In Blood and Ink: The Life and Documents of American Democracy

43



CONFEDERATE CONSTITUTION

This chapter deals with those portions of the Confederate Constitution which depart from the United States Constitution. As pointed out in Chapter 23, the articles and sections of the two constitutions correspond in numbering, and thus can be conveniently compared by printing them side by side. This method has been adopted, with brief comments where necessary.

Omitted sections of the Confederate Constitution have the exact wording of the corresponding sections of the Constitution of the United States. But where a Confederate section differs in part from the correspondingly numbered section of the United States Constitution, both are shown, with the differences denoted by italics.


 
The extended comment already presented in Chapter 23 need not be repeated here. However, the principal point is that the Confederate Constitution had no provision for the general welfare, either in the preamble or in the body of the Constitution. Each state was sovereign, the general government was a mere agent.

 

Note the Confederate substitution of delegated for granted—a revision reflecting John C. Calhoun's theory that all sovereignty was vested in the individual state separately, and none in the federal government. The concept of a nation was repudiated.


 








 






The Confederate Constitutional provision for impeachment by the individual state was to make the Federal judiciary completely subservient to the several states. No general law would then have been enforceable, and the Federal government would have been not only weak, but impotent.

Several following identical sections are here omitted. Enough of Section 6, Article I, is presented to show an interesting addition to the Confederate Constitution:


 






For a long time there had been discussion in the country about permitting members of the Cabinet to have a seat in Congress. The Confederates believed this a good idea; many today believe it would be a proper thing for the United States Government. And, as a matter of fact, it can be done by mere resolution of either house of Congress, and without amending the Constitution.

Since the Confederate Government was to be a mere agent, and was to do little or nothing for the people of the several states, its power to make appropriations was restricted by Section 7 of Article I. This gave the President the power of item-veto, that is, the power of approving part of an appropriation and disapproving other parts:

 












THE GENERAL WELFARE CLAUSE CUT OUT OF
THE CONFEDERATE CONSTITUTION

Now we reach the General Welfare Clause, containing a most important power of the United States Congress. Here is what happened to that section in the Confederate Constitution:


 







This is one of the clauses which received full comment in Chapter 23. However, I hope that historians will do more research here. This would not be of mere historical interest, but might throw light on some of our present-day economic viewpoints, as well as on some of the theories of our lawyers and courts.

INTERNAL IMPROVEMENTS FORBIDDEN BY CONFEDERATES

Another difference of great importance is the prohibition of internal improvements:

 


















This prohibition was of course to prevent industrial development, thereby serving to keep the country agricultural and to maintain King Cotton on his throne forever. It was to be followed to the limit. It was understood that the government should not even build a post road. Only "post-row to" were to be established or designated, and the Post Office was to be self-supporting:

 





 





Concerning slavery, Alexander H. Stephens of Georgia said:

The new constitution has put at rest forever all the agitating questions relating to our peculiar institution African slavery as it exists amongst us the proper status in our form of civilisation.

To which he added that slavery and the new Constitution were in strict conformity with "the ordination of Providence." There had existed in the South for nearly fifty years a large body of literature showing that God had ordained slavery.



 



The provision in the United States Constitution prohibiting one state from laying any duty on another is omitted from the Confederate. Thus one can foresee a repetition of all the evils of government under the Articles of Confederation. Attention is also directed to Section 10, paragraph 3, under which states could lay duties for improving rivers. This, of course, could have been used to prevent merchants of one state from entering another. There could have been no redress. Also in Section 10, state compacts are provided for. This had been found to be impracticable even under the Articles of Confederation. With the Confederate Constitution setting up a government of mere agency, and no sovereignty, this provision would have broken the South into various states, regions, and localities, and further weakened the federal government.

DIFFERENCES IN MAKING APPROPRIATIONS

 


























There is also in Section 9 a Bill of Rights, which duplicates the first eight amendments to the United States Constitution. In the Confederate Constitution these rights apply, of course, only to white people. There is one further paragraph, as follows:

 




This provision was intended to prohibit "riders" on general legislative bills, just as the provision for item-veto was to curb obnoxious items in appropriation bills.

