mean the permanent Constitution of the Confederate States. If I refer to the U. S. Constitution or to the Provisional Constitution of the CSA, I will so state.

Transitional Provisions

To ease the transition from the Provisional Constitution to the Permanent Constitution, the latter legitimated the debts incurred under the former, and kept the laws which had been passed under the Provisional Constitution in effect until changed. The officers of the Provisional Government would remain in office until replaced. President Davis stayed on as Provisional President until he was elected unopposed as the first (and, as it turned out, the last) President of the Confederacy under the Permanent Constitution. Other transitional provisions dealt with the number of members each state would have in the House of Representatives pending a census, and similar housekeeping matters.

Senators and Representatives, under the U. S. Constitution, were supposed to be U. S. citizens for seven years (in the case of Representatives) or nine years (in the case of Senators) before being eligible to sit in Congress. The Confederate Constitution allowed any Confederate citizen, even a citizen who had been naturalized the day before, to sit in Congress if he met age and residency qualifications. The Confederate framers realized that the Confederate States had only been in existence a few weeks when the Constitution was adopted, and thus it would be impossible to have been a citizen for seven or nine years.

Rhetorical and Stylistic Changes

The Preamble of the United States Constitution had contained no reference to the Deity, but the preamble to the Confederate Constitution included a passage “invoking the favor and guidance of Almighty God.” This might mean that the framers of the Confederate Constitution were more pious than the framers of the United States Constitution. It might also mean that, when the Confederate Constitution was written, the framers felt that the prospect of being invaded by the populous and powerful North required the invocation of divine assistance. There’s nothing like a pending invasion to concentrate the mind and inspire piety on the part of those about to be invaded.

The Confederate Constitution copied certain provisions in the U. S. Constitution related to slavery, but there was a difference in style. At the time of the adoption of the U. S. Constitution, the thirteen states (including the Northern states) all recognized slavery. Nonetheless, the existence of slavery seemed to be sufficiently embarrassing that the framers of the U. S. Constitution used circumlocutions to refer to slaves-“other persons,” “person[s] held to service or labor.” The Confederate Constitution eschewed this euphemistic language and referred specifically to “slaves.” The U. S. Constitution contained provisions related to slavery but tried to paper over what it was doing. The Confederate Constitution freely used the “s” word.

In deference to states’-rights rhetoric, the powers of the Confederate Congress were said to have been “delegated” instead of “granted.” In practice, this language doesn’t seem to have made a great deal of difference.

The amendments to the U. S. Constitution (there were twelve at the time) were not tacked on at the end of the document, but were incorporated into the text itself. The first eight amendments to the U. S. Constitution (most of the Bill of Rights) were put in Article I, Section 9, the clause dealing with restraints on Congressional power. The substance of the Eleventh Amendment, which limited the jurisdiction of the federal courts, was put in Article III, the judicial article. The Ninth and Tenth Amendments, dealing with the reserved rights and powers of the people and the states, were included in Arcitle VI. The Twelfth Amendment, concerning Presidential elections, was put in Article II, which dealt with the President.

There is one stylistic change which has been mistakenly interpreted as substantive. The Preamble to the U. S. Constitution begins with the words “We the People of the United States.” The Preamble to the Confederate Constitution begins with the words “WE, the People of the Confederated States, each State acting in its sovereign and independent character.” Various theorists have interpreted the Preamble of the U. S. Constitution as nationalistic because it allegedly speaks in the name of the people of the whole country, rather than in the name of individual states, and under this interpretation, the opening words of the Confederate Constitution’s Preamble have been interpreted as making the Confederate Constitution more state-oriented than the U. S. Constitution. Although some provisions of the Confederate Constitution are more state-oriented than comparable provisions in the U. S. Constitution, the opening words of the Preamble simply declare specifically what is clearly implied in the Preamble to the U. S. Constitution.

The framers of the U. S. Constitution considered a Preamble which said “We the people of” and followed this with the names of the thirteen then-existing states. However, this idea for the Preamble was dropped, not out of nationalism, but because it might be embarrassing if some states chose not to ratify the Constitution. In such a case, the listing of all the states would be misleading because it would include states which had not ratified. Thus, the phrase “United States” was inserted into the Preamble instead of a list of states.

The term “United States” in the federal Constitution is used in the plural form. Take, for instance, Article II, Section 1, which says that the President shall get “a Compensation,” but may not during his term get “any other Emolument from the United States, or any of them” (emphasis added). Examine also Article I, Section 9 (United States referred to as “them”); Article II, Section 2 (treaties made by the United States are described as having been made “under their authority” (emphasis added)); and the Eleventh Amendment (barring federal lawsuits by certain people against “one of the United States”). This indicates that the “United States” is a union of states, not a consolidated mass. The opening words of the Confederate Constitution’s Preamble simply make this point explicit.

Another stylistic change had potentially more significance. The Ninth Amendment to the U. S. Constitution, like the rest of the Bill of Rights, was incorporated into the body of the Confederate Constitution, with a slight modification. The Ninth Amendment said that “[t]he enumeration in the Constitution, of certain rights, shall not be construe d to deny or disparage others retained by the people.” The Confederate version referred to “the people of the several states,” indicating that the concept of “the people,” applied to the whole of Confederate territory, was objectionable to Confederate framers. However, the term “the people” is used in other parts of the Confederate Constitution, so it’s hard to tell exactly what the modification of the Ninth Amendment means.

States’ Rights

As one might expect in a document drawn up by people who were continually preaching the virtues of states’ rights, the Confederate Constitution, in many areas, allowed more power to the states than the states had enjoyed under the U. S. Constitution. In some cases, however, the powers of the states were restricted to a greater extent than the U. S. Constitution had allowed. It is particular worthy of notice that-predictably but nevertheless unfortunately-the Confederate Constitution betrayed the professed ideals of its founders by *violating* states’ rights in order to promote the interests of slavery.

