Background – The Confederate Constitution
The primary author of the Constitution of the Confederate States of America (CSA) was Robert Barnwell Rhett, an elected representative to the Provisional Confederate States Congress from South Carolina. He chaired a committee of twelve appointed by the Provisional Confederate States Congress in Montgomery Alabama beginning on February 5, 1861. Other important committee members included James Chesnut, Jr., Thomas Reade Rootes Cobb, and Wiley Pope Harris. Their central purpose was to write a constitution for the new government that would remedy what they considered the antebellum flaws of the U.S. Constitution
Robert Barnwell Rhett
Prior to the constitution’s formal ratification, a Provisional Constitution was in effect from February 8, 1861 to March 11, 1861. It was permanently adopted on March 11, 1861. Study of the CSA constitution is fascinating because although its structure, language and basic principles are copies of the US Constitution, the changes are truly revealing in regard to what the CSA founders thought were important to change.
The Confederate States Constitution adopted the tripartite system of government, originally suggested by French philosopher Baron De Montesquieu (see below). In particular, the court system, legislature, and executive powers were to be divided among 3 co-equal branches of government. As will be noted, a connection between the executive branch cabinet and the legislature was introduced.
Specific Political Questions
States Rights. One interesting part of the CSA Constitution is something you cannot read: there was no right given to states to secede or for legislative nullification! When Chesnut proposed that nullification be recognized as a legal remedy for disputes between states and the national government, the idea was rejected. Benjamin Harvey Hill of Georgia tried to constitutionalize secession after a period of waiting.
When Chesnut attempted to include a simple right of secession, both proposals were tabled; no further attempt was made to include them. If states’ rights was the principal constitutional principle and a major criticism of the US Constitution for not stating it, why was this power not granted? The rejection of a constitutional right to nullification or secession may seem contradictory, if not hypocritical, given that southern states had employed secession just months earlier.
Interestingly, the Confederate States Constitution contained several phrases and clauses that had led to the disagreements when they were part of the US, including a Supremacy Clause, a Commerce Clause, and a Necessary and Proper Clause. If states’ rights were their foremost concern, these clauses would have been modified.
The issue of States Rights is fascinating. States only gain four minor rights under the Confederate system-
- The power to enter into treaties with other states to regulate waterways,
- The power to tax foreign and domestic ships that use their waterways,
- The power to impeach federally-appointed state officials, and
- The power to distribute “bills of credit.”
At least five states rights under the US Constitution were explicitly removed:
- The freedom of states to grant voting rights to non-citizens,
- The freedom of states to outlaw slavery within their borders,
- The freedom of states to trade freely with each other,
- Denies states the right to interfere with the right of transit, and
- Denies the right to enact bills of attainder.
Slavery. The Confederate States Constitution is very clear about the peculiar institution of slavery. It is the centerpiece of the document. No state or territory can abolish it. It is permanent (Art 4 Sec 3.3). Since the Confederate States Congress could not initiate amendments, a power reserved for the states, changes to the Confederate Constitution regarding slavery would have required a constitutional convention.
Four different clauses entrench the legality of slavery in a number of different ways, and together they virtually guarantee that any sort of future anti-slavery law or policy would be unconstitutional. The Confederacy was built on a universal right to own slaves, and these changes were perfectly clear in their intentions.
U.S. Constitution and Slavery
In place where the US Constitution states “No bill of attainder or ex post facto law shall be passed,” the Confederate Constitution added a phrase that explicitly protected slavery: “Article I Section 9 (4): No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.” This is a very clear statement about the racial foundation of slavery and the permanence of the practice in the law.
Where the US Constitution doesn’t mention the word slavery and certainly not its racial foundation, the Confederate States Constitution was quite direct: ” Article I Section 9(1):
The importation of Negroes of the African race from any foreign country, other than the slave-holding 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.” This section and the next makes it illegal to import new slaves from foreign countries, while the domestic industry of raising new crops of domestic slaves to sell down the river or to newly acquired states or territories is explicitly protected. Dred Scott is therefore written directly into this constitution. Another purpose was so that the price of slave property can be manipulated to keep the value as high as possible. These sections were made particularly attractive to Virginia, which had not yet seceded, in which slave markets were especially lucrative.
States were prevented from having power to ban the entry of slaves, a power traditionally exercised in the USA, through the “right of sojourn” clause in Article IV, section 2 (1) of the Confederate States constitution. So, no state law could limit the practice of slave holding.
Article IV Section 2.3 also guaranteed that escaped slaves would remain their masters property: “No slave or other person held to service or labor in any State or Territory of the Confederate States, under the laws thereof, escaping or lawfully carried into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such slave belongs,. or to whom such service or labor may be due.”
There is also a section added about territorial expansion that directly resolved the major reason for secession. Article IV Section 3.3:
“The Confederate States may acquire new territory, and Congress shall have power to legislate and provide government for the inhabitants of all territory belonging to the Confederate States, lying without the limits of the several States; and may permit them, at such times, and in such manner as it may by law provide, to form states to be admitted into the Confederacy. In all such territory, 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.”
Taken together these additions make it clear that the preservation of slavery was indeed the cornerstone of the Confederate States.
Tariffs. Were tariffs the casus belli, you’d expect the Confederate States Constitution would make it much more difficult for its central government and individual states to create them. In fact, the opposite is the case.
