My interest it less in reprinting the Confederate States Constitution (CSC) than in illustrating the differences between it and the US Constitution (USC). This was the model they followed, after all.
We the people of the United Confederate States, each state acting in its sovereign and independent character, in order to form a more perfect Union permanent government, establish justice, insure domestic tranquility, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity -- invoking the blessings of Almighty God -- do ordain and establish this Constitution for the United Confederate States of America.
This is how I'm going to proceed, italicizing the parts omitted and putting the new parts in bold. After this, however, I'm not going to note that "Confederate States" replaces "United States." You already knew that. I've already ignored a place where the Confederates omitted one of the capitalizations in the original that offend the modern eye. I'll print the parts that are in common only when they are necessary for context.
What does this preamble tell us?
1) They emphasized states' rights.
2)The replacement of "more perfect Union" with "permanent government" sounds to us like 'The Union' was already being used to designate the forces in blue. More likely, however, was that they were conscious of the context of the original Constitution. It replaced the Articles of Confederation, which had established a Union which the founding fathers regarded as quite imperfect.
3) They omitted "general welfare" which had been cited for 'internal improvements' a point of contention between the Whigs and the Democrats; the South generally opposed internal improvements.
4) They overtly invoked God.
Much more after the jump.
Sec. 2 (1) The House of Representatives ... states; and the electors in each state shall be citizens of the Confederate States, and have the qualifications requisite for electors of the most numerous branch of the state legislature; but no person of foreign birth, not a citizen of the Confederate States, shall be allowed to vote for any officer, civil or political, State or Federal.
Without guidance, it's hard to tell whether this rule was intended against Irish and German immigrants, or against people born in the north. It's notable, however, that they made no constitutional effort to forbid free Blacks from voting. Merely writing "white citizens" where they wrote "citizens" would have been sufficient. Maybe they couldn't conceive of the idea.
Article 1 (cont.)
Sec. 2 continued
(2)No person shall be a representative who shall not have obtained the age of twenty-five years, and been seven years a citizen of the United States shall be a citizen of the Confederate States,, and shall not, when elected, be an inhabitant of that state in which he shall be chosen.
(3)Representatives and direct taxes shall be apportioned among the states which may be included within this Confederacy according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound for a term of years, and excluding Indians not taxed, three fifths of all other persons slaves. The ... direct. The number of representatives shall not exceed one for every thirty fifty thousand, but each state shall have at least one Representative; and until such enumeration shall be made, the state of South Carolina shall be entitled to choose six, the state of Georgia ten, the state of Alabama nine, the state of Florida two, the state of Mississippi seven, the state of Louisiana six, and the state of Texas six.
Okay. They keep the 60% rule, and they're not squeamish about the word "slave." They keep the rule on direct taxes, although no direct taxes had been laid since the Articles of Confederation were replaced. They increase the minimum number of population that one congressman can represent, but they decrease the actual number that their congressmen represent. The total number of congressmen from those states are 10 more than they were in the US congress elected in 1860 (which, remember, was based on the census of 1850):
South Carolina - 6 - 6
Georgia - 8 - 10
Florida - 1 - 2
Alabama - 6 - 9
Mississippi - 5 - 7
Louisiana - 4 - 6
Texas - 2 - 6
The only state which does not increase its allotment is South Carolina.
Sec. 2 continued
(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 official 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.
More power to the states. Note, however, that the trial of impeachment is still in the Confederate Senate.
(3)No person shall be a Senator; who shall not have attained the age of thirty years, and been nine years be a citizen of the Confederate States, and who shall not, when elected, be a citizen of the state for which he shall be chosen.
Maybe this change is simply because the CSA was too new. It duplicates one for the House. The phrasing, with a double negative which could be interpreted as becoming a single negative on the citizenship part, was copied over from the USC; you'd think that someone would have cleaned it up.
(1)The times, places, and manners of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof, subject to the provisions of this Constitution; but the Congress may, at any time, by law, make or alter such regulations, except as to the times and places of choosing Senators.
(2)No Senator or Representative ... any civil office ... no person holding any office under the Confederate States shall be a member of either House during his continuance in office. But Congress may, by law, grant the senior officer of any department a seat upon the floor of either House for the purpose of discussing any measure appertaining to his department.
Since the Senators were elected by the legislatures at this time, The USC merely said that Congress might not require the legislature of any state to meet -- to elect a senator -- at a place other than which it selected for itself. The CSC adds that it can't be required to meet at a time not of its choosing.
Giving Cabinet secretaries voice, but not vote, on the floor of Congress was an innovation, and one of several tending to increase the power of the executive.
(1)All bills for raising revenue...
(2)[Provisions for signing, vetoing, and pocket vetoing legislation.] 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.
The line-item veto. This was another example of strengthening the executive power.