One interesting feature of the Confederate Constitution is that it does not explicitly recognize a right of secession on the part of the states. A proposal to declare that states had the right to secede from the Confederacy was defeated, with only the South Carolina delegation supporting the proposal (South Carolina was probably voted Most Likely to Secede). It’s a good thing that the Provisional Congress met in secret when it drew up the Confederate Constitution, because if word of the vote against secession had gotten out, Northerners would have had a jolly time poking fun at the Confederate leadership.

Far from declaring a right to secede, the Confederate Constitution, in the Preamble, lists, among the objectives of the Constitution, the purpose “to form a permanent federal government.” This replaces the language in the U. S. Constitution’s Preamble about a purpose “to form a more perfect Union.” Under Southern legal theory, the right to secede is based on the idea that a Constitution is a contract among states, and that if a powerful group of states violates the Constitution, general principles of contract law allow the other parties to the compact (the Constitution) to withdraw from the Constitution. Such was allegedly the situation which induced the deep-South states to secede: The Northern states had supposedly violated the Constitution, giving the Southern states the power to remedy the situation by withdrawing from the Constitution. Since secession, under mainstream Southern legal theory, presupposes massive violations of the Constitution which the federal government cannot or will not correct, recognizing a right of secession would imply that a large number of Confederate states might violate the Constitution and provide a justification for other states to secede. It is not surprising that the framers of the Confederate Constitution declined to give their states a vote of no confidence by recognizing the possibility of secession, since such recognition would imply that Confederate states would be as heedless of the Confederate Constitution as the Northern states had allegedly been of the U. S. Constitution. Anyway, recognizing a right to secede was hardly the way to show unity in the face of the Yankee menace.

Another proposal, which would have allowed states to practice nullification, was also defeated. Nullification, according to defenders such as the late Senator John C. Calhoun, is a procedure by which a state declares a federal law to be unconstitutional, after which the law may not be enforced within the borders of the nullifying state unless a constitutional amendment specifically affirms the validity of the law which had been nullified. Only a minority of Southern leaders supported nullification, and the Confederate Constitution did not legalize the practice.

Certain economic powers of the states were given recognition under the Confederate Constitution. The U. S. Constitution did not allow states to impose tonnage duties without Congressional approval. The Confederate Constitution allowed states to impose tonnage duties without such approval if the duties were imposed “on sea-going vessels, for the inprovement of its rivers and harbors navigated by the said vessels; but such duties shall not conflict with any treaties of the Confederate States with foreign nations; and any surplus of revenue thus derived shall, after making such improvement, be paid into the common treasury.” Thus, the states could impose certain taxes on foreign commerce in their ports if the tax revenues were used to improve navigation and if surplus taxes were given to the Confederate government. Also, a provision in the U. S. constitution forbidding states from “emit[ting] bills of credit” was deleted from the Confederate Constitution, so I guess that meant that the states of the Confederacy could print their own money.

As a supplement to the power of the Confederate House of Representatives to vote impeachment charges, the Confederate Constitution authorized the states to impeach federal officials: “[A]ny judicial or other federal officer resident and acting solely within the limits of any State, may be impeached by a vote of two-thirds of both branches of the Legislature thereof.” As in the United States, impeachment trials would be held in the federal Senate. I am not aware of any instance in Confederate history when the states made use of their impeachment power. Under the U. S. Constitution, we may have had more impeachment trials (although not necessarily more convictions) if state legislatures were allowed to initiate impeachment prosecutions.

Note, however, that a federal district judge named Swayne, who served “solely withing the limits of” the state of Florida, was impeached by the House of Representatives under the U. S. Constitution early in the twentieth century, and this impeachment was made in response to a request from the Florida legislature. By coincidence, the Florida legislature was Democratic and Swayne was a Republican who had made decisions challenging the Democratic power structure, although surely this had nothing to do with the impeachment. Swayne was acquitted in the Senate, thanks to Republican votes. This shows that, even under the U. S. Constitution, state legislatures can have some influence over impeachments. It is likely that, if state legislatures had been allowed to initiate impeachments under the U. S. Constitution, some unpopular federal officials in a few states would have been impeached, such as a certain judge in Tennessee whose rulings are often denounced as favoring criminal defendants. However, the two-thirds requirement would have kept the number of state impeachments small.

One interesting feature of the clause allowing states to impeach federal officials is the presumption that state legislatures have two “branches.” The U. S. Constitution refers to “the most numerous branch of the State Legislature” (Art. I, Sec. 2; and see similar language in the Seventeenth Amendment). However, this language in the U. S. Constitution has not stopped the state of Nebraska from having a one-house (“unicameral”) legislature. If the U. S. Constitution were the same as the Confederate Constitution, the provision that states could only vote impeachment with the approval of “both branches of the Legislature” would seem to discourage unicameral legislatures, to say the least. If Nebraska, under a Confederate-type Constitution, kept its unicameral legislature, then the legislature would be stripped of the impeachment powers wielded by all other state legislatures, which would put Nebraska into second-class statehood status. Such discrimination against a state on account of its choice on how to structure its own government is a departure from states’-rights principles, and it’s not the only departure which we find in the Confederate Constitution.

The status of slavery in the states provoked much debate in the Provisional Congress when it was discussing the permanent Constitution. Some wanted to prohibit any new state from being admitted to the Confederacy if the state had abolished slavery. Others wanted any Confederate state which abolished slavery to be kicked out of the Confederacy-secession in reverse, so to speak. These proposals were popular, but not popular enough to be added to the Constitution. The states retained the power, under the Confederate Constitution, to abolish slavery. There were a few caveats, however.

First, the Confederate Constitution, like the U. S. Constitution, gave Congress the power to admit new states. Unlike the case under the U. S. Constitution, where Congress had the power to admit new states by a majority vote (subject to Presidential veto), the Confederate Constitution required that any Congressional vote to admit a new state would require “two-thirds of the whole House of Representatives and two-thirds of the Senate, the Senate voting by States.” In all likelihood, this limitation on Congressional power was inserted in order to reduce the likelihood that Congress would admit free states. Similar proposed amendments to the United State Constitution had been considered after Lincoln’s election, as part of the unsuccessful effort to adopt compromise measures to keep the South in the Union.