Here is part of Section 10, which was commented upon above, under Section 9:


 











THE EXECUTIVE POWER—ARTICLE II

The presidential, or executive, power is in Article II of both Constitutions. Here is the beginning of both, which is self-explanatory:


 

Many persons still advocate that the Confederate idea should be applied to the United States through an amendment adopted for that purpose.

MORE OF ARTICLE II



 


















ARTICLE III, JUDICIARY, THE SAME

It is not necessary to include Article III, concerning the Judiciary. The only differences are jurisdictional and of slight importance.

There is a prevalent misconception that the Constitution of the Confederacy provided for no Supreme Court. Actually it contained exactly the same provisions as those in the United States Constitution. But the Southern States were suspicious of the Supreme Court, notwithstanding that the Court had usually followed their wishes particularly in the Dred Scott Case, which blessed slavery forever, and even extended it. Therefore, with the formation of the Confederacy, although the constitutional power was granted, no court was ever appointed, and some authorities say that there was never any intention to appoint one.

Here are some comparisons from Articles IV and V. Note the open reference to slavery, which appears in several other places:


 





Note that the right of travel "with slaves and other property" might have later been construed as a condition of travel. Such a construction might have left the overwhelming majority of the white population without the protection of the government in their right of travel, because they had no slaves or "other property." The Articles of Confederation (1781) guaranteed the right of "ingress and egress" for all Americans, but it is not mentioned in the United States Constitution. The right of travel in the United States is still questionable, in that the Supreme Court has not (to date) protected citizens from being intimidated into leaving a state, from being deported, or from being "escorted across the state line." However, the Federal Circuit Court of Appeals has rendered a decision in the Hague case (see chapters on Bill of Rights and Civil Liberties) protecting all these rights, and I predict it will be affirmed by the Supreme Court.

Article IV, Section 2:


 



The United States Constitution did not expressly provide for slavery. But the institution was implicitly accepted in the prohibition of slave trade after 1808 (Art. I, Sec. 9). The Confederate provision in Art. IV, Sec. 2, above quoted, did in fact apply to both black slave and white servant. By the time of the Civil War, the practice of capturing and returning white servants had stopped had become in effect "Unconstitutional," although it is even now possible under the Constitution.

However, the Confederates put it in with a bang, applying it not only to slaves but to "other persons." History shows that free people have frequently been pushed down into serfdom, and "other person" of the Confederate provision eventually may have been applied to large groups of white persons to workers, small farmers, landless share-croppers and tenants. White persons not owners of slaves already had a low social and economic status, and were treated with contempt not only by the white slave-owning class, but by the Negro slaves as well.

STATES AND TERRITORIES: SLAVERY GOES WITH THE FLAG

Continuing out of Article IV:


 



















The United States Constitution (as we saw when discussing the Louisiana Purchase) does not provide specifically for the acquisition of new territory; the Confederate said "the Confederate States may acquire New territory." Moreover, by the last section of this Article, there was incorporated a provision protecting the institution of Negro slavery wherever the Confederate flag should fly.


 

Articles VI and VII are formal, establishing the status of the Confederate Government. Article VI includes, also, Articles 9 and 10 of the "Bill of Rights" of the Federal Constitution of the United States.
 
[The Congress of Delegates from the seceding Southern States convened at Montgomery, Alabama, on February 4, 1861. They quickly adopted a provisional Constitution, and in less than a month, devised and approved a permanent Constitution, which was adopted March 11, 1861.

The original signed manuscript consists of five vellum sheets pasted together into a roll 148 1/2 inches long. This manuscript was part of a wagon load of boxes rescued from the railroad station in Chester, S.C. in April of 1865 by Felix G. DeFontaine, a newspaper correspondent during the war. The boxes, which had been abandoned by fleeing troops, contained the records of the Confederate government, which were being sent south after the evacuation of Richmond. The prizes among the records which DeFontaine recovered were the two Constitutions of the Confederacy, Provisional and Permanent.

DeFontaine sold the manuscript copy of the Provisional Constitution at auction in New York in 1883. It is now in the Museum of the Confederacy in Richmond. He sold the manuscript copy of the Permanent Constitution to Mrs. George Wymberley Jones DeRenne on July 4, 1883. The University of Georgia purchased the Constitution from the DeRenne family in 1939.]