Comparing Constitutions

Southern leaders had few complaints with the old Constitution under which they had lived. The heart of the conflict, they felt, was that the intent of the written law had been subverted by Northern sectionalists.

Three major areas of conflict were over protective tariffs, the settlement of common territories, and the right to be secure in one’s property. Although tariffs enacted to foster industry had received initial approval from the South, Southerners came to be opposed to these measures as overly beneficial to Northern manufacturers and injurious to the agricultural South. The question of settlement and territorial administration was a particularly abrasive issue, as Northern states sought to stop the expansion of slavery into the territories and Southerners insisted on the right of persons to migrate into the territories with their property, including bound laborers. This was related to the third issue—security in property. Specifically, the properties in question were slaves, and Northern Abolitionists had already demonstrated their view on this matter in the halls of Congress, the prairies of Kansas, and Harpers Ferry, Virginia.

Various compromises and appeasements had held the Union together through past crises, but Abraham Lincoln’s election in November 1860 was the solvent that destroyed the glue. Seeking to form a new coalition of states, Southern representatives met as a provisional Congress in early February 1861 and a “Committee of Twelve” was appointed to draft a plan of government. Their work resulted in a provisional Constitution, and on March 11 a permanent Constitution was adopted.

The government established by the Confederate Constitution closely resembled that which had formerly governed the Union. It was a republican form of government with power divided among an executive, a bicameral legislative, and a judicial branch. Each of the twelve amendments attached to the United States Constitution was incorporated into the body of the new document, with various alterations and additions. Some of the changes obviously reflected the agrarian and fiscally and politically conservative philosophies of the Southern framers, but others, in the words of Vice-President Alexander Stephens, reflected “the experience of seventy years” and “were proper and necessary for the harmonious working of the system.”

According to William Robinson in a study published in the Journal of Southern History (November 1938), the Southern Constitution “marked the high point in American constitution-making.” Besides changing the name of the document to reflect the name and nature of the new Southern government, the first alteration occurred in the Preamble. In the first sentence of the CSA Constitution the framers made clear the nature of the government by stating that it was created by individual states, each one “acting in its sovereign and independent character….” This was consistent with States’ Rights philosophy and was done to preclude the troublesome controversy which had surfaced over the nature of the United States government-—whether that government was the creature of the states, or of the people as a whole.

Omitted in the Preamble was the “general welfare” clause. The gentlemen who adopted the Confederate Constitution were basically conservative and believed that citizens should look after their own welfare. Included in the Confederate Preamble was an invocation of the “favor and guidance of Almighty God.” While there was no mention of the Deity in the United States Constitution, the earlier Articles of Confederation had made reference to the “Great Governor of the World.”

The more precise use of words became apparent in the Southern Constitution in Article I, Section I., where Congress was “delegated” the legislative powers of government. In the 1787 document Congress was “granted” those powers. The men at Montgomery preferred delegating authority rather than granting powers. This distinction was intended to emphasize that government should remain the servant of the people.

The subject of voter qualification for state and federal officers was also taken up in Article I, Section II. Whereas various states had previously allowed unnaturalized aliens to participate in the election process, only citizens of the Confederate States were granted the vote. Another deviation from the old Constitution pertained to the apportionment of representatives. Under the United States Constitution, the number of representatives could not exceed one for every thirty thousand citizens, but the Confederate Constitution set the limit at fifty thousand.

As for States’ Rights, the Confederate Constitution was noticeably silent on one issue, and yet explicit on another. Nowhere in the document is found any specific reference to the right of secession. This may appear strange, but the State sovereignty affirmed in the Preamble clearly implied that States could remove themselves from the general government. Besides, the denial of the right of secession from the Confederacy would have been inconsistent with the Constitutional view upon which the Confederacy was based. An assertion of States’ Rights, though it was not called such, is found in the Second Section of the First Article. Any federal officer, “resident and acting solely within the limits of any State,” could be removed from office by a two-thirds vote of that State’s legislature. This was a major departure from the old Constitution, but consistent with States’ Rights beliefs.

The next major variation from the United States Constitution is found in the power of Congress to pass legislation allowing Cabinet members to have a non-voting seat on the floor of either House. This was done to promote greater cooperation between the executive and legislative branches and was in theory a sound measure, but Congress never passed the appropriate legislation. Another Confederate measure to streamline the governmental process was the power given the President to exercise a line item veto in appropriation bills. This was done in the spirit of fiscal restraint and would have expanded the power of the Presidency.

The “Congressional Powers Section” of the Confederate Constitution is another example of the fiscal conservatism of the Southern leaders. All taxes and duties were to be levied only “for revenue necessary” to carry on the limited functions of government. Furthermore, no taxes or import fees were to be enacted to “promote or foster” American industry. This was classic laissez faire. Protective tariffs, so long denounced by Southern leaders like John C. Calhoun, were thus explicitly forbidden.

Federal appropriations for internal improvements, except for the express purpose of aiding navigation, were likewise prohibited. A major departure from the United States Constitution was the power of Congress, by a two-thirds vote of both Houses, to levy an export duty on articles. States were also given the power to lay a tonnage fee on vessels in their waters, but the funds were to be applied solely to improving the navigation of rivers and harbors that the ships used. States could also enter into compacts with other states for navigational improvements in regard to rivers which either ran between them or flowed through two or more states.