Interestingly, the South had previously benefited from the provision in the U. S. Constitution allowing a mere majority in Congress to admit a state. In the antebellum years, anti-slavery politicians had opposed the admission of Texas as a state, since Texas allowed slavery and its admission would increase the influence of the South. A joint resolution to annex Texas passed the U. S. Congress in early 1845 by a 152-76 vote in the House and a 27-25 vote in the Senate, and was signed into law by lame-duck President John Tyler. The House majority fell short of the two-thirds which would have been required under the Confederate Constitution. The Senate majority was so narrow that there is no way that two-thirds of the state delegations voted in favor, which is what the Confederate Constitution would have required. After the annexation vote, President Polk sent troops into Texas, entering territory which was claimed by Mexico. This conflict over territory was the purported casus belli of the Mexican war. In December of 1845, a Congressional resolution formalizing the admission of Texas as a state was passed by two-thirds in each house. This lopsided vote probably occurred because the U. S., based on the narrowly-adopted annexation resolution passed at the beginning of the year, was at war to vindicate American sovereignty over Texas. Refusing to admit Texas at this stage would have been seen as unpatriotic. Texas was part of the territory won from Mexico in the war, and it did indeed become a slave state, all thanks to the power of the U. S. Congress to admit states by a bare majority.

Without specifically requiring the states to maintain slavery, the framers of the Confederate Constitution violated “states’ rights” so that any Confederate state which in the future might try to abolish slavery would nonetheless be required to give limited recognition to the institution within its own borders.

The first infringement on state authority was in the fugitive slave clause. The Confederate Constitution copied the fugitive-slave clause from the U. S. Constitution, with a few modifications. The fugitive-slave clause in the U. S. Constitution required that slaves fleeing from one state into another state “shall be delivered up” on claim of the master, although who would do the delivering up was not specified. The federal fugitive slave statutes of 1793 and 1850 provided that federal courts and federal commissioners, with the help of U. S. marshals and federal troops, would do the necessary “delivering up” of fugitives back to their masters. The Confederate Constitution was as vague as the U. S. Constitution on the question of who would send fugitives back to their masters.

Interestingly, the Provisional Constitution had provided a different method of capturing fugitive slaves. Instead of following the example of the U. S. fugitive-slave laws and making the hunting of fugitives a federal affair, the Provisional Constitution provided that “the executive authority” (presumably the governor) of the state to which the slave had fled would be responsible for sending the slave back to his master. Southerners had grumbled that, under the U. S. Constitution (as interpreted by the U. S. Supreme Court), the feds had the sole responsibility of capturing fugitive slaves, and that the Northern state governments had refused to lend a hand in the work-had, in fact, often attempted to obstruct federal officials who were trying to catch fugitive slaves. Southerners had insisted that Northern states shoulder the burden of returning fugitives.

The Provisional Constitution made that obligation explicit. This clause of the Provisional Constitution making slave-catching the responsibility of the states, seemed ironically to reflect the legal theories of some anti-slavery Republicans, who said that only the states, not the feds, could recover fugitives. The Republicans’ states’-rights theories were intended as an attack on the federal fugitive-slave laws and even on the very idea of returning fugitives. The Republican plan had been that, if the enforcement of the fugitive slave clause was left to the Northern states, the governments of these states would be more sympathetic to the pleas of alleged fugitives. Presumably, the framers of the Provisional Constitution did not have this goal in mind when they adopted a Republican-style plan giving states the responsibility of returning fugitives.

This is confirmed by looking at the remainder of the fugitive slave clause in the Provisional Constitution: “in case of any abduction or forcible rescue [of a fugitive slave], full compensation, including the value of the slave and all costs and expenses, shall be made to the party [i. e., the master], by the State in which such abduction or rescue shall take place.” This was similar to some of the aborted compromise proposals floated after Lincoln’s election. In the antebellum era, Southerners had been angered by free blacks and white abolitionists who had freed fugitives from the grasp of their pursuers. In one case, the slave-catchers, instead of getting their slaves back, received a free donation of lead, courtesy of the fugitives’ supporters, and for one of the pursuers, the lead levels he received were fatal. So a requirement that the state from which a fugitive is recued make recompense to the master (or, if it came to that, to his estate) made sense from the slaveowners’ point of view.

The Permanent Constitution abandoned the approach taken by the Provisional Constitution. The permanent document simply copied the analogous provision from the U. S. Constitution (specifically using the word “slave”). The only change from the U. S. Constitution was fairly minor: The U. S. Constitution had applied to slaves who fled from one state to another state, while the CSA Constitution applied to slaves who fled from any state or territory to another state or territory. The fugitive-slave acts passed by the U. S. Congress, and which the Confederacy inherited, already applied to the federal territories, but the Confederate framers wanted this matter to be clarified in the Constitution, foreclosing any possibility that any state would use its “states’ rights” to protect a fugitive from Confederate territory.

The other provision in the Confederate Constitution which abrogates states’ rights in the interest of slavery deals with the status of slavery in so-called “free” states. The U. S. Constitution provides that “[t]he citizens of each States shall be entitled to all Privileges and Immunities of Citizens in the several states.” The “states’-rights” interpretation of this clause was not favorable to slavery. Under the “states’-rights” interpretation, a citizen of Virginia, travelling or doing business in Massachusetts, would be entitled to the same privileges and immunities which he would enjoy if he were a citizen of Massachusetts. Since the privileges and immunities of a Massachusetts citizen did not include the right to own slaves, then our Virginian would likewise not be able to demand the right to own slaves under the “privileges and immunities” clause. The U. S. Constitution required the return of fugitive slaves who entered a free state without the master’s permission, but slaveowners wanted more. They wanted the right to bring their slaves into free states and keep their slaves in slavery during their “sojourn” in the free state. Since this went beyond the obligation to return fugitives, many Northern states had invoked states’ rights and had freed slaves who came, not as fugitives, but with the approval of their masters. Antislavery advocates insisted that once a master allowed his slave to enter a free state, then the slave became a free man, and stayed a free man unless he was foolish enough to return with his former master to a slave state (which is what Dred Scott had done, thereby forfeiting the freedom he had acquired when his master brought him into Illinois).

