I recently noticed that my former Constitutional Law professor, Mark Graber, along with Professor Howard Gillman, published The Complete American Constitutionalism, Volume 5, Part I: The Constitution of the Confederate States. I have been fascinated by the Confederate Constitution for quite some time. As you would expect, most people are not going to devote much time or energy to study or write about the governing charter of a short-lived and reviled government. So I was pleasantly surprised to see that Graber and Gillman had produced a whole 560-page volume on the topic.
My interest in the Confederate Constitution stems from one of the most maddeningly persistent arguments made by some self-styled libertarians or constitutional conservatives: that the real grievance of the South was that the Federal government had become excessively powerful, and that the Confederacy was trying to restore the proper balance between the central and local governments. Under this theory, the primary concern of the Confederates was federalism, limited government, free trade, and states’ rights, while slavery was a minor issue. The Confederate Constitution, however, tells a very different story.
While there is ample historical evidence to show that this explanation for Southern secession is incorrect (most obviously the fact that they openly declared that they were seceding over slavery), I looked to the Confederate Constitution to see if the government instituted by the south really would have promoted a more limited government. If you have any familiarity with the U.S. Constitution, then you will quickly notice the incredible resemblance between the two documents. They are not just similar. The Confederates were not just inspired by the U.S. Constitution. They copied that vast bulk of it word for word. It is much more accurate to say that the Confederates amended the U.S. Constitution than that they drafted a new one.
This shows that the Southerners were, for the most part, content with the status quo of American government. Surely if they thought an issue was important enough to fight, kill, and die over, then they would have also thought it important enough to include in their Constitution. By reviewing the changes that the Confederates made to the Constitution, we can discover what actually motivated succession. So, as a first-year law student, I began a project of laying the two constitutions out, side by side, and examining, clause by clause, how they differed. (This is what all 1Ls do for fun, right?) Those who wish to view the full results of this project may view it here.
This is almost exclusively a textual analysis of the Confederate Constitution. I have not seen a Confederate equivalent to the Federalist Papers or Madison’s Notes of Debates in the Federal Convention of 1787 to provide any insight into the drafting of the Confederate Constitution (hopefully Graber and Gillman’s book sheds light those types of sources). Additionally, the Confederate President and Congress never got around to nominating and confirming justices to the Supreme Court, so there is no authoritative interpretation of the document. It is also unclear whether decisions of the U.S. Supreme Court regarding identical provisions should be considered binding. I am presuming that most of the major decisions of constitutional law would have been followed, but who knows.
Below I will summarize the most significant changes. I will start with those changes that could potentially have resulted in a more limited federal government and greater federalism, which could generally be considered a positive development by libertarians and conservatives. Next, I discuss several changes that would not have resulted in a more limited government but are noteworthy nonetheless. Finally, I examine the numerous changes to the Constitution regarding slavery. Ultimately, I must conclude that the driving force and objective of the Confederate Constitution was to solidify the institution of slavery and protect it from all legal and political assault.
Changes that Promote Limited Government
At first glance, there is some reason to believe that the Confederate Constitution would do a better job at promoting limited government. There are many changes that libertarians and small government conservatives would support. Several of these provisions have analogs in numerous state constitutions, and one has even been adopted into the Federal constitution. After closer scrutiny, however, I believe that these changes would have been less significant in practice than they are on paper.
The Tax and Spending Clause
The most significant change is to the Tax and Spending Clause of Article I, Section 8, which, in the U.S. version gave Congress the power “To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.” The Confederate version made three important changes: (1) excise taxes could only be levied “for revenue” and not as sin taxes; (2) tariffs and duties could not “be laid to promote or foster any branch of industry”; and (3) spending must be for the common defense or to “carry on the Government of the Confederate States” rather than for the “general welfare.”
These three changes have the potential to constrain Congress’ power to tax and spend. The government would no longer have the power to engage in protectionism through tariffs. Nor could it punish consumers and disfavored industries with paternalistic sin taxes. Most importantly, the nearly limitless interpretation of the “general welfare” adopted by many politicians such as Alexander Hamilton (and later endorsed by the Supreme Court during the New Deal) is replaced with a seemingly more limited spending power.
There is reason to doubt, however, that these changes would have had as significant an effect as many would like. To begin with, what is the difference between a tariff designed to raise revenue and a tariff designed to “promote or foster any branch of industry?” Similarly, what is the difference between an excise tax “for revenue” and an excise tax to discourage consumption of a disfavored product? Both tariffs and excises produce revenue, and both discourage the consumption of some products in favor of others. If I am a member of the Confederate Congress and I want a protectionist tariff, all I must do is say that the purpose is to raise revenue. That it just so happens to protect a domestic industry is just a convenient “side-effect.” Similarly, if I think fossil fuels are destroying the environment, I can just propose an excise tax on coal and oil “for revenue.” I can vehemently deny that I am trying to destroy the fossil fuel industry or promote renewables, because after all, I am just bringing in revenue to the Treasury.
