Background of the Confederate States Constitution
The states that left the American Union in 1860 and 1861 brought with them a rich tradition of constitutionalism. Many Southern Leaders explained their support for secession in terms of the failure of the Federal compact. Most blamed Northerners for failing to live up to their obligations, although some thought it was structural flaws in the U.S. Constitution that made secession necessary.
The Provisional Constitution of the Confederate States of America signed on February 8, 1861, created a compact among six Deep South states. The Permanent Confederate Constitution, signed on March 11, 1861, created a political structure for what became the eleven-state Confederate nation. Both documents were similar to the U.S. Constitution. The differences between the two reflected the political struggles that had led to secession.
The Montgomery Convention And The Provisional Constitution.
On February 4, 1861, forty-three delegates from South Carolina, Alabama, Mississippi, Georgia, Florida, and Louisiana assembled in Montgomery, Alabama, to write a provisional constitution for the Confederate States of America. The convention finished its work four days later. Such speed was possible because of the "mania for unanimity" among the delegates and because the Provisional Constitution was something of a cross between the Articles of Confederation and the U.S. Constitution and borrowed heavily, in language and concepts, from both documents. Like the Articles of Confederation, the Provisional Constitution created a unicameral Congress in which each state had a single vote. Borrowing from the British system, the Provisional Constitution allowed cabinet members to serve in Congress and stipulated that Congress choose the president. Like the Constitution of 1787, it provided for a president with a veto power and enumerated powers for the Confederate Congress similar to those given to the U.S. Congress. There were also a number of substantive differences between the Provisional Confederate Constitution and the Constitution of 1787.
Under the Provisional Constitution Jefferson Davis became president of the fledgling nation and formed a government. By its own terms the Constitution was to last no more than a year, but it was in operation for only thirty-one days before the delegates wrote and signed a permanent constitution. The preamble of the Provisional Constitution reflected the state rights philosophy and Protestant culture of its framers: "We, the Deputies of the Sovereign and Independent States of South Carolina, Georgia, Florida, Alabama, Mississippi, and Louisiana, invoking the favor of Almighty God..."
The Permanent Constitution
Under the terms of the Provisional Constitution, the Montgomery convention reconstituted itself as the Provisional Congress of the Confederate States of America until such time as a permanent constitution could be adopted and a permanent congress elected.
There was no serious debate over the name of the new nation--the "Confederate States of America" reflected what the founders thought they were creating.
The delegates who gathered in Montgomery mirrored, in their occupations, their interest in politics, and in their stake in slavery, the elite of the society they represented. In early March when the Texas delegation arrived, their numbers rose to fifty. Of these, forty-two were lawyers and thirty-three described themselves as planters (including twenty-seven of the lawyers). Forty-eight were native Southerners, forty-nine were slave owners. Twenty-one owned at least 20 slaves and one owned 473. Thirty-eight were college graduates. Almost all had extensive political experience: twenty-three had served in the U.S. Congress; sixteen were former or sitting judges, including two state chief justices; two had been in national cabinets, and a third had been in the cabinet of the Republic of Texas. Oddly, one of the most influential members of the convention had no political experience per se. Thomas R. R. Cobb, the "James Madison" of the Confederate Constitution, had never held an elective office, although he had been the first reporter of the Georgia Supreme Court. He was also one of the South's foremost legal scholars and the author of the influential An Inquiry into the Law of Negro Slavery (1858).
On February 9, the day after the signing of the Provisional Constitution, members of the Provisional Confederate Congress appointed a twelve-man committee, chaired by South Carolinas secessionist leader Robert Barowell Rhett, Sr., to draft a permanent constitution. Other important members of the committee included Thomas R. R. Cobb and Robert Toombs of Georgia; James Chesnut, Jr., of South Carolina; and Wiley Harris, a skilled Mississippi lawyer. On February 28 Rhett presented the Congress with a draft of a permanent Constitution. For the next ten days the Montgomery delegates functioned as a Congress during the morning and as a constitutional convention during the afternoon and evening. On March 11, 1861, the Montgomery convention adopted this document and sent it on to the seceded states for ratification.