Slaveowners wanted none of this. States’ rights were well and good when the states were protecting slavery, but states’ rights were intolerable when free states invoked their states’ rights to defend freedom. A special clause was added to the Confederate Constitution, to prevent any hypothetical free state in the Confederacy from freeing slaves brought into the state: “The Citizens of each State...shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in such slaves shall not be impaired.” Although the framers of the Confederate Constitution had grudgingly agreed to allow Confederate states to abolish slavery, they severely limited the value of this concession by allowing slaveowners to hold their slaves in bondage while in transit through free states or while “sojourning” in free states for an unspecified amount of time.

The fact that the framers of the Confederate Constitution violated their own states’-rights principles in the interest of slavery has apparently failed to make a dent in the often-heard argument that “states’ rights” was organically linked to slavery. I tried to lay this canard to rest in an article (I’ll plug the article: It’s at http://www.civilwarinteractive.com/guesteditorial1.htm), but the opponents of states’ rights simply find the slavery sound-bite so useful that they won’t let the facts get in their way. Defenders of states’ rights, remarkably, have usually failed to reject the absurd linkage of states’ rights and slavery. If there were any justice in the world, the albatross of slavery would be hung on the nationalists, not on the states’ rights supporters. Also, neo-Confederates who discuss the importance of states’ rights should forthrightly declare that the leaders of the CSA failed to live up their states-rights ideals when it came to the peculiar institution.

There were other limits on state power imposed by the CSA Constitution, but these limits, while inconsistent with states;-rights purism, were legitimate responses to abuses by the states under the U. S. Constitution.

One justifiable limitation on states’ rights-the alien clause-was imposed by the Confederate Constitution in response to abuses by the states under the U. S. Constitution: “[N]o person of foreign birth, and not a citizen of the Confederate States, shall be allowed to vote for any officer, civil or political, State or federal.” In the antebellum years, some states had enfranchised foreigners-at least those foreigners who had declared their intention to become citizens but who had not become naturalized. Of course, the enfranchisement of foreigners in U. S. elections was a device by which political parties tried to gain advantages over each other, and perhaps to lure immigrants. However, immigrants come to America today even though (outside a couple of hippie-type communities) immigrants must be naturalized before they can vote. If a significant number of states and localities start enfranchising foreigners, then there will be support for an amendment to the U. S. Constitution comparable to the alien clause in the Confederate Constitution.

Interestingly, the CSA Constitution’s alien clause helped defeat xenophobia rather than promote it. During the war, the Confederate Congress passed a bill to repeal the naturalization laws, which would have prevented any foreigner from becoming a Confederate citizen. President Davis vetoed the bill on February 4, 1862. Davis denounced the bill as being against “the civilization of the age” and a slap in the fact to foreigners who had bravely supported the Confederacy. Davis made an additional argument against the bill, as follows: “[T]he states in the permanent Constitution have surrendered the power formerly exercised by some of them of permitting aliens to vote even in State elections...it does not appear to me to be a fair compliance with the just expectations of the States to repeal” the naturalization laws, an action which, under the CSA Constitution, would permanently bar the states from enfranchising the foreign-born.

Another provision in the Confederate Constitution would seem to promote states’ rights, but on closer examination turns out to threaten states’ rights by making it easier for some states to impose their views on other states. The U. S. Constitution provides that Congress-or a convention meeting at the call of the states-can propose amendments, and that such amendments will be added to the Constitution if approved by three-fourths of the states. The states ratify proposed amendments by a vote of the legislature or by vote of a special state convention, as Congress may specify. The Confederate Constitution provided a different method of approving amendments. Any three state conventions could demand amendments to the Confederate Constitution. Presumably, each convention must agree with the other conventions as to the exact language of the proposed amendments. Then Congress would have a duty to summon a “convention of all the states.” This convention, voting by states, would decide whether the states should be given a vote on the proposed amendment(s), and if so, whether ratification should be done by state legislatures or by special state conventions. The amendment(s) will be considered ratified if approved by two-thirds of the states.

Two-thirds is, of course, less than the three-fourths required to amend the U. S. Constitution. In the modern United States, the three-fourths requirement means that amendments need to be ratified by 38 of the 50 states. If the U. S. Constitution could be amended by two-thirds of the states, then ratification would require only 34 states. To understand the significance of this, remember that, according to the feminists, 35 states have ratified the Equal Rights Amendment (some of these 35 states tried to revoke their ratifications, but feminists contend that a ratification, once made, is irrevocable). 35 states is three states short of what the ERA needs under the U. S. Constitution, but if the U. S. were operating under the two-thirds rule of the Confederate Constitution, then, according to feminist legal theory, the ERA would be part of the Constitution today.

This shows that the difference between three-fourths and two-thirds can be decisive. A two-thirds rule makes it easier for a large group of states, through the amending process, to impose their will on a dissident group of states. This means that the Confederate Constitution’s amending procedure infringes more on states’ rights than the U. S. Constitution’s amending procedure.

Finally, the Confederate Constitution reinforced the duty of the federal government to protect states against “domestic violence,” meaning rebellion against the state government. The Confederate framers were probably worried about slave uprisings and Unionist insurrections. The U. S. Constitution requires the feds to suppress “domestic violence” in the states if the state legislature so demanded, and the Confederate Constitution had the same requirement. The U. S. Constitution also requires the feds to send troops against insurrectionists in a state if the governor demands it, provided the emergency is such that the legislature could not be convened. The Confederate Constitution decided to empower state governors to demand federal aid against rebels at any time that the legislature was not in session, forget about whether the legislature could be summoned into special session or not. The feds would have to send in troops on the governor’s demand without waiting for a “pretty please” from the legislature.