Doing away with spending for the subjective and vague “general welfare” and replacing it with spending to “carry on the Government” is a more hopeful change. In theory, a narrow interpretation of “carry on the Government” would render a significant majority of current federal spending, including most wealth redistribution and entitlement spending, unconstitutional. But I think that “carry on the Government” is still slippery enough for politicians and judges to justify most government spending. After all the Social Security Administration is a part of “the Government” and it needs money in order to “carry on” its mission of writing checks to people.
Don’t get me wrong, I prefer this version of the Tax and Spending Clause to what we have today. If someone proposed an amendment to adopt this language I would support it, but I don’t think it reflects a serious desire to restrain the power of Congress. If you really wanted to restrict the abuse of tariffs and excise taxes to pick and choose economic winners and losers, then just require that all tariffs and excises must be uniform across all products in all industries. If you want a tariff or an excise tax, then it would have to be the same for everything. That way Congress can still raise revenue, but it has no power to play favorites. Or you can just take away Congress’ tariff and excise powers entirely (I’ll let the tax wonks out there debate what type of tax is preferable). Similarly, if you really wanted to restrict the spending power, it isn’t hard to think of a better way. How about saying that Congress may only tax and spend to “provide for the common defense or to execute one of the government’s constitutionally enumerated powers.” I am sure that anyone who spent any significant amount of time thinking about it could come up with an even better wording. These are the types of things you would do if you actually wanted to address the problem rather than paying lip service to it.
Federal Transportation Infrastructure
If you are the type of libertarian who takes enormous delight in expounding upon the merits of private roads, then you might at first think that the Confederacy is for you. That is because the Confederate Commerce Clause, Article I, Section 8, Clause 3, states that “neither this, nor any other clause contained in the Constitution, shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce.” By “internal improvement intended to facilitate commerce” the Confederates were taking a pop shot at the numerous turnpikes, canals, and railroads that Northerners often wanted the Feds to pay for.
While federal transportation spending (whether it be in the 19th or 21st century) certainly tends to consist of wasteful boondoggles designed to shower largess on special interests, this just isn’t a problem that I get all that worked up about. If we ever get to the point where the Bridge to Nowhere is the biggest problem with the federal government, then I will die a happy man. As a practical matter, the Confederate Constitution only banned federal transportation infrastructure, not state and local infrastructure, and state and local infrastructure projects can be just as ridiculous as federal projects (how far over budget is the California Bullet Train). Perhaps this is an improvement, but it is hardly a revolutionary change.
The Post Office
I find it quite amusing that the Confederates included a constitutional mandate, found in Article I, Section 8, Clause 7, that the Post Office must fund itself with its own revenues. Even in a world with no phones or Internet, the Post Office was apparently still unable to turn a profit and instead was a burden on the taxpayers. I support this change, but why don’t we just privatize the Post Office and be done with it.
Local Impeachment of Federal Officials
A thought-provoking idea that the Confederates adopted in Article I, Section 2, Clause 5, is to allow state legislatures to impeach any federal executive or judicial official who operates solely within the borders of that state. This could have served as a useful check on local federal officials, particularly federal district judges and prosecutors, but the impeachment would still have to be tried by the Confederate Senate. I suspect, however, that if state legislatures began making extensive use of this power to remove unpopular federal officials, the Congress and executive agencies would just redraw the territorial boundaries of these lower officials so that they straddle multiple states. There is no reason that a federal judge, prosecutor, or other federal official must only operate only within one state’s borders.
No Federal Diversity Jurisdiction
To lawyers (and only lawyers) the most interesting change might have been the elimination of federal diversity jurisdiction from the federal courts. To the non-lawyers out there, federal diversity jurisdiction is what allows a citizen of state A to sue a citizen of state B in a federal court, rather than a state court. The thought was that state courts would be biased in favor of their own citizens, so federal diversity jurisdiction provided a neutral court to adjudicate cases. Many believed that it was problematic that this allowed federal courts to create federal common law on matters such as contracts, torts, and family law – areas traditionally left to the states. In the 1938 case of Erie Railroad Co. v. Tompkins, however, the Supreme Court ruled that federal courts hearing diversity jurisdiction cases must apply the substantive law of the state, not federal common law. We lawyers spend an inordinate amount of time – in law school, bar exam studies, and in practice – agonizing over Erie and its meaning, so to us the elimination of diversity jurisdiction seems to shake the very foundations of the earth. I suspect that most laymen couldn’t care less.