Structurally the U.S. and Confederate Constitutions were nearly identical. Both had a preamble and seven articles, and both created a national president, a bicameral legislature, and a court system. The only major structural difference was that the first twelve amendments to the U.S. Constitution were incorporated, almost word for word, into the main body of the Confederate Constitution.
The Confederate Constitution is often seen as a document for a nation based on state rights and limited government. To a great extent this is true, but the document also vested the national government with some centralizing powers. Like the U.S. Constitution, the Confederate document had a necessary and proper clause, a supremacy clause, and a clause requiting all state officials to swear allegiance to the national government. Article I, Section 9 of the Confederate Constitution had a habeas corpus suspension provision that was identical to that of the U.S. Constitution. These certainly gave the national government power to act.
In addition, innovations in the Confederate Constitution gave the new government more power in some respects than the U.S. government had. The president was limited to one term, but that term was for six years. Thus he may have had more opportunity to implement his policies than his counterpart in Washington. The Confederate president had a line-item veto and the right to dismiss at will all cabinet members. Incorporating aspects of a parliamentary system, the document stipulated that Congress could grant cabinet officers "a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department." This gave the administration an advantage in getting its programs through Congress that the U.S. president lacked. Robert Toombs thought these provisions strengthening the executive branch were the most important differences between the two constitutions.
The most significant differences between the two, however, lay in the Confederate provisions limiting the power of the national government, protecting state rights and, most important, protecting slavery.
A limited government. A persistent complaint of antebellum Southerners had concerned the national governments assumption of increased power after 1789. Reflecting the divergent views of state rights advocates and nationalists were the fights over the establishment of a national bank, the 1828 "Tariff of Abominations," the doctrine of nullification, and the constitutionality of the Federal governments funding internal improvements. Thus, the Confederate preamble differed significantly from that of the U.S. Constitution in order to cure what were seen as defects allowing centralization. Unlike its Federal counterpart, the preamble did nor state that the central government was to "provide for the common defense" or "promote the general welfare." It also contained an explicit reference to state sovereignty (discussed below) and a direct appeal for the "favor and guidance of Almighty God."
Article I granted the Confederate Congress the legislative powers "delegated" in the Constitution. This was a major limitation on the power of the Confederate government. The enumerated powers clauses (Art. I, Sec. 8) limited taxes to those providing revenue necessary to pay the debts, provide for the common defense, and carry on the Government of the Confederate States." This clause specifically forbade any "bounties" or taxes "to promote or foster any branch of industry." Section 8 absolutely prohibited the Congress from appropriating money for "internal improvements intended to facilitate commerce" except for those directly connected to navigation, harbors, and rivers. Under this Constitution there would be no support for national roads, railroads, or other such improvements.
It also provided that the executive branch could propose appropriations and needed only a simple majority in Congress to have them adopted, whereas appropriations originating with Congress needed a two-thirds majority to pass. This particular provision strengthened the president vis-à-vis Congress but generally it made the national government less flexible than that of the United States. The Constitution also required that all appropriations be for exact amounts and declared that there could not be "extra compensation to any public contractor, officer, agent or servant." The absolute prohibition on "impa[i]ring the right of property in negro slaves" limited the use of slaves for war activities. These provisions, combined with the lack of a common defense clause in the preamble, were significant departures from the U.S. Constitution and at least potentially hampered the operations of a government that was about to fight a major war with a far richer and more powerful adversary.
Finally, in a move to eliminate patronage (which could have undermined the presidents power to run the government), the Constitution prohibited the president from removing civil servants except for "dishonesty, incapacity, inefficiency, misconduct, or neglect of duty." The president, however, retained the explicit power to fire cabinet members and diplomats without cause.
