Confederate States Constitution

Confederate States Constitution
Image of initial provisions of the Confederate Constitution
Created	March 11, 1861 (1861-03-11)
Ratified	February 22, 1862 (1862-02-22)
Location	University of Georgia
Author(s)	Provisional Congress
Signatories	43 of the 50 deputies
Purpose	To replace the Provisional Constitution (1861)

The Confederate States Constitution, formally the Constitution of the Confederate States of America, was the supreme law of the Confederate States, as adopted on March 11, 1861, and in effect from February 22, 1862, through the conclusion of the American Civil War.^[1] The Confederacy also operated under a Provisional Constitution from February 8, 1861, to February 22, 1862.^[2] The original Provisional Constitution is currently located at the American Civil War Museum in Richmond, Virginia,^[3] and differs slightly from the version later adopted. The final, hand-written document is currently located in the University of Georgia archives at Athens, Georgia.^[3] In regard to most articles of the Constitution, the document is a word-for-word duplicate of the United States Constitution. However, there are crucial differences between the two documents, in tone and legal content, primarily regarding slavery.^[1][4][5]

Changes from U.S. Constitution

• The Preambles of both Constitutions do have some similarities, though it seems that the Confederate Constitution authors set out to give a different feel to the new preamble. Both preambles are provided here. The bold text shows the differences in the two. The Confederate constitution's preamble includes references to a religious deity and perpetual government.
  • The Preamble to the U.S. Constitution: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."^[4]
  • The Preamble to the Confederate Constitution: "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 tranquillity, 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."^[1]

The Confederate Constitution followed the U.S. Constitution for the most part in the main body of the text with some changes.

Article I Differences:

• Amended Article I Section 2(1) to prohibit persons "of foreign birth" who were "not a citizen of the Confederate States" from voting "for any officer, civil or political, State or Federal."^[6]
• Article I Section 2(3) is essentially the same. Although, the clause still only counts "three-fifths of all slaves"^[7] for the population total of each State, just as it did in the U.S. with the Three-Fifths Compromise, "The number of Representatives shall not exceed one for every fifty thousand".^[7] while in the U.S. Constitution "The Number of Representatives shall not exceed one for every thirty Thousand."^[8]
• Amended Article I Section 2(5) to allow the state legislatures to impeach federal officials who live and work only within their state with 2/3 vote in both houses of the state legislature.^[7]
• Concerning the appointment of Senators Article I Section 3(1) adds "at the regular session next immediately preceding the commencement of the term of service."^[9] The State Legislature, who was responsible for the appointment of Senators at the time, must wait until the seat was vacant.
• Article I Section 4(1) deals with elections and adds "subject to the provisions of this Constitution"^[10] to the U.S. Constitution Clause. This means that each State Legislature is free to make their own decisions except where the Constitution has laid out other rules. The fore mentioned Article I Section 2(1) and Article I Section 3(1) clauses would fall into that category.
• Amended Article I Section 6(2) to allow the House of Representatives and Senate the ability to grant seats to the heads of each Executive Department in order to discuss issues involving their departments with Congress. This Clause is the same as the one from the U.S Constitution and adds:

But Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department.^[11]

• Amended Article I Section 7(2) to provide the President of the Confederate States of America with a line item veto but also required any bill which the president used the veto in to be resubmitted to both houses for a possible override vote by 2/3 of both houses.
• In an attempt to prevent the Confederate Congress from protecting industry the framers add to Article I Section 8(1).

The Congress shall have power – 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; 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; and all duties, imposts, and excises shall be uniform throughout the Confederate States.^[12]

The phrase "general Welfare" was dropped from the Confederate Clause as well.

The Congress shall have 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;^[13]

Article I Section 8(3) adds quite a bit to the U.S. Constitution in an attempt to block the Confederate Congress from passing law to "facilitate commerce"^[12] with some exceptions allowing for safety and improvement to waterways.

Article I Section 8 of the U.S. Constitution

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.^[13]

Article I Section 8(3) of the Confederate Constitution.