Line-Item Veto, Single Subject Rule, and Term Limits
Finally, the Confederate Constitution included several clauses found in many state constitutions. Article I, Section 7, Clause 2 provides the President with a Line-Item Veto for appropriations bills, which could potentially be used to cut down on wasteful pork barrel spending. The Line-Item Veto has had a mixed record, however, at the state level, and there are some libertarians who object that it would further strengthen the expansive powers of the President at the expense of Congress. A Single-Subject Rule was added by Article I, Section 9, Clause 20, which requires all legislation to address only a single subject, so enormous, must-pass omnibus bills and riders attached to unrelated laws would not be allowed. As with the Line-Item Veto, the Single-Subject Rule is very common in state constitutions, but enforcement can vary, resulting in the Rule being a meaningless formality in some states and a serious restraint on legislation in others. Lastly, the Confederate President was limited to a single 6-year term. I generally think that each of these three changes was a good thing (I think I even prefer the single 6-year term to a limit of two 4-year terms), but I am skeptical that any would have resulted in a significant shift in policy.
The combined effect of each of these changes, if viewed in the most optimistic light, could have resulted in a nation more committed to limited government and federalism. I think a lot of it is fluff, but good fluff at least. Unfortunately, these are not the only changes that the Confederates made.
Miscellaneous Changes
There were a handful of significant changes that do not fit neatly into either the pro-limited government or the pro-slavery categories, but they seemed worth noting.
First, the U.S. Constitution places and absolute ban on the taxation of exports. Article I, Section 9, Clause 6 of the Confederate Constitution, on the other hand, allows the taxation of exports with a 2/3 vote of both houses of Congress. Perhaps the fact that the Southern economy was built around exporting cash crops led the authors of the Constitution to believe that this might end up being the only reliable source of revenue. Whatever the reason, this seems to cut against the free trade, anti-tax narrative of the myth.
Second, the Port Preference Clause of the U.S. Constitution forbids federal preferences for the ports of any one state over the ports of any other state, and says “nor shall vessels bound to, or from one state, be obliged to enter, clear, or pay duties in another.” The Confederate Article I, Section 9, Clause 6, on the other hand, deletes this last sentence. While I confess that I am no expert on the Port Preference Clause, I don’t see any reason to drop the line unless you wanted to show preference to the ports of one state by making ships clear customs and pay duties in the preferred state even though they were bound for another state. Again, this seems hard to reconcile with the states’ rights / free trade narrative.
Third, Article I, Section 6, Clause 2 gives Congress the right to give Cabinet Secretaries a non-voting seat in Congress. I note this simply because it seems to weaken the separation of powers between the executive and legislative branches.
Fourth, Article II, Section 2, Clause 3 of the Confederate Constitution specifies that only “[t]he principal officer” of any executive department, along with all diplomats, may be dismissed at the pleasure of the President. All other executive officials may only be removed for cause. This seems to be an attempt to reform the federal bureaucracy from a “spoils system” into a more professional civil service, but if flies in the face of the Unitary Executive theory that many limited government advocates now believe is necessary for restraining an unaccountable administrative state.
Finally, the amendment process of Article V is completely changed. Congress would not play any roll in amending the Constitution. Instead, if any three states suggest an amendment, a convention would be held, and if the convention approved the amendment then it would be sent to the states, where it would require approval of 2/3 of the states to be ratified. Commentators of all political persuasions have lamented over the years the arduous process for amending the U.S. Constitution. Maybe this was an improvement, but there is no way to know how this significantly easier amendment process would have been used over time.
Pro-Slavery Changes
While the non-slavery changes to Confederate Constitution were rather eclectic and half-hearted, the pro-slavery changes in the Constitution reflect one clear, overriding goal: the protection of the institution of slavery from all legal and political assault.
As anyone who has studied the U.S. Constitution knows, slavery was a touchy subject at the Constitutional Convention. While the Constitution made several morally repugnant compromises regarding slavery, the delegates to the Convention explicitly avoided using the word “slave” or “slavery.” Whatever their moral failings with regards to slavery, they at least had the decency to be embarrassed about their moral failings.
The Confederate Constitution has no such squeamishness. Slaves were called slaves. Rather than referring to the Atlantic slave trade as “the migration or importation of such persons as any of the states now existing shall think proper to admit” it speak of “the importation of negroes of the African race from any foreign country.” Rather than “three fifths of all other persons” it is “three fifths of all slaves.” A fugitive slave is simply called a “slave” rather than a “person held to a service of labour.” Far from being embarrassed by slavery, the Confederate Constitution protects the “right to property in negro slaves” and the “institution of negro slavery.”
While these repugnant changes in vocabulary might seem to have little legal significance, it is actually a direct refutation of a strain of abolitionist thought. Some abolitionists, most prominently Frederick Douglass and Lysander Spooner, argued that the Constitution’s refusal to use the word “slave” showed that the Constitution did not support slavery but in fact showed that slavery was already unconstitutional. It seems to me that Confederate Constitution’s repeated reference to race-based slavery is not just some casual and thoughtless use of racist language, it is an intentional rebuttal of the Douglass/Spooner argument.