Congressional Powers

The states’-rights proclivities of the framers of the Confederate Constitution were not much in evidence as the framers imposed numerous restrictions on the states, restrictions which had not been imposed by the U. S. Constitution. However, when it came to defining and limiting the powers of Congress, the Confederate framers finally began to show some respect for states’ rights by limiting the powers of Congress.

The basis of representation in Congress and the Electoral College was slightly changed. The infamous three-fifths clause was retained, despite efforts by some delegates to count slaves as whole persons, not three-fifths persons. The delegates who wanted slaves to be counted as full persons did not do so out of any belief in the rights and dignity of the slaves. These delegates calculated that the Deep South states, which constituted the Confederacy at the time, had a proportionately higher slave population than the other slave states, who would hopefully join the Confederacy later. If slaves were counted as whole persons, the Deep South states would be entitled to greater influence in the House of Representatives and the Electoral College vis-a-vis the other slave states, if they ever joined the Confederacy. Such a power play, however, was rejected, perhaps in part because of an unwillingness to alienate the non-seceding slave states, whose entrance into the Confederacy was hopefully awaited.

However, the Provisional Congress reduced the maximum number of members of the House of Representatives from one per 30,000 to one per 50,000. This was basically a gerrymander to give more influence to the Deep South.

Once the Confederate framers got away from its apportionment shenanigans, however, they were able to adopt some sensible restrictions on the power of Congress-restrictions which it would be nice to impose on the U. S. Congress today. The U. S. Constitution empowers Congress to spend tax money to promote the “general Welfare of the United States.” Although this clause was never intended to give Congress an unlimited spending power, Congress had interpreted its spending power in this way, and the Supreme Court has left to Congress the task of deciding what constitutes the “general welfare.” According to Congress, the “general welfare” means the appropriation of money for pork-barrel projects, including welfare payments for poor people, for affluent people and for wealthy corporations which make campaign contributions to the right Congressmen (although both parties find it convenient to pretend that welfare money is only spent on the poor). The “general welfare,” we are told, also includes grants-in-aid to the states, by which money raised by the federal government through taxation or borrowing is given to the states to spend as they like, subject to fewer and fewer restrictions (state officials get credit from their constituents for getting “free money” from the feds, and state officials are rarely blamed by the voters for the federal taxes which pay for state officials’ pet projects). With such a large constituency of people who benefit from Congressional spending programs, a constituency which includes the states themselves (Southern as well as Northern), it’s hardly surprising that few people question the current interpretation of “general welfare.”

The Confederate Constitution got rid of the phrase about “general welfare” and replaced it with the phrase “carry on the government of the Confederate States.” This allowed tax money to be spent to support the Confederate government, but not to create new spending programs.

The Confederate framers were extra cautious about Congress’ taxing and spending power. Under the U. S. Constitution, the North had supported federal legislation for public works projects (or pork barrel projects, as people other than the beneficiaries would call them), and had approved Congressional grants to powerful business interests, tariffs to “protect” powerful Northern manufacturers against consumers North and South, and similar abuses. Southern Congressmen had not exactly stood aloof in the scramble for goodies. However, given the growing Northern majorities in Congress, which raised the danger that federal giveaway programs would be regionally biased, and given the tendency of protective tariffs to protect Northern manufacturers at the expense of Southern agriculture, Southern leaders had grown to appreciate (at least for the moment) the importance of keeping a tight rein on Congress. Thus the Confederate restrictions on Congressional abuses.

The taxing-and-spending clause of the Confederate Constitution included the following proviso: “[N]o bounties shall be granted from the treasury, nor shall any duties, or taxes, or importation from foreign nations be laid to promote or foster any branch of industry.” Thus, no free goodies for corporate interests, and no protective tariffs. Of course, this clause could not prevent Congress from passing a protective tariff and disguising it as a purely “revenue-raising” measure, given that tariffs were imposed for both purposes. Basically, it would be up to Congress itself to judge the purity of its own motives in passing tariff legislation.

Unlike the U. S. Congress, the Confederate Congress was given the power to impose export taxes, but a two-thirds vote was necessary in both houses in order to approve such taxes. The Confederate Congress, unlike the U. S. Congress, could require “Vessels bound to, or from, one State... to enter. clear, or pay Duties in another.”

Under the U. S. Constitution, Congress had invoked its power over interstate and foreign commerce in order to justify “internal improvement” projects. The Confederate Constitution prohibited Congress from establishing any “internal improvement intended to facilitate commerce; except for the purpose of furnishing lights, beacons, and buoys, and other aids to navigation upon the coasts, and the improvement of harbors, and the removing of obstructions in river navigation; in all such cases such duties shall be laid on the navigation facilitated thereby, as may be necessary to pay the costs and expenses thereof.”

The Confederate Congress, like the U. S. Congress, had the power to set up a Post Office, but the Confederate Congress, unlike the federal Congress, was subject to the following proviso: “[T]he expenses of the Postoffice Department, after the first day of March, in the year of our Lord eighteen hundred and sixty-three, shall be paid out of its own revenues.” The Confederate Post Office was apparently able to operate on a pay-as-you-go basis, as provided in this clause, until the Confederacy itself was destroyed.

Which brings us back to Jefferson Davis’ January 25, 1865 veto message, with which I began this essay. The bill which Davis vetoed allowed newspapers to be delivered to Confederate soldiers without payment of postage. Davis believed this bill to be unconstitutional under the Post Office proviso and he felt that it was important to set a good “precedent” on the interpretation of that proviso. Pursuing this objective, Davis discussed the origin of the Post Office clause: This clause “was intended by its framers [i. e., the Provisional Congress] to correct what were deemed to be two great vices which had been developed in the postal system of the United States. The first was the injustice of taxing the whole people for the expense of the mail facilities afforded to individuals; and the remedy devised was to limit the [Confederate] Government to the furnishing of the machinery for carrying the mails and compelling those who might use the facilities thus furnished to pay the expense thereof.

“The second evil,” Davis continued, “against which this clause was intended as a safeguard was the wasteful extravagance which grew out of the franking privilege, with its attendant abuses of large contracts for stationary, printing, binding, &c., and increased Government patronage with its train of corrupting influences.”