To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; but 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; except for the purpose of furnishing 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.^[12]

• There are changes and additions to Article 1 Section 9 Clauses (1), (2), and (4) that are covered in the Slavery section below.
• The first twelve amendments to the U.S. Constitution, including the Bill of Rights, were directly incorporated into the Confederate Constitution. This was done primarily in Article I Section 9 of the Confederate Constitution with the first Eight Amendments to the U.S Constitution becoming clauses (12) to (19).^[14][15]
• In addition to these there are three altogether new clauses in the Confederate Constitution for Article I Section 9.
• Article I, Section 9(9)

Congress shall appropriate no money from the treasury except by a vote of two-thirds of both Houses, taken by yeas and nays, unless it be asked and estimated for by some one of the heads of Department, and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the Confederate States, the justice of which shall have been judicially declared by a tribunal for the investigation of claims against the government, which it is hereby made the duty of Congress to establish.

• Article I, Section 9(10)

All bills appropriating money shall specify in federal currency the exact amount of each appropriation and the purposes for which it is made; and Congress shall grant no extra compensation to any public contractor, officer, agent or servant, after such contract shall have been made or such service rendered.

• Article I, Section 9(20) was added to limit new bills to contain only one subject when presented.

Every law or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.^[14]

Then in Section 10:

• Article I Section 10(3) Confederate States do not have the ability to tax ships and negotiate treaties concerning water ways with other States without the consent of Congress. This Clause limits the Confederate States in their ability to keep troops or engage in war as well, though they would have the ability to enter compacts for the improvement of shared rivers.

No State shall, without the consent of Congress, lay any duty on tonnage, except on sea-going 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. Nor shall any state keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. But when any river divides or flows through two or more States, they may enter into compacts with each other to improve the navigation thereof.^[16]

Changes to Article II:

• The President of the Confederate States of America is to be elected by electors, chosen by the individual states, for a single six-year term, rather than an unlimited (at that time) number of four-year terms. Article 2 Section 1(1) reads as: "The executive power shall be vested in a President of the Confederate States of America. He and the Vice President shall hold their offices for the term of six years; but the President shall not be re-eligible."^[6]
• Amendment XII of the U.S. Constitution is added here as Article II Section 1(3), (4), and (5)^[6][17]
• Article II Section 1(7) of the Confederate Constitution requires candidates for the President of the Confederacy to have resided "within the limits of the Confederate States" for 14 years.^[6]

Changes to Article III

• Article III Section 2(1) of the Confederate Constitution combines the first clause of Article III Section 1 in the U.S. Constitution with Amendment XI. The phrase "citizens of the same state"^[18] is left out and "and foreign states, citizens or subjects; but no state shall be sued by a citizen or subject of any foreign state"^[19] is added in the Confederate Constitution.

Changes to Article IV

• There are changes and additions to Article IV Section 2(1) and Article IV Section 3(3) that are covered in the Slavery section below.
• Article IV Section 3(1) make a 2/3 vote necessary for a new State to join the Confederacy.

Other states may be admitted into this Confederacy by a vote of two-thirds of the whole House of Representatives, and two-thirds of the Senate, the Senate voting by states; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.^[20]

Changes to Article V

• The process of amendment became easier (Article V Section 1(1)), requiring only two-thirds of the states rather than three-fourths. Also, amendments do not have to be passed by the Confederate Congress.^[21]

Changes to Article VI

• The Confederate Constitution adds a clause to aid with the transition from the provisional government.

Article VI Section 1(1)

The Government established by this Constitution is the successor of the Provisional Government of the Confederate States of America, and all the laws passed by the latter shall continue in force until the same shall be repealed or modified; and all the officers appointed by the same shall remain in office until their successors are appointed and qualified, or the offices abolished.^[22]

• Amendments IX and X of the U.S. Constitution are added here as Article VI Section 1(5), and (6)^[23][24][25]

Changes to Article VII

• Article VII Section 1(2) is instructions for electing permanent officials after the ratification of the Confederate Constitution are added.

