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3.25.2011

The Confederate States of America Constitution at 150

This month marks the 150th anniversary of the signing of the Confederate Constitution into law. Following weeks of deliberation by forty-three delegates from seven states, the Confederacy formally ratified the document on March 11, 1861. Four more States, and two territories, would later join the Confederate States of America (CSA) and in doing so adopt this constitution for the war’s duration. In all, nine million free Americans, and three million slaves, lived and fought under its jurisdiction for years. And yet, while the causes and issues behind the US Civil War have received a good deal of attention as America prepares to commemorate the sesquicentennial, the actual government envisioned by those early rebels has been largely overlooked.

The CSA Constitution reads as a nearly verbatim copy of the US Constitution, and includes all amendments in existence at the time (#1-12). Yet the few modified provisions where the drafters did choose to alter the fundamental design of government can offer a fascinating window as to Southern leaders’ actual goals in seceding, and by extension the causes of the war. This perspective is of great value at a time when certain political movements have latched on to the CSA Constitution as a sort of intellectual precursor on issues such as State’s Rights, limited judicial authority, Christian values and minimal government interference over economic freedoms. And yet, it would be difficult to concoct a stronger rebuttal to this view than the actual text of the Confederate Constitution.

Confederate Tea Party
“We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity — invoking the favor and guidance of Almighty God — do ordain and establish this Constitution for the Confederate States of America.”

To a modern reader, the above preamble might imply that what the rebel leaders had in mind was a kind of Tea Partyer Utopia. Gone is talk of promoting ‘general welfare’ or working towards a more ‘perfect union.’ Replacing them are references to The Creator and of “sovereign and independent states.”

Reading beyond the preamble however, it soon becomes clear that this language of God and State Independence is more a justification of rebellion, than a philosophical foundation for governance. Modern conservative bogeymen such as the Federal “Supremacy” clause, the congressional power to “Regulate Commerce” and the “as Necessary and Proper” clause remain intact; as does, somewhat ironically, the presidential authority to suspend habeas corpus in response to a rebellion. And while certain federal powers are curtailed or excluded, a surprising number of brand new ones emerge which, had the Confederate government ever been able to finish putting itself together, might have actually made the individual states even less independent than they had been in the antebellum period.

Mentions of Judeo-Christianity beyond the preamble are likewise absent with the exception of references to such and such “Year of our Lords” when discussing dates. And lest we be tempted to read too far into this language, it is important to note that the change keeps with Nineteenth Century writing conventions. The CSA likewise modernized the language of those US Constitutional provisions which were kept on: the old congressional power to “chuse their other Officers” becomes one to “choose their other officers.”

Activist Judges:
It is important to note the difference between the CSA government as envisioned by its constitutional drafters, and the weak federal structures that actually emerged between 1861-1865. Due to the constant state of wartime emergency, many of the institutions outlined in the Confederate Constitution were never set up. Elections were few and flawed, a called for Federal Supreme Court was never actually put together, nor was a coherent taxation system put into place. These situational circumstances led to a far weaker federal authority in practice than that which was drafted into the CSA Constitution. Forced to rely on State donations and an ever-increasing pile of debt, while at the same time bearing the staggering responsibility of organizing defense, the embryonic government was unable to implement much of what was constitutionally required of it. As a result, the jurisdictional vacuum was predictably filled by those State institutions which had emerged from the secession largely intact.

A good example of this phenomenon can be seen in the Confederate judiciary. CSA Article 3 mirrors its US counterpart in all but three respects:

  1. Omission of the language “in law and equity” since around half of the initial signers (Florida, Texas and Louisiana) came from continental colonial traditions that did not recognize the legal distinction.
  2. The constitutional prohibition of suits against the Confederate States by citizens of foreign governments (so as to sidestep property claims from former landholders in the now ‘foreign’ USA.)
  3. The dropping of federal jurisdiction over disputes between citizens of different CSA States.

What this system would have looked like in practice – for example where interstate disputes could have gone when they invariably arose – will never be known. In the absence of a Confederate Supreme Court with the final authority for constitutional interpretation, there was never an opportunity to provide a definitive answer. It was in this context of judicial adhocracy, that state courts enjoyed a veritable free rein. Those ‘Federal’ Courts that did exist were invariably Union appointee holdovers from before the war and suffered from a serious lack of legitimacy and influence as a result. On paper however, the Federal courts remained an integral part of the system – just like the secessionists had envisioned them to be.

