Today, we welcome back guest author Sam Smith.
“The Confederate Constitution was virtually identical to the original, except that it explicitly protected slavery.”
This is one of the most common canards of Civil War history.
I don’t know where this fiction came into being, but it probably had something to do with our recent obsession with resisting “Lost Causerism.” Don Quixote de la Mancha could not have picked a better windmill! We have elevated this historiographical backwater to epic proportions in order to give us a monster to fight.
We need not build and battle strawmen while real heroes are being forgotten.
In our quest to restore slavery’s rightful significance to 19th century America, we have misrepresented and minimized one of the most important documents in federalist history.
This will not be a long article. The briefest glance will reveal the major contrasts between the two documents.
The men who wrote the Confederate Constitution were not trying to alter the fundamental ideas set forth by the American Founders. What is so interesting about their creation is that it was meant to clarify the original document. The Confederate Constitution represents what millions in the 1800s believed was the true vision of the Founders, a vision that had been abused by power-hungry and duplicitous members of the federal government.
To quote Jefferson Davis, “[this] Constitution differ[s] only from that of our fathers insofar as it is explanatory of their well-known intent.”
In their explanation, the Confederates made many changes. The explicit protection of slavery was one part of that. However, the Confederates went much further, crafting language that significantly restricted federal commerce regulation, limited federal spending, and gave states tools to assert their rights.
There were several other small changes, such as the alteration of the executive term and expanded guidelines governing interstate relationships. I will briefly highlight the major contrasts below:
The interstate commerce clause in the Federal Constitution is commonly touted as its most ambiguous and powerful. Indeed, the wording gives the federal government almost unlimited theoretical power due to the huge number of human activities or inactivities that can be made to connect to “commerce…among the several states.”
Indeed, the federal powers theoretically thus granted are so broad that even the United States Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority (1985), conceded that the “principal and basic limit on the federal commerce power is that inherent in all congressional action—the built-in restraints that our system provides through…the political process [that] ensures that laws that unduly burden the States will not be promulgated.”
In effect, the Supreme Court’s position is that, due to the broadness of the clause, the only limit on federal power to regulate anything that relates to interstate commerce is what the public will tolerate at the ballot box, rather than any firm foundational protections.
The Confederate Constitution was much more restrictive. Its authors added a full 88 words to the provision:
“The Congress shall have the Power To…regulate commerce with foreign nations, and among the several States, and with the Indian tribes;” begin both. And then the Confederates add:
“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.”
The difference is self-evident. The Federal Constitution gives the federal government almost unlimited regulatory power. The Confederate Constitution gives the federal government the power to improve navigable waters. Huge swaths of modern policy, including major components of the New Deal, the Civil Rights Act, and the Affordable Care Act, would be unconstitutional in the Confederate framework.
Congress’s “power of the purse” is an essential element of the American system of checks and balances. The power to appropriate money is the federal Congress’s primary strength.
The Confederate Constitution greatly limits this power, establishing that the
“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 departments 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.
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.
Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.”
Again we see an array of firewalls that do not exist in the Federal Constitution. In the Confederate system, the Congress can only make expenditures that are either approved by a supermajority or extremely limited in scope. In either case, the appropriation must be specifically enumerated and limited to one subject area. Omnibus bills and programmatic federal spending would be virtually impossible.
In the Confederate system, the President is also given the power of a line-item veto, further checking Congress’s power to spend. Also, the Post Office is expected to pay for itself.
State Power Tools
The Confederate Constitution is filled with provisions that increase the powers of the states relative to the federal government. In brief:
- State legislatures are empowered to impeach federal officials who operate in their states.
- States have the sole power to pass Constitutional amendments, with no Congressional input required.
- A mere three states may call a constitutional convention, rather than two-thirds, and amendments are passed with a two-thirds rather than three-fourths majority.
- Coastal states are empowered to lay duties on seagoing vessels.
- Federal “bounties” are outlawed, preventing Congressional subsidies for specific industries.
- States are empowered to make treaties governing the use of shared rivers, rather than the federal government.
- The federal government is not empowered to extradite criminals from states to stand trial for federal crimes.
- States are described as “sovereign and independent.”
I entirely reserve value judgement between the two Constitutions. In no way should this article be construed to prefer one over the other. However, it is abundantly clear that the Confederate Constitution did much more than merely protect the institution of slavery, but also made many changes meant to bring the federal government more in line with the Founders’ visions, as the Confederates understood them.
To again quote Davis: “The Constitution formed by our fathers is that of these Confederate States, in their exposition of it, and in the judicial construction it has received, we have a light which reveals its true meaning.”
When we distort the Confederate Constitution, we erase fundamental chapters of American political thought. When we obfuscate and overlook, we lose our credibility. When we fit facts into our preferred narratives, we minimize the sacrifices made on both sides—for Union, for freedom, and for our future.