When five states shall have ratified this Constitution, in the manner before specified, the Congress under the Provisional Constitution, shall prescribe the time for holding the election of President and Vice President; and, for the meeting of the Electoral College; and, for counting the votes, and inaugurating the President. They shall, also, prescribe the time for holding the first election of members of Congress under this Constitution, and the time for assembling the same. Until the assembling of such Congress, the Congress under the Provisional Constitution shall continue to exercise the legislative powers granted them; not extending beyond the time limited by the Constitution of the Provisional Government.^[26]

Slavery

There are several major differences between the U.S. and Confederate constitutions in the area concerning slavery.

• Whereas the original U.S. Constitution did not use the word "slavery" or the term "Negro Slaves",^[27] but used instead "Person[s] held to Service or Labor"^[28] which included whites in indentured servitude, the Confederate Constitution addresses the legality of slavery directly and by name.
• Though Article I Section 9(1) of both constitutions are quite similar in banning the importation of slaves from foreign nations the Confederate Constitution permits the C.S. to import slaves from the United States and specifies the "African race" as the subject. The importation of slaves into the United States, including the South, had already been illegal since 1808.^[29]

Article I Section 9(1)

The importation of negroes of the African race from any foreign country, other than the slaveholding 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.^[14]

While the U.S. Constitution reads

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.^[30]

• The Confederate Constitution then adds a clause that the C.S. Congress has the power to prohibit the importation of slaves from any state that is a non-Confederate state.

Article I Section 9(2)

Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or Territory not belonging to, this Confederacy.^[14]

While the U.S. Constitution has a clause that states "No bill of attainder or ex post facto law shall be passed"^[30] the Confederate Constitution adds a phrase to explicitly protect slavery. According to historian William C. Davis, the fact that the Confederate constitution explicitly protected slave ownership, "should hardly have surprised anyone."^[31]

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.^[14]

• The U.S. Constitution states in Article IV Section 2 that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The Confederate Constitution adds that a state government cannot prohibit the rights of a slave owner traveling or visiting from a different state with his or her slaves.

Article IV Section 2(1)

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.^[32]

• The Confederate Constitution added a clause about the question of slavery in the territories (the key Constitutional debate of the 1860 election) by explicitly stating that slavery is legally protected in the territories.

Article IV Section 3(3)

The Confederate States may acquire new territory; and Congress shall have power to legislate and provide governments 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.^[33]

Contemporary reception

According to an 1861 speech delivered by Alabaman politician Robert Hardy Smith, the State of Alabama declared its secession from the U.S. in order to preserve and perpetuate the practice of slavery, the debate over which he referred to as the "Negro quarrel". In the speech, Smith praised the Confederate constitution for its un-euphemistic and succinct protections of the right to own "Negro" slaves:

We have dissolved the late Union chiefly because of the negro quarrel. Now, is there any man who wished to reproduce that strife among ourselves? And yet does not he, who wished the slave trade left for the action of Congress, see that he proposed to open a Pandora's box among us and to cause our political arena again to resound with this discussion. Had we left the question unsettled, we should, in my opinion, have sown broadcast the seeds of discord and death in our Constitution. I congratulate the country that the strife has been put to rest forever, and that American slavery is to stand before the world as it is, and on its own merits. We have now placed our domestic institution, and secured its rights unmistakably, in the Constitution. We have sought by no euphony to hide its name. We have called our negroes 'slaves', and we have recognized and protected them as persons and our rights to them as property.

— Robert Hardy Smith, An Address to the Citizens of Alabama on the Constitution and Laws of the Confederate States of America, 1861.^[34][35][36]

Georgian Democrat Alexander H. Stephens, who would become the Confederacy's vice president, also stated that the Confederate constitution was "decidedly better than" the American one, as it "put at rest, forever, all the agitating questions relating to our peculiar institution. African slavery as it exists amongst us; the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the 'rock upon which the old Union would split.' He was right."^[37]

States' rights

Some today^[38][39] feel that the Confederate Constitution's Preamble including the phrase "each State acting in its sovereign and independent character" focuses the new Constitution on the rights of the individual States.

• The Preamble to the Confederate Constitution begins : "We, the people of the Confederate States, each State acting in its sovereign and independent character..."^[1]

The Confederate States gain several rights that the U.S. states did not have.

• The ability for individual states to impeach judges and federal officers working within their states.

