The Confederate Constitution and its 21st Century Answers

Oct 10, 2011 by

Many of the problems we are currently facing may have 19th century answers. Our out of control debt, the constant expansion of the central government’s  powers and prerogatives, the erosion of personal liberties and the marginalization of the states are all addressed in the Confederate Constitution.

It is often observed that we study history so as not to repeat it. But the failed attempts of history are often worth studying too. The House of History is replete with marvelous ideas, movements and leaders who failed not because they were wrong but perhaps because they were not powerful, or simply because their time had not yet come. From the study of history we can perhaps gain perspective not only on what not to do, but also on the alternate directions the future might take us; directions that we had not yet considered.

The Confederate Constitution was nearly identical to the American Constitution. In his inaugural address, Jefferson Davis noted that “We have changed the constituent parts, but not the system of our government. The Constitution founded by our fathers is that of these Confederate States in their exposition of it.”  Some of the finest statesmen in the Union were from the South and their collective seventy year experience of the Constitution went into shaping the Confederate Constitution. They retained those elements which had been the strength of the Union but they also made alterations which experience had shown to be weaknesses.  Lord Acton noted of the Confederate Constitution that “…history can show no instance of so great an effort made by Republicans to remedy the faults of that form of government (Acton 278).”

 

  • The Confederate Constitution in its Preamble immediately defines the nature of the central government and its relationship to the states. “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 ourselves and our posterity…” Gone from this are the ambiguous claims ascribed to “the general welfare.” Gone are the confusions about the sovereign authority that constitutes the central government: It resides both in the states and the people.

 

  • The Confederate Constitution adopted, in some cases more progressively democratic structures than the Constitution of the Union. For instance, Federal officers or judges operating exclusively within a state “may be impeached by a vote of two-thirds of both branches of the Legislature thereof (Art I Sec 2). This creates a central government immediately responsible to the people it serves. This is also an assertion of states rights “Direct amenability of the Federal officer to the authorities of the state of his official activities would make both appointing power and the officer more careful” (Cobb 11).

 

  • Cabinet members were allowed the privilege of “a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department” (Art. I Sect. 6). The Confederate executive could have a much greater working relationship with the Confederate Congress than his Union counterpart. Moreover, cabinet heads would be more immediately responsive to the legislative branch (Cobb 10).

 

  • The President was given a line item veto. Many will object that this would dilute the separation of powers however, the Confederate Statesmen found an answer to that problem as well. “The President may approve any appropriation and disapprove any other appropriation in the same bill. In such case he shall in signing the bill, designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceedings shall then be had as in case of other bills disapproved by the President (Art. I Sect 7). That is to say the president can not simply cut and paste legislation. He must send the bill back to Congress and it must be passed again.

 

  • Section 8 of the Confederate Constitution differs in minute but significant ways from its older counterpart. It begins the enumeration of Congressional powers. “The Congress shall have power – 1. To lay and collect taxes, duties, imposts and excises, for revenue necessary to pay the debts, provide for the common defense, and carry on the government of the Confederate States.” Missing from this is of course the general welfare clause, which combined with the elastic clause has been the justification for much of the central governments growth.

 

  • Government interference in the economy was also strictly limited: “…but no bounties shall be granted from the treasury; nor shall any duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry…” (Art. I Sect. 8).  Under the Confederate Constitution, “to big to fail,” could not flourish, the government could not spend half a billion dollars of tax payers money to fund spurious green energy operations.

 

  • The Commerce Clause has also been used to stretch the powers of the central government beyond recognition. The limits of the Commerce Clause are more strictly defined in the Confederate Constitution. Much of Federal power comes from the construction of highways and other internal improvements related to commerce, these are sometimes justified under defense. The Confederate Constitution also limits this: “…but neither this, nor any other clause contained in the construction, shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce…” (Art. I Sect. 8).