Article I, Section 9 also forbids the government from passing any “law denying or impairing the right of property in negro slaves.” As horrifying as this provision is on its own, its precise location within Section 9 should induce nausea in any lover of constitutional liberty. This provision follows directly after the great constitutional provisions guaranteeing the Writ of Habeas Corpus and prohibiting ex post facto laws or bills of attainder. Additionally, the first eight amendments in the U.S. Bill of Rights were not located at the end of the Constitution, but were instead integrated into Article I, Section 9. The effect is quite powerful, and I suspect quite intentional: sitting right in the middle of a list of inalienable, God-given rights is the right to own black people.
The Confederate Constitution is silent on whether or not the individual states can abolish slavery within their borders. If we assume that the Confederate Supreme Court would have some day chosen to follow the holding of the U.S. Supreme Court in the 1833 case of Barron v. Baltimore, then this would mean that the states could choose to abolish slavery. In Barron, the Court held that the individual rights listed in Article I, Section 9 and the Bill of Rights only provided protection against federal action, while the states were only constrained by their own state constitutions. While many of the Radical Republicans in the north rejected the holding of Barron, it seems unlikely that the Confederates would have departed from this precedent.
Had any Confederate state ever managed to abolish slavery, however, it would have quickly found being a “free” state within the Confederacy was largely meaningless. One of the most controversial debates regarding slavery in the pre-war years was over the legal status of slaves within the “free” northern states. Sadly, one of the worst compromises in the U.S. Constitution was the Fugitive Slave Clause, which required that slaves who escape into “free” states must be returned to their masters. Over the decades northerners became increasingly resistant, if not downright hostile, towards slave catchers dispatched into the north to re-enslave blacks. The southerners, far from supporting federalism or states’ rights, insisted that the northern states abide by federal law and cooperate with the slave catchers. Given this history, it seems hard to imagine a scenario where a Confederate Congress would show any leniency in mandating compliance with the Fugitive Slave Clause.
An even greater imposition on the “free” states was what the southerners referred to as the right to sojourn. Proponents of the right to sojourn argued that a slave owner had the right to voluntarily take his slaves into a “free” state, and that the “free” state was powerless to either emancipate the slaves or insist that they be removed from the state. While in theory these “sojourns” were supposed to be temporary, in practice they often lasted years, and northerners rightly complained that it was really an indefinite right to introduce slavery into the “free” states.
For example, in the infamous case of Dred Scott v. Sandford, Scott’s owner voluntarily took him from Missouri to live in the “free” state of Illinois for a full two years, but the Court held that nothing in Illinois law could bestow freedom on Scott. Instead, it was only the laws of Missouri that could free Scott in Illinois!
The drafters of the Confederate Constitution were not content, however, to rely upon their victory in Dred Scott. They modified the Privileges and Immunities Clause of Article IV to read: “The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and 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.” Additionally, the Fugitive Slave Clause was modified to include not just escaped slaves, but those “lawfully carried into another” state. There was absolutely nothing that a “free” state could do to stop owners from bringing their slaves into the state.
The Constitution also addressed the perennial question of whether slavery would expand into new territories and states. After decades of bickering, and at times bloodshed, over slavery in the territories, the Supreme Court thought it would have the final word in Dred Scott when it declared that federal laws prohibiting slavery in the territories would deprive slave owners of their property without the due process of law.
Again, the Confederates were not content to rely upon Dred Scott. They added to Article IV, Section 3 a new clause guaranteeing that in all territories “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.” Similarly, the Confederacy could ensure that every newly state admitted also permitted slavery by requiring a 2/3 supermajority in Congress, rather than the simple majority required by the U.S. Constitution.
These new addition to the Constitution, when combined with the previously existing Fugitive Slave Clause, created an impenetrable wall protecting the institution of slavery from all political and legal attack.
Conclusion
The men who drafted and ratified the Confederate Constitution were clearly smart men who were very familiar with the seven decades of constitutional law and history since the Convention in Philadelphia. They displayed their talent by drafting a constitution that would permanently enshrine slavery as the Confederacy’s central constitutional feature. This was their objective, and they accomplished it with flying colors. Given how capable these men were when they put their mind to it, the haphazard, ineffective, and symbolic changes they made to the rest of the Constitution point to only one conclusion: that they didn’t really care all that much about anything other than protecting slavery.
This bulwark of slavery was the supreme law of the Confederacy. This is what Confederate officials swore an oath to support and defend. This is what Confederate soldiers killed and died for.
Conservatives and libertarians who insist on believing that the Confederacy was about limited government are kidding themselves.