Taxation and Government Interference over the Economy:
Where the Confederate Congress did weaken Congressional power to appropriate money is as follows:

  1. Confederate Federal Congress was explicitly forbidden from “granting bounties” or “imposing tariffs” to “promote or foster any branch of industry” (which would have been terrible news for a Confederate General Motors, or AIG.)
  2. To appropriate money from the treasury a two-thirds vote in congress was required (as oppose to a simple majority.)
  3. These appropriations would be strictly limited to the specific amount approved.
  4. Congress lost the authority to tax the imports of industrial goods from foreign countries, which somewhat understandably for the pre-industrial South, had been a constant source of contention prior to the war.

And yet modern readers might be surprised to discover that, the abovementioned congressional limitations aside, the Confederate Constitution was surprisingly hostile to a free economy. States could collude to tax ships (foreign or domestic) for utilizing their waterways (think tollbooths on the Mississippi), and would also be responsible for printing their own money with all the trade complications implied therein (think Europe before the Euro.) Also, under a bold new heading titled “The Congress shall have Power” the Federal Government gained the right to lay a tax on exports both for the international market and for those goods moving between the Confederate States themselves. For an economic region almost entirely dependent on export revenues from cotton, tobacco and sugarcane to Europe, The North, and one another, this would have been a much a greater potential source for government revenue than the former provisions on imports.

Prescience:
Oddly enough, some novel items in the document have subsequently become de facto US procedure as federal authority, particularly executive authority, has been strengthened over the last century. A clear example of this can be seen in the right of cabinet members and executive staff to appear before, or be summoned by, Congress.

Other innovations, such as a presidential line item veto, have likewise been seriously discussed as viable alternatives to existing American law. Line item vetoes, a common check in parliamentary systems, empower a President to strike down specific pieces of legislation without having to veto the entire bill. And while the United States has never granted this power to the executive, most standing president since the 1970s have endorsed the idea in principle for the purpose of combating ‘pork.’ It’s interesting to note that the first of these presidential endorsers, Richard Nixon, would likely have had an even greater appreciation for the CSA President’s heightened authority to fire any civil servant at will - requiring only a cursory explanation to the Senate after the fact.

State Sovereignty Under the Confederacy
The individual states did gain a few new authorities under the CSA. Rather than requiring constitutional amendments to take place through a three/quarters vote in Congress, the CSA Constitution could be modified through a two/thirds majority in two thirds of the state legislatures. The States could also impeach federal officials acting locally through super-majorities in state assemblies. Then again, as previously mentioned, the President could also fire State officials at will so this initiative might best be seen as a dilution of the separation of powers than a strengthening of State Authority per se.

Yet these few new state rights came with a very high price tag. Throughout its history the United States has allowed, and continues to allow, the states themselves to define most of the requisites for suffrage. At various times, in various states, women, Native Americans, people who own no land, the illiterate, criminals, foreign nationals who own property, citizens living out of state etc. have been granted or denied the franchise fully on the authority of the State government. At the time of the Civil War five states had already enfranchised African Americans, and defining who got to vote, was one of the most important issues in 19th Century state politics (think the Irish immigrant laborer votes and Tammany Hall...)

Slavery
It's interesting to note that in 1789, the Founding Fathers never once mentioned “slaves” or “slavery” by name in the US Constitution. The text (rather awkwardly) refers to slaves as “other persons” or uses blanket terms such as “property” in which slavery can be interpreted (or not) by court or statute. For their part, the CSA had no qualms in this regard, and the term “slave” or “slavery” expressly appear ten times.

Under their constitution, the Confederate States, would give up the right to legislate against (or even modify) the institution of slavery. Nor could, states seeking to enter the Confederacy could not do so as 'free states.' “The institution of Negro slavery, as it now exists in the Confederate States, shall be recognized and protected be Congress and by the Territorial government.” This entirely new section of the constitution goes a long way towards clarifying Confederate priorities. Fugitive slave laws were tightened and the ability of slave-owners to move their slaves around the fledgling country as they saw fit was constitutionally protected and would remain “as is” regardless of subsequent developments or state preference.

The rejection of Federal authority to decide “moral” issues for the states is a repeating and unifying theme in modern conservative and libertarian discourse. From mandatory health care and homosexual marriage, to Roe v. Wade, the argument that States are the polity that can best recognize the moral needs of their people may well be among the most resonant expressions of Tea Party discontent. So to draw common cause with a constitution which expressly forbids the States to legislate any “bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves” is at best ignorant (and at worse a cynical ploy to disguise actual bigotry.)

As outlined above, those few new state freedoms which were granted, were either unintended (like stronger state courts) or prosaic and largely circumstantial modifications (such as taxing exports rather than imports), not a philosophical rejection of 'big government.' Thus, if it's constitution is to be believed, the Southern secession of 1861 was never about state rights, or religion, or free economies - it was about slavery, plain and simple.

The full text of the Confederate Constitution in can be found here courtesy of the Yale Law School Avalon Libnrary: http://avalon.law.yale.edu/19th_century/csa_csa.asp

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