 

  • The expenses of the central government, as well as its expansion were key motifs of the Confederate founders. Many of them being strict constructionists disapproved of Lincoln’s expansion of the cabinet by creating a Department of Agriculture. To curtail this problem in their own government they determined that: “Congress shall appropriate no money from the treasury except by a vote of two thirds of both Houses” (Art I Sect.9).

 

  • The true purpose and extent of legislation is often lost in the hundreds of pages bills occupy. Speaker Pelosi famously said of the recent Patient Protection and Affordable Care Act, that “we would have to pass the bill so that you can find out what is in it.” Omnibus bills, riders, endless obfuscating amendments were all denied by the Confederate Constitution. “Every law or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title” (Art. I Sect. 9).

 

  • Term limits of the president were limited. The president could only serve one six year term and was ineligible for re-election. Modern presidents begin campaigning for their next election as soon as they have taken their oaths. It is difficult for democracy to thrive when an incumbent candidate has the ability to travel, the security resources and the bully pulpit of the president of the United States (Cobb 11).

Republics have their own peculiar problems. Lord Acton, a British admirer of our Constitution was heartened “…by reason of those defects and abuses of principle which the Confederate Constitution was expressly and wisely calculated to remedy. I believed that the example of that great Reform would have blessed all the races of mankind by establishing true freedom purged of the native dangers and disorder of Republics. Therefore I deemed that you were fighting the battles of our liberty, our progress, and our civilization; and I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo” (Acton 362).

No system of government will ever be perfect. Human frailty and human virtue are the constituent factors by which governments flourish or fail. Our own Constitution is far from perfect. The Revolution is an ongoing proposition. In the pursuit of that Revolution let us not be afraid to find answers wherever they may be.

 

 

 

Works Cited

Acton, John. Essays in the History of Liberty. Ed. J. Rufus Fears. Indianapolis: Liberty Fund, 1985. Print.

Cobb, Andrew. “The Constitution of the Confederate States: Its Influence on the Union It Sought to Dissolve.” Georgia Historical Society Quarterly 5.2: 7-15. Print.

Constitution of the Confederate States of America. Montgomery: Shorter and Reid, Printers, 1861. Print.

 

3 Comments

  1. The End is Near

    • I am not sure what this means. “Federal officers or judges operating exclusively within a state.” Could you please explain. It is also confusing how a state legislature could have the power to impeach a national officer that is given power by the collective body of states. Does that not give one state nullification over the others? Will that not cause conflict?
    • “Cabinet members were allowed the privilege of “a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department” (Art. I Sect. 6).” Do they have a vote? If so, that would be an appointed official having a vote not elected by the people. Is it forbidden for a Cabinet official from addressing Congress today?
    •”Government interference in the economy was also strictly limited, shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce…” If that were to happen, would we have interstate highways? Are they for defense?

    I have come to the conclusion that no matter how precise the language is man will find a way to use it for evil. There is nothing wrong with the wording of the “necessary and proper clause” in the Constitution, the evil stems from the interest of man to twist or ignore what does not benefit him. Our true nature is to sin and do evil.

  2. Jesse Harris

    Thank you for your comments!

    1. Federal officers might include such functionaries as revenue collectors or I suppose today even national park supervisors. With respect, the point of authority (state or central) is somewhat moot. Madison asserts this in Federalist 46:

    “Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States…The federal and state governments are in fact but different agents and trustees of the people constituted with different powers and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasoning’s on this subject; and to have viewed these different establishments not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other.”

    According to Madison, both aspects (state and central) exist to serve the people, they operate within different spheres and if the central government adheres to the enumerated powers (a critical point) there should be no collision between state and national interests. Indeed the entire system is given stability through a constant synergy of checks and balances. We are most familiar with the checks and balances between the three branches of the national government. But there is also intended to be checks and balances between the state and national governments. The Confederate Constitution sought to make this more explicit.