During the war itself the Davis government was able to overcome some, hut not all, of the constitutional obstacles to a strong government. President Davis amassed considerable power, but at great cost to his political capital. During the war the Davis administration often suppressed civil liberties to a greater extent than its counterpart in Washington. Only five days after Davis took office the Confederate Congress adopted legislation allowing the suspension of habeas corpus. Davis sporadically imposed martial law on Richmond and other major cities. In some areas of the Confederacy, like eastern Tennessee, martial law led to the summary executions of a few civilians and the mass incarceration of others. By the end of the war, Vice President Alexander Stephens and other leading politicians no longer supported the administration, in part because of Davis's "betrayal" of Southern Constitutional principles. 'Our liberties, once lost," he declared, "may be lost forever."
State rights. Directly tied to the limitations on the national government was a respect for state rights. Some scholars have argued that the Confederate Constitution was so extreme on this issue that the Confederacy was doomed to lose the wan Others dispute this point. In any event, even a cursory glance at the document shows that in respecting stare rights-- and simultaneously limiting the power of the central government--the Confederate Constitution created a government that was quite different from that in place in the Union.
The state rights tone was set in the preamble, which added to "We, the people of the Confederate States," the significant phrase "each State acting in its sovereign and independent character." Article I allowed the states to impeach "any judicial or other Federal officer, resident and acting solely within the limits of any state." Such an officer would then be tried by the Confederate Senate. This provision was never implemented during the life of the Confederacy. Nevertheless, the threat of impeachment may have undermined the ability of Confederate officials to enforce unpopular laws and policies in their state. Article I, Section 10, also allowed states to impose their own import and export duties, something prohibited to the states remaining in the Union.
Southern distrust for the national judiciary was apparent in the drafting of Article III of the Confederate document. A key provision of the U.S. Constitution is the clause creating diversity jurisdiction by giving the federal courts the power to hear cases "between Citizens of different States." The Confederate Constitution lacked such a provision, which in practice meant that civil suits between citizens of different states would have to be litigated in state courts. This undermined the nationalization of law and jurisprudence, and had the Confederacy survived, it probably would have led to unnecessary complications in litigation and complaints about the failure of litigants to get a fair trial in a neutral forum. Moreover, in a nation that was predicated on state rights and local interests, the abolition of diversity jurisdiction could have led to a judicial and business climate that would have hampered economic development. The Confederate Constitution also failed to include the phrase "law and equity" in granting jurisdiction to the national courts. This is generally seen as a concession to the civil law system in Louisiana and its vestiges in Texas. A final bow to state rights, and one that could have led to enormous instability, was a provision allowing a constitutional convention to be called on the demand of just three states.
During the war, state judges issued writs of habeas corpus directed against military officers trying to impose Confederate conscription. Without a functioning court system, which the Constitution would have allowed but did not mandate, the Davis administration and the Confederate military could only respond to these manifestations of state rights with suspensions of martial law.
Slavery. Far from a "peculiar institution," slavery was, as Confederate Vice President Alexander Stephens declared, 'the cornerstone" of the Confederacy. As such, it was protected even more in the Confederate Constitution than it had been in the proslavery U.S. Constitution of 1787.
The most obvious difference between the two documents lay in their use of the term slavery. In deference in 1787 to some of the Northern delegates who thought their constituents might oppose the Constitution if the word appeared, the framers of the U.S. Constitution substituted such phrases as other persons, such persons, and persons owing service for the word slaves. No such problems arose in the framing of the Confederate document. The blatantly proslavery Confederate Constitution contains the words slave or slavery ten times in seven separate clauses.
As their predecessors had in the Philadelphia Convention of 1787, the South Carolina delegates in Montgomery wanted to count slaves fully for representation. South Carolina had a larger percentage of slaves than any other state and would have gained by their full representation. The delegates in Montgomery, however, must have understood that a full counting of slaves would have discouraged the other Southern states, with smaller percentages of slaves, from joining the Confederacy. Thus, the convention chose to continue the Federal compromise by maintaining the three-fifths clause for determining congressional apportionment.