Based on what he saw as the purpose of the Postal Clause, Davis concluded that “the transmission of any mail matter free of postage is to violate the true intent and meaning of the Constitution.” Had Davis been a tad less principled, for example if he had been Bill Clinton, he would have signed this bill as a mom-and-apple-pie measure to support our brave boys, etc. To assuage his conscience concerning the Postal Clause, Davis-as-Clinton could have advocated a rate increase for civilian mail in order to pay for the delivery of mail to soldiers. That would pay for the soldiers’ mail out of the Post Office’s “own revenues.” Such was Davis’ sense of duty, however, that he thought that the spirit of the Confederate Constitution didn’t allow anyone-even soldiers-to have a free ride at the expense of other postal customers. Citing other provisions of the Confederate Constitution, including the ban on bounties which I quoted above, Davis concluded that to charge excess postage to “one class,” meaning civilians, in order to pay for sending mail to “another class,” meaning soldiers, would be discriminatory, and that the Confederate Congress couldn’t “divid[e] either the people or the public servants into classes unequally burdened with postal charges.” No discrimination allowed under the Confederate Constitution! Thus, although the Confederate Congress might not be able to free the slaves, at least it couldn’t overcharge the slaves for postage in order to carry their masters’ mail below cost.

It wasn’t just in the postal area that the Confederate Constitution protected the treasury from Congressional raiding. According to the Confederate Constitution: “All bills appropriating money shall specify in Federal [i. e., Confederate] currency the exact amount of each appropriation and the purposes for which it is made; and Congress shall grant no extra compensation to any public contractor, officer, agent or servant, after such contract shall have been made or such service rendered.” That’s right-a contractor couldn’t suddenly “discover” some last-minute, “unforseen” expense and stick it to the taxpayers. A clause like this in the U. S. Constitution would magically increase the number of contractors who correctly estimate, in advance, the expenses involved in a particular job.

There were two areas-both connected with slavery-in which the Confederate Congress was required to pass legislation. The African slave trade was one such area.

The U. S. Constitution allowed Congress to prohibit the African slave trade, with full Congressional authority over the trade beginning in 1808. Congressional legislation had prohibited the African slave trade and provided that Americans who took part in the trade would be hanged as pirates, although only one American slave-trader met this fate. Comparatively few Africans were illegally imported into the United States, although many Americans, and foreigners flying American flags of convenience, trafficked in slaves for the benefit of the burgeoning Cuban and Brazilian markets.

The official Southern position was that, while it was OK to buy and sell slaves and ship them from one state to another, it was seriously un-kosher to import slaves from Africa. For one thing, the demand for slaves could be satisfied by going to slave markets in states like Virginia, whose citizens made a good profit off of the traffic in human beings and didn’t want any competition from African slave-dealers. Southerners also feared that imported Africans, with their memories of freedom still fresh, might be less docile than American-born slaves. Further, the African trade was particularly nasty, even from the point of view of those who accepted slavery in general. Thus, mainstream Southerners managed to simultaneously support slavery and oppose the African slave trade.

In the antebellum years, however, an extremist element in the South had supported a reopening of the African trade. A purported commercial convention issued a call for legalizing the slave trade, as did fireating politicians. In the debates on the Confederate Constitution, slave-trade supporters advocated a constitutional provision similar to what was in the U. S. Constitution, giving Congress the power, but not the duty, of banning the African trade. This would open the door toward Congressional legalization of the trade. The dominant group in the Provisional Congress wanted nothing to do with African slaves. In addition to the reasons given above, level-headed Confederate leaders realized that the Confederacy would be seeking diplomatic recognition from European powers, and that allowing the import of African slaves would start up relations with Europe on the wrong foot. This was particularly so in the case of England, whose navy was patrolling the seas in search of slavers going to Brazil and Cuba, and who would not appreciate having to step up their patrols in response to the creation of a new Confederate market for African slaves.

The moderates prevailed, and the following clause was included in the Confederate Constitution: “The importation of negroes of the African race from any foreign country other than the slaveholding States or territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same. Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or territory not belonging to, this Confederacy.” Here was a one-two punch. The world would be reassured that the Confederacy had assumed the Constitutional duty of fighting the African slave trade. Meanwhile, if the non-secessionist slave states insisted on staying in the United States, the Confederacy could block the import of their slaves, cutting off the United States from the slave markets of the deep South.

Since the slave-trade clause protected only “negroes of the African race” against slave-traffickers, the Confederate Constitution may well be the first Constitution in the world to include any form of affirmative action benefiting non-whites. Neo-Confederates should give this matter some thought.

A slave-trade clause similar to the above was included in the Provisional Constitution. The Provisional Congress passed a bill which purported to stamp out the African slave trade. President Davis vetoed this bill on February 28, 1861-his first veto as President, but not, as we have seen, the last time that he considered it necessary to protect the Confederate Constitution from the Congress. The bill made it a crime to import Africans or persons of color as slaves. The illegally-imported slaves were to be given to foreign countries or societies to be freed and deported. If the Confederate government didn’t find a way to deport the illegally-imported slaves, then the slaves were to be sold at auction. “This provision,” commented Davis, “appears to me to be in opposition to the policy declared in the [Provisional] Constitution...and in derogation of its mandate to legislate for the effectuation of that object.” How can Congress comply with its duty to prevent the importation of African “negroes” if Congress allows the Confederate government itself to sell these people into slavery? Although Davis didn’t say it, he may have feared possible corruption under the proposed bill. Slave-traffickers might collude with sympathetic officials to import Africans, arrange for a government seizure, and then buy back the Africans at a rigged auction. Sort of a slave-laundering operation, if you will. On account of the blockade of Confederate ports, the Confederacy’s constitutional policy against the slave trade wasn’t given much of a test.