    Confusion often arises with the interchangeability of “federal,” “central,” and “national,” in our everyday discourse; Madison is also sometimes guilty of this. But he is also very clear in Federalist 45 that the states are a constitutive part of the federal government: “The State governments may be regarded as constituent and essential parts of the federal government; whiles the latter is nowise essential to the operation or organization of the former.” The federal government is not above the states in the relation of master to subject.

    2. No, cabinet officials were only given the privilege of speaking not of voting. The idea was much more parliamentary in outlook and was intended to facilitate discourse between the executive and legislative branches.

    3. I had the same interstate highway question as you to be honest. Since the Confederate Government only existed from 1860-1865 I do not know how this would work out. The only parallel in the Confederate Constitution regards highways is navigation. The government has the authority to furnish “lights, beacons, and buoys, and other aids to navigation upon the coasts, and the improvement of harbors and the removing of obstructions in river navigation, in all which cases, such duties shall be laid on the navigation facilitated thereby, as may be necessary to pay the costs and expenses thereof…” (Art. I Sect. 8).

    Defense is clearly listed within the range of the Confederacy’s necessary and proper clause. I would therefore conclude that interstate highways for defense might be justified. However, if they are really for defense, highway funds could not legitimately be denied to a state if it did not acquiesce to a legislative agenda of the national government (for instance a legal drinking age or the recognition of federal holidays).

    4. I wholeheartedly agree with your final sentiment: Only a virtuous people will have a virtuous government; and I do not necessarily agree with all of these proposals. My intent was to see how many of them might have preserved us from the position we now find ourselves in. Nevertheless, language does facilitate interpretation. There is a lasting and well thought out philosophy of perpetual federal elasticity. The founders could not have foreseen every contingency of interpretation. The statesmen meeting in Montgomery to perfect a federal constitution had the benefit of hindsight denied to our forefathers. And we are granted the hindsight to see the problems have persisted to this day; through the same fault of an erroneous interpretation. If we can use any language, or any constitutional mechanism to hinder the erosion of liberty it is our duty to do so.

  3. Joseph

    I read your piece & found it quite compelling. But what one must take into account is the motivation of the framers of both constitutions, American & Confederate, to fully understand the impact of not only what has resulted in our legacy, but in what might have happened had the South succeeded.
    The framers of the U.S. Constitution had endured a war for independence against the British. They had attempted a loose confederacy for 6 years, opperating as basically 13 independent nations and saw flaws in it. There were many of them who wanted to keep that system, but admitted that it needed to be reformed. The “compromise” that they came up with was our Constitution, opposed by many by not going far enough, and others by trampling upon state’s rights. As a judge once said, “I know I made the right decision, because nobody is happy”.
    Nevertheless, we went on and here we stand today. Many problems still exist, but these are the problems of people. You can’t make the perfect system because the people involved are imperfect.
    On the other hand, The Confederacy drew up their Constitution to preserve what they felt was their right to maintain a certain order of things throughout Southern society, something they felt threatened by, by remaining in the Union. They never succeded, & we don’t know if they would have ended up redoing the whole thing in a few years like we did. One issue, the obvious one, was how would they deal not only with the slavery issue, but the highly immoral racial philosophies that were the basis of it. The South itself, although basically in a defensive mode for the 100 years after the Civil War, has done a better job dealing with the issue in modern times than the North ever did. One must remember during the desegregation days of the 60′s, the worst race riots were in Boston & other Northern cities, not down South. Yet the question still remains, what would have happened if the South had won the war. I find it hard to believe that slavery would still be around today, mostly for economic reasons.
    Yet traces of the attitude of the plantation still remain throughout the South. The South is basically unfriendly territory to organized labor, & because of this the average income in the South is far lower than of the North. The North, on the other hand, can not compete with the industrialized South. The net result is a migration to the Sun Belt states. The exception to this today is California, which has adopted New England style economic ideals at its own peril.
    So the basic question I ask is…What would the net result be of the Confederate Constitution be? We can only guess, because it never came to pass.

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