The frequent refusal of Northern states to cooperate in the rendition of fugitive slaves had been a major irritant in the antebellum period. The Montgomery delegates did not, however, substantially alter the fugitive slave clause in their Constitution. There were probably two reasons for this. First, they were writing a constitution for a slaveholders republic, and it was unlikely that any Confederate state would ever adopt legislation similar to the Northern personal liberty laws. Second, a substantial change in the wording of the clause would have undermined the Southern argument that the meaning of the clause in the U.S. Constitution was clear and that secession was justified by the North's refusal to fulfill its constitutional obligations.
The Confederate Constitution also mirrored, hut surpassed, the federal Constitution on the issue of the slave trade by absolutely forbidding the operation of the African slave trade. This was done over protestations of South Carolinians, who wanted the matter left to Congress. Prohibiting the trade was not an indication of antislavery sentiment but the result of the distaste for the African trade by some slave owners, fear of Africans themselves, and the feat that Europe would not recognize the Confederacy if it did not unequivocally prohibit the trade. Permitting the trade also might have discouraged Virginia and Maryland from entering the Confederacy because of the excess of slaves in those states. Those states might not have wanted foreign competition with their interstate slave trade.
On all other issues the Constitution created a thoroughly proslavery republic. The Constitution authorized Congress to limit the importation of slaves from other nations and states but did not prohibit it altogether as current federal law did. The Constitution absolutely prohibited any law "impa[i]ring the right of property in negro slaves." Reflecting Southern states rejection of Northern states decisions that had freed the slaves of visitors, Article IV guaranteed that the citizens of each Confederate 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 said slaves shall not be thereby impaired." The Constitutions fugitive slave clause reiterated this right. Finally, the Constitution affirmed the proslavery holding of Chief Justice Roger B. Taney in the U.S. Supreme Court Dred Scott decision, by declaring that slavery could never be prohibited from any Confederate territory. At the same time, however, the Confederate authors jettisoned Taney's implausible argument that the national government could not regulate the territories. Thus, their territory clause accomplished two proslavery goals. It guaranteed both slavery in the territories and the ability of Congress to counter any antislavery movement that might arise in the Confederate hinterlands.
On March 11 the Montgomery convention unanimously adopted the new Constitution. The next day Howell Cobb, president of the convention, sent the Constitution to the states for their approval. The ratification of five states would complete the process. On March 12 the Alabama secession convention debated and ratified the document by a vote of 87 to 5; on March 16 the Georgia convention read and ratified the Constitution by a unanimous vote of 260 to 0; on March 21, after some political maneuvering, Louisiana ratified 94 to 10; on March 23 the Texas Secession Convention approved the Constitution 126 to 2 after almost no debate; and on March 26 Mississippi ratified it by a vote of 78 to 7. The Confederate Constitution was now in force.
Radicals delayed ratification in South Carolina. Robert Barnwell Rhett, Sr., wanted to amend the document to prohibit any free state from entering the Confederacy. But finally, on April 3, South Carolina ratified by a vote of 138 to 21. The negative votes represented not latent Unionist sentiment but the proslavery extremism in the Palmetto State. After ratification the South Carolina convention proposed amendments to eliminate the three-fifths provision and count all slaves for representation; to prohibit free states from joining the Confederacy; to repeal the constitutional prohibition on the slave trade; and to prohibit the government from going into debt, except in the event of war.
Finally, on April 22, Florida ratified the Constitution with a vote of 50 to 0. By this time fighting between the Union and the Confederacy had begun. By the end of June, North Carolina, Arkansas, and Virginia had joined the Confederacy. Tennessee adopted an ordinance of secession in May and placed the Confederate Constitution before the voters, who endorsed it in August by a vote of 85,753 to 30,863. Rump governments in Kentucky and Missouri also eventually endorsed the Confederate Constitution, but those states remained firmly in the Union throughout the war.
Source: "The Confederacy" a Macmillan Information Now Encyclopedia, Article by Paul Finkelman
Confederate States Constitution This version of the CSA Constitution is clearly marked to show the differences between it and the US Constitution.
This Page last updated 11/20/04
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