The other slavery-related duty imposed by the Confederate Constitution on Congress was the duty to protect slavery in the federal territories, meaning “all territory belonging to the Confederate States lying without [i. e., outside] the limits of the several States.” In these territories, “the institution of negro slavery as it now exists in the Confederate States shall be recognized and protected by Congress and by the territorial government, and the inhabitants of the several Confederate States and territories shall have the right to take to such territory any slaves lawfully held by them in any of the States or Territories of the Confederate States.”

Why go to such lengths to protect slavery in the Confederate territories, and to require Congress to provide such protection, given that the Confederacy didn’t have much territory to speak of? The Confederate framers were codifying in their Constitution an extreme pro-slavery interpretation which the South had given to the U. S. Constitution. That interpretation was partly codified in the Dred Scott decision, in which the U. S. Supreme Court ruled that Congress could not stop slaveowners from bringing their slaves into federal territories. The Republicans in the North rejected the Dred Scott decision. Worse, the Northern wing of the traditionally pro-slavery Democratic party, under the leadership of Senator Stephen Douglas (D-Ill), adopted an interpretation of the Dred Scott which did not accomodate Southern interests. Douglas and his followers said that the Dred Scott decision was a correct decision, but that the white settlers of a federal territory could simply choose not to adopt a slave code, in which case a slaveowner’s right to his slaves could be de facto nullified. If there were no slave patrols, no identity papers for blacks, no territorial officials seizing runaway slaves, then the slaves would basically be free to leave their masters whenever they (the slaves) felt like it. With this interpretation of Dred Scott, Douglas reassured his Northern followers that slavery would never be established in any federal territory against the will of the territory’s white settlers. Douglas’ interpretation of Dred Scott was known as the Freeport Doctrine, after the Illinois town where Douglas had articulated the doctrine during his debates with Lincoln, although Douglas had enunciated the doctrine on earlier occasions.

Southern leaders, who disliked Douglas and wanted at least symbolic recognition of their alleged rights, proposed a Congressional slave code for the federal territories. The issue of federal protection for slavery was the ostensible cause of the breakup of the Democratic Party into Northern and Southern wings in 1860. The Confederate framers, presumably as a matter of principle, wanted their doctrines encoded in their Constitution, whether the Confederacy ended up with any territories or not.

Each chamber of the U. S. Congress could expel a member by a two-thirds vote. In the Confederate Congress, expulsion required two-thirds of “the whole number” of the particular chamber.

The Confederate Constitution restricts Congress in the following language: “Every law or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.” Some modern state constitutions put the state legislatures under similar restraint. The U. S. Congress, however, can get away with omnibus bills with titles like “A bill to declare October to be National Wave-the-Flag Month, and for other purposes,” and “other purposes” may turn out to mean building a new VA hospital in the sponsoring Congressman’s district. Or an omnibus bill can be so crammed full of provisions that a Congressman who opposes some provisions but supports others won’t know what to do. With the one-subject limitation, presumably Congressmen would know what they are voting on and wouldn’t have to vote on a bunch of unconnected provisions at the same time.

The President

Concerning the powers of the President, the Confederate Constitution made significant changes to, and, frankly, improvements over, the U. S. Constitution. Some provisions restricted the powers of the President, while other provisions greatly increased the powers of the President and of the executive branch over which he presided.

The Presidential term was extended from four to six years (which was more than Jefferson Davis ended up needing), but the President was not re-eligible, which anticipated the Twenty-Second Amendment to the U. S. Constitution confining Presidents to two four-year terms.

The Confederate Constitution provided that if the President was unable to carry out the duties of his office, the Vice-President would take over. This was a copy of the corresponding provision in the U. S. Constitution. The Provisional Constitution had declared that the question of a President’s inability would be “determined by a vote of two-thirds of the [Provisional] Congress,” but this interesting reform was not carried over into the Permanent Constitution. Not until the Twenty-Fifth Amendment to the U. S. Constitution, adopted in the 1960s, would a specific method of determining Presidential disability be adopted.

U. S. Presidents, in the antebellum years and today, have claimed an inherent “constitutional” power to fire employees of the executive branch. Presidents claim a power to fire executive branch employees without cause, and naturally Presidents have used this power to remove members of rival parties and factions, thus making room for appointees of the same party and faction as the President. This was in accordance with the famous remark of Senator William Marcy (D-NY) that “to the victor belong the spoils of the enemy.”

The Confederate framers, thinking that removal from office ought to have some relation to the incumbent’s fitness, included a clause authorizing the President to fire cabinet officers and diplomats “at [his] pleasure.” However, “[a]ll other civil officers of the executive department may be removed at any time by the President, or other appointing power, when their services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor.” So the President (or whoever appointed the person) had to give a reason when firing an executive branch employee, although a broad power of removal was still recognized.

The U. S. Constitution, while giving the Senate a veto over Presidential appointments except where Congress specifies otherwise, gives Presidents a way to get around the Senate by making “recess appointments”-allegedly temporary appointments which, in practice, are sometimes extended for long periods so as to practically allow the President to avoid Senate scrutiny of his appointees. The Confederate Constitution plugs this loophole by providing that “no person rejected by the Senate shall be reappointed to the same office during their [the Senate’s] ensuing recess.”

The Provisional Constitution contained a significant omission. The Constitution of the United States prohibits any member of Congress from serving in the executive or judicial branches, and also prohibits former Congressman from taking certain federal jobs even after resigning. The Provisional Constitution simply left out these restrictions, indicating that members of the Provisional Congress could serve in the executive branch and in Congress at the same time. Such a set-up would have brought the Confederate Constitution much closer to the English model. In England, the leaders of the majority party in the House of Commons are also the members of the Cabinet, which runs the executive branch. The U. S. Constitution prohibited this kind of blurring of the personnel of the legislative and executive branches, which of course undermines the American ideal of separation of powers. The Provisional Constitution raised the possibility that the Confederacy might adopt an English-style Constitution, with leaders in Congress holding Cabinet rank and thereby putting both Congress and the executive branch under the direction of the same group of men.