Protective tariffs were expressly forbidden. It prohibited taxes on imports from foreign countries that would be created to protect domestic industries. So protective tariffs were eliminated. Of course, the agricultural states were the ones who believed that their products were being used to bring revenue into the national government, and if this clause stood alone, it would ensure that the national government had no source of revenue.
But new revenue generation measures were added. To make up for it, Article 1 Section 8 Clause 1 allows the Confederate Congress to collect taxes, imposts and excises, which are extra taxation powers denied to the US government. So, revenue would still be collected on goods but not those specifically protectionist in nature.
The Confederate States Constitution enabled states to tax ships by omitting the phrase from the U.S. Constitution that prohibits it. Essentially, they are shifting who collects these fees to the states, benefitting those states especially with large ports.
“Article I Section 9(7)
No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.”
In the U.S. Constitution this clause follows:
“…nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”
The power of the Confederate States to tax ships to raise revenue is codified in Article 1 Section 10(3).
“Article I Section 10(3)
No State shall, without the consent of Congress, lay any duty on tonnage, except on seagoing vessels, for the improvement 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 revenue thus derived shall, after making such improvement, be paid into the common treasury.”
So, taxes could be raised by states to improve their ports. That is a major advantage to Louisiana, Alabama and South Carolina where the major ports were located.
Other Important Changes in the CSA Constitution
- The Preamble expressly created a contract between the national government and the states, not just the people. That was what the seceding states argued the US Constitution said, but it didn’t. Now, for them, it did:
“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 tranquility, 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.”
- States are sovereign (sovereign and independent character); again, what they said the US Constitution said but it didn’t.
- Eliminated ‘dual sovereignty’. No powers were established as belonging to the national government, although specific powers were delegated. This created a very weak national government; back to the Articles of Confederation.
- Required a mere majority vote in Congress for fiscal spending initiated by the President, but a 2/3’s majority if initiated by Congress. They had to watch their own spending, and keep government small. They had little money and the planters didn’t want to be taxed.
- Defines voting rights nationally, not on the state level as with the US Constitution. It strips the states of some of the power over their own suffrage qualifications in state and local as well as national elections (the “non-citizens” clause designed to prevent any Confederate state from introducing or reintroducing black suffrage, the existence of which was one of the official reasons for secession). When states’ rights came into conflict with protection of slavery, the latter won every time.
- The CSA President gets 1 6 year term. He is a lame duck from day 1.
- Gave the CSA President a line-item veto. They had to watch their spending and weren’t going to let politics get in the way.
- Placed the process of Constitutional amendment entirely in the hands of the States. The Central government had no role but the mandate to issue a call for a convention when 3 of the 7 States had already proposed amendments. Amendments could not be proposed in the Congress and were not voted on there.
- Cabinet members may answer questions on the floor of Congress. Surely this comes from the British Commons.
- The Bill of Rights is incorporated as part of the Confederate States of America Constitution.(see Article 1, Section 9 and Article 6, Section 5). This is pretty much what the Virginia ratifying convention had suggested.
The Justice System
The very existence of a Confederate States Supreme Court was antithetical to what the Confederate States was about. No Supreme Court of the Confederate States was ever formed. The inherent conflict of having a supreme national court when the states wanted the power could never be resolved. The ridiculous public explanation that it was because there was no disagreements to decide can be taken at face value as absurd.
The Justice System is not well delineated in the Confederate States Constitution, probably purposefully. The Confederate States constitution provided for a judicial branch and a Supreme Court. The national court system was to be developed by the legislature. This is covered in section 1 in both constitutions.
In the US version, a second section is included that deal with what the judicial power entails, its power over disputes between states, and its appellate nature. But in the Confederate States of America version, notice the absence of Article III Section 2. When Rhett and his friends on the Constitutional Committee in Montgomery reported out the constitution, there had been a debate as to whether the state or a “federal” court had the final word on what was constitutional, and how disputes among states, and citizens of different states should be decided. Remember, these people wanted states to have the power. So they just left that part out.
The fundamental issue is the question of judicial review. Regional courts remained in action and were very careful and serious about precedents from the “old” system. Mostly, the previous judges continued to serve and seriously tried to preserve justice as they best could. The state supreme courts issued numerous decisions interpreting the Confederate States of America Constitution, often using US SCOTUS precedents. The state courts repeatedly upheld strong powers of the Confederate Congress, especially on military matters.
Baron De Montesquieu, Charles-Louis de Secondat (1689-1755) was a political philosopher and jurist. He understood clearly the use and abuse of the court system. He practiced law for many years under the strong central rule of Louis XIV. The necessity of separation of powers was crystal clear to him. He set out his ideas in L’Espirit de la Loix, or the Spirit of the Laws, which described many of his groundbreaking philosophical ideas. Consequently his philosophy included: Rulers should have limited powers and bound to follow the law, and the power of government must be limited.
It would not have surprised him in the least that a confederation in which state executives wanted to hold onto power would create huge problems in national level issues. His principle was that so that attempts by one branch of government to infringe on political liberty should be restrained by the other branches (checks and balances). Without separation of powers, political liberty is at risk.
States can not solve judicial problems one by one without precedent. Their potential to overstep their bounds was seen over and over. Certain governors, especially of Georgia, was a serious problem for other states to work with.