Article I Section 2(5)

The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment; except that any judicial or other federal officer, resident and acting solely within the limits of any state, may be impeached by a vote of two-thirds of both branches of the Legislature thereof. ^[7]

• The Confederate Constitution omits the phrase “emit Bills of Credit” from Article 1 Section 10 of the U.S. Constitution, granting the Confederate States the right to issue such bills of credit.

Article I Section 10(1)

No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility. ^[16]

And the U.S. Constitution's Article I Section 10 with the included "emit Bills of Credit."

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.^[40]

• The Confederate States gain the ability to tax ships by omitting the phrase from the U.S. Constitution that prohibits it.

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. ^[14]

While the U.S. Constitution reads:

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. ^[30]

The ability to tax ships to raise revenue for the Confederate States is reinforced 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.^[16]

• Also in Article I Section 10(3) the Confederate States would have the power to make treaties between each other concerning waterways.

Nor shall any State keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. But when any river divides or flows through two or more States they may enter into compacts with each other to improve the navigation thereof.^[16]

The Confederate States lose a few rights that the U.S. states retained.

• States lose the right to determine if foreigners can vote in their States: Article I Section 2(1) as mentioned above.
• Confederate States also lose the ability to restrict the rights of traveling and sojourning slave owners. : Article IV Section 2(1) as mentioned above (Note: Many Southerners were already of the opinion that the U.S. Constitution already protected the rights of sojourning and traveling slave owners, thus the Confederate Constitution merely made this explicit).
• The ability for Confederate Congress to determine taxes between States.

Article I Section 9(6)

No tax or duty shall be laid on articles exported from any State, except by a vote of two-thirds of both Houses.^[14]

• The U.S. Constitution contained many of the phrases and clauses which had led to disagreement among the states in the original Union, including a Supremacy Clause, a Commerce Clause, and a Necessary and Proper Clause. The Supremacy Clause and the Necessary and Proper Clause are nearly identical in both Constitutions.^{[12][41][13][22]}
  • The Commerce Clause differs as follows in that the Confederate Congress is prevented from passing laws to "facilitate commerce",^[12] as shown above.

Interpretation by Confederate state courts

Although the Confederate States Supreme Court was never constituted, the supreme courts of the various Confederate states issued numerous decisions interpreting the Confederate Constitution. Unsurprisingly, given that the Confederate Constitution was based on the United States Constitution, the Confederate State Supreme Courts often used United States Supreme Court precedents. The jurisprudence of the Marshall Court, thus, influenced the interpretation of the Confederate Constitution. The state courts repeatedly upheld robust powers of the Confederate Congress, especially on matters of military necessity.^[42]

Signatories

The signatories of the constitution were:

• Howell Cobb, President of the Congress
• South Carolina: R. Barnwell Rhett, C. G. Memminger, Wm. Porcher Miles, James Chesnut, Jr., R. W. Barnwell, William W. Boyce, Laurence Keitt, T. J. Withers
• Georgia: R. Toombs, Francis S. Bartow, Martin J. Crawford, Alexander H. Stephens, Benjamin H. Hill, Thos. R. R. Cobb, E. A. Nisbet, Augustus R. Wright, A. H. Kenan
• Florida: Jackson Morton, J. Patton Anderson, Jas. B. Owens
• Alabama: Richard W. Walker, Robt. H. Smith, Colin J. McRae, William P. Chilton, Stephen F. Hale, David P. Lewis, Tho. Fearn, Jno. Gill Shorter, J. L. M. Curry
• Mississippi: Alex. M. Clayton, James T. Harrison, William S. Barry, W. S. Wilson, Walker Brooke, W. P. Harris, J. A. P. Campbell
• Louisiana: John Perkins Jr., Alex. de Clouet, C. M. Conrad, Duncan F. Kenner, Henry Marshall, Edward Sparrow
• Texas: John Hemphill, Thomas N. Waul, John H. Reagan, Williamson S. Oldham, Louis T. Wigfall, John Gregg, William Beck Ochiltree

See also

• Electoral College (Confederate States)
• History of democracy
• List of national constitutions

References

External links

• Confederate States Constitution at The Avalon Project
• Confederate States Constitution at the University of Georgia