The Permanent Constitution rejected this outright Anglophilism and more or less returned to the American model of separation of powers. The clause in the U. S. Constitution against Congressmen serving in the executive branch was reinstated. However, there was a nod toward English Parliamentarianism: “Congress may, by law, grant to the principal officers in each of the executive departments [meaning Cabinet members] a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department.” Congress did in fact pass such a law in 1864. If the Confederacy had survived, the Confederate Congress might have developed a practice similar to the practice of “question time” in the House of Commons, in which legislators ask questions of Cabinet members (hostile or friendly questions, depending on the partisan affiliation of the questioner) and receive explanations on various points. This kind of “question time” would certainly have been an improvement over the practice in the United States Congress of demanding that Cabinet officials provide testimony (usually through subordinates) to one or more committees. Letting Cabinet members take part in the rough-and-tumble of Congressional debate would provide for more accountability on both sides, especially given the fact that budget bills usually had to originate with Cabinet members.

This requirement was stated clearly in the Confederate Constitution. As a general rule, a Congressional appropriation had to be based on a budget request made by a cabinet officer and approved by the President. There were only three exceptions to this rule: (a) appropriations approved by a two-thirds record vote in each house, (b) appropriations for Congress’ “own expenses and contingencies,” and (c) payment of claims against the CSA. As to (c), Congress was required to establish a “tribunal” to look into “claims against the government,” and if the “tribunal” approves the “justice” of the claim, Congress was allowed to pay the claim by majority vote.

As a further security against Congressional raids on the treasury, the Confederate framers gave the President a line-item veto on appropriations. Recent U. S. Presidents have been seeking a line-item veto. They had one for a few years, based on a Congressional statute, but the U. S. Supreme Court struck it down. The Confederate Constitution, unlike that of the U. S., lets the President “approve an appropriation and disapprove any other appropriation in the same bill.” Congress could override a line-item veto in the same way it overrode other vetoes.

The Judiciary and Individual Rights

In the Confederate Constitution, the Supreme Court was renamed the Superior Court, but this didn’t make any difference since the Confederate Congress never established a Supreme Court of any kind. The Provisional Constitution had provided for a system of federal district judges, adding: “The Supreme Court shall be constituted of all the district judges, a majority of whom shall be a quorum, and shall sit at such times and places as the Congress shall appoint.” This provision was not carried over into the permanent Constitution, and it would not necessarily have represented a great change from the system under the U. S. Constitution. U. S. Supreme Court Justices in those days “rode circuit,” meaning that they acted as trial court judges as well as sitting in Washington, D. C. to hear appeals. The Provisional Constitution contemplated something similar -trial court judges being delegated, for a certain part of the year, to hear appeals as a Supreme Court. Since no Confederate Supreme Court was ever established, these constitutional provisions are fairly academic, even compared to the rest of the Confederate Constitution.

The Bill of Rights was pretty much copied off of the U. S. Constitution. The Provisional Constitution made a slight adjustment to the First Amendment, which prohibited Congressional violation of “the right of the people...to petition the Government for a redress of grievances.” The Provisional Constitution changed this to “the right of the people...to petition the Government for a redress of such grievances as the delegated powers of this Government may warrant it to consider and redress.” This was almost certainly a response to the great petition controversy of the 1830s and 1840s. Abolitionists had send truckloads of anti-slavery petitions to the Senate and the House of Representatives. Southern Congressmen had argued that Congress had no power over slavery and therefore no power to consider antislavery petitions. The House adopted the famous Gag Rule requiring antislavery petitions to be automatically laid on the table, a procedure used to kill unwelcome propositions. The gag rule itself, rather than just slavery, had then become the subject of controversy, and eventually the Northern majority in the House abolished the rule, amid rhetoric celebrating the right to petition the government. Although the Provisional Constitution included the above restriction on the right of petition, which would have ruled out anti-slavery petitions, the Permanent Constitution returned to the language of the First Amendment. Either the Provisional Congress had decided to respect the right of petition or it didn’t want to bring up the gag-rule controversy again by amending the First Amendment itself.

Reflecting their upside-down morality on the subject of slavery, the Confederate framers inserted the following in a list of rights protected against Congressional infringement: “No...law denying or impairing the right of property in negro slaves, shall be passed.” Focusing on the “rights” of the slaveowner, rather than the rights of the ownee, was a real perversion of justice.

The Confederate Constitution, like the U. S. equivalent, didn’t allow the states to abrogate or dilute the terms of pre-existing contracts. In other words, the states couldn’t retroactively cancel or rewrite contracts which were valid when made. No such limitation was put on the U. S. Congress, but the Confederate Congress had its powers limited by the requirement that “no law of Congress shall discharge any debt contracted before the passage of the same.” This clause was inserted after the clause empowering Congress to regulate bankruptcies, indicating that creditors were entitled to the benefit of the bankruptcy laws existing at the time the contract of indebtedness was made, and that creditors could not be subject to retroactive rewriting of the rules of the game.

Summing up

The Confederate Constitution was fundamentally flawed because of its defense of slavery and of the idea that one human being has the right to own another. The Confederate framers had such a fixation on slavery that they were willing to abrogate the fundamental powers and privileges of the states, belying all their noble rhetoric about states’ rights. On subjects other than slavery, the Confederate Constitution actually did achieve a good balance between state and federal powers, and between the powers of Congress and the powers of the President. If the Confederacy “died of states’ rights,” as one commentator suggested, this was caused not by compliance with, but by violation of, the provisions of the Confederate Constitution.

For Further Reading

DeRenne, Wymberley Jones. Short History of the Confederate Constitutions of the Confederate States of America, 1861-1899.

Davis, William C. “A Government of Our Own:” The Making of the Confederacy. New York: The Free Press, 1994.

DeRosa, Marshall L. The Confederate Constitution of 1861: An Inquiry Into American Constitutionalism. University of Missouri Press, 1991

Lee, Charles Robert. Confederate Constitutions. Greenwood Publishing Group, 1974

Neely, Mark E. Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism. University Press of Virginia, 1999.

Nevins, Allan (ed). The Messages and Papers of Jefferson Davis and the Confederacy (2 vols). New York: Chelsea House-Robert Hector, 1966.



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