On issues dealing with slavery, the Confederate Constitution was much more specific than the old Constitution. For one thing, slaves were called slaves and not “other Persons” or “such Persons.” The Southern document was also more concrete on the importation of foreign slaves. Slave importation in the United States was prohibited by Congressional law in 1808, but it was never legal under Confederate law, except for slaves brought in from states and territories of the United States at the discretion of Congress. Confederate States were not denied the right to abolish slavery within their own boundaries and there was no provision concerning the acceptance of free States into the nation, but the right of persons to carry their chattels into any part of the Confederacy was guaranteed.

Economic frugality, evident in many places in the Confederate Constitution, was strikingly apparent in the appropriation powers of Congress. The President’s line item veto has already been mentioned, and Congress was also limited in its power to appropriate funds on its own initiative. Except by a two-thirds vote by both Houses, or for the purpose of paying “its own expenses’’ or for claims against the federal government, no money could be taken from the Treasury unless it was asked for by one of the heads of the governmental departments and submitted to Congress by the President.

In addition, all monetary bills submitted were required to specify the exact amount of money asked for and the purpose of the said funds. Related to this was a prohibition against legislation that was overly broad in scope. That is, each law had to be for one specific purpose only and had to specify that purpose in its title. This restriction would thus forestall many legal ambiguities, but could, have necessitated Congress’s spending an inordinate amount of time enacting new legislation. Another economy in government measures was for the Post Office to be financially independent of federal appropriations after two years. This was also done to curb abuses which had arisen in the franking privileges of Congressmen.

One of the most striking differences in the two documents concerned the President and Vice-President. The terms of the two officers were set at six years, and the Chief Executive was not eligible for re-election. This meant that the President could devote his entire tenure to the affairs of state and not have to spend the latter years of a first term running for re-election. William Robinson, in his 1938 study, explained this limitation by stating that “inasmuch as political parties had no organized existence in the Confederate States, there was no influence at work to perpetuate old schemes for achieving and maintaining party advantage.”

The issue of patronage was also dealt with by allowing the President to remove only Cabinet members or diplomatic officials at his own pleasure. To remove other officers of the executive department, the President had to report to the Senate why they should be removed. Furthermore, the President could not appoint any person to an office when the Senate was in recess if that person had been rejected by that body in its last session.

The judicial powers of the Confederacy were very similar to those of the United States, in order to provide a smooth transition for the new government. The only major difference was the immunity of States from suits by citizens of a foreign power.

The allowance for admission of new States was made subject to the approval of a two-thirds vote of the House of Representatives and like vote of the Senate (the Senate, however, was to vote by States). It was recognized that the Confederacy might acquire new’ territories, and Congress was given the power for passing legislation concerning them. The issue of “popular sovereignty” was thus put to rest. The institution of slavery was guaranteed in each such territory and so was the right of Confederate citizens to travel to those lands with their slaves.

The Constitutional amendment process was markedly different from that under the old Constitution and once again reflected the States’ Rights philosophy. Under the United States Constitution, Congress took the first steps toward amendments and then called upon the States to convene and consider the proposals. Under the Southern Constitution, three or more States, “legally assembled in their several conventions,” could call upon Congress to summon a general convention of the States to consider amendments. Once assembled, if two-thirds of the States agreed upon an amendment, it then went to the individual States for two-thirds approval from their legislatures or separate state conventions. If thus approved, the amendment became part of the Constitution.

Constitutional ratification was similar to that required by the United States Constitution, but the number of States needed to approve the adoption of the document was smaller than the number required in 1787. This, of course, reflected the smaller number of States joining the Confederacy.

E.M. Coulter, in his book The Confederate States of America (LSU Press, 1950). argues that the CSA Constitution is “one of the most interesting documents of fundamental law in America” for the “clarifications and additions” it made to the United States Constitution. Though broadly similar to the 1787 document, the Confederate Constitution varied in a number of ways and reflected the conservative and agrarian views of its framers. To contemporaries, as expressed in the March 15 edition of the Charleston Mercury the CSA document was “the best Constitution, we believe, ever devised by man.”

Not all praise for the Constitutional changes came from the South. The New York Herald stated that the Southern Constitution contained a number of “very important and most desireable improvements” that should have been made in the United States Constitution. Had the “excellent amendments” concerning economic matters been written into the 1787 document, according to the Herald, S300-500 million could have been saved from “wasteful squandering in swindling lobby jobs, contracts, and c.”

Other people, such as Frank Owsley in State Rights in the Confederacy, stopped short of condemnation, but blamed its strong States’ Rights aspect for the ultimate failure of the Confederacy. Whichever side is argued, it is interesting to note that some of its changes, such as a single expanded Presidential term and the line item veto, are issues contemplated and debated today.

The above was originally published in the Fall 1986/1987 Winter issue of Southern Partisan Magazine.

Published by The Abbeville Institute ~ September 18, 2017.

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