Sec. 8 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 general welfare, 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.
Okay, this is major shift. Besides slavery, the sections had two other major areas of disagreement, the protective tariff and "internal improvements." The latter was federal support for such things as canals, roads and navigational easing. This is -- or was -- interpreted as providing for the general welfare. Although the protective tariff was first proposed by Henry Clay of Kentucky, it became the bane of the South. Southern planters exported cotton to Europe and imported much of their consumer goods from there.
The usual reading of this section of the USC is that Congress has the power to (1) Lay taxes, (2) Pay debts, etc. Another reading is possible. Congress has the power to lay taxes (in order) to (1) Pay debts, (2) Provide for the common defense, etc. That is the position that the CSC took.
Sec. 8, continued
(3)To regulate commerce with foreign nations, among the several states, and with the Indian tribes: but neither this nor any other clause contained in the Constitution shall be construed to delegate the power to Congress to appropriate money for any internal improvements 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 for the costs and expenses thereof.
(The punctuation is in my source. I'm typing this in by hand -- copying it -- but don't blame me for weird punctuation before you check some source for the CSC.)
Internal improvements again. I note in passing that Section 8 (1) calls for all duties to be uniform throughout the country and section 8 (3) calls for special duties on any commerce facilitated by any federally-supported expenditure. This is a clear contradiction.
Sec. 8, continued
(4) To establish uniform laws of naturalization and uniform laws of bankruptcies throughout the Confederate States, but no law of Congress shall discharge any debt contracted before passage of the same.
Okay, I'm puzzled. My picture is that the planter class dominated the Confederate government, and that planters were much more often debtors than creditors. Yet this passage exempts from bankruptcy protection debts contracted before the Confederate Congress gets around to passing a bankruptcy bill.
Sec. 8, continued
(7)To establish post offices and post roads. routes; but the expenses of the Post-Office department after the first day of March in the year of our Lord eighteen hundred and sixty three, shall be paid out of its own revenues.
(8) - (18)
The Post Office had to pay for itself. And, under the difficulties that runaway inflation imposed, it managed to do so.
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.
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.
(2)Congress shall also have power to prohibit the introduction of slaves from any State not belonging to and any Territory not belonging to, this Confederacy.
Soon after it became constitutionally possible, the US Congress did pass a law banning the importation of slaves. Soon thereafter, the international slave trade was banned by the European powers. A good fraction of the British Navy in 1861 was stationed off the coast of Africa enforcing that ban. The American Navy searched American ships to see that they weren't carrying slaves, and British ships searched every other nation's ships to enforce the same rule.
A ban on the importation of slaves obviously benefitted those who wanted to sell slaves. Probably, however, the reason for the Confederate constitutional ban had more to do with the relations with Britain than with domestic complications. The Confederacy was hoping, rather unrealistically, for aid from France and Britain. Permitting the slave trade while the British were enforcing a ban on it would be too close to a declaration of war.
This article was controversial in the Confederacy, though.
At the time the CSC was passed, MO, AR, KY, TN, NC, VA, MD, and DE were all slave states still in the Union -- one more than had seceded. The threat of cutting off the slave trade with them might later have brought them over the line. Probably this was the reason for the provision allowing Congress to cut them off. How realistic a hope it was, is another matter. Not even Buchanan was willing to wave bye-bye to the states which seceded, and Lincoln was to be inaugurated days after the CSC was signed. The idea that later states could secede peacefully enough to make it look attractive was a delusion.
Sec. 9 cont.
(4)No bill of attainder, or ex post facto law, or law impairing the right of property in negro slaves shall be passed.
The writers took every opportunity they could to insert the slavery issue into their constitution. By 1865, Davis was sending secret emissaries to Britain and France to see if they would give aid on the condition of emancipation -- they said it was much too late.
Sec. 9 cont.
(6)No tax or duty shall be laid on articles exported from any State, except by a vote of two thirds of both houses.
(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 departments, and submitted to Congress by the President; or for the purposes 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 is hereby made the duty of Congress to establish.
(10) All bills appropriating money shall specify in federal currency the exact amount of each appropriation and the purpose 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.
6 is a loophole, and I don't quite understand it. Were they considering an export tax on cotton?
9 is another strengthening of the executive. A simple majority could pass appropriations the administration asked for. A supermajority was required for earmarks.
I don't know what past US abuse or foreseen CSA abuse (10) was trying to prevent.
Sec. 9 cont.
Amendments 1 - 8 of the US Constitution, respectively.
(20) Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.
[Which means that the 9th and 10th amendments are left to article 6 of the Confederate Constitution. The 12th amendment -- changing the manner of election of the president and vice president -- are folded into Article 2, and I don't bother to sort that out. The 11th amendment, denying authority of the federal courts to hear a case against a state, seems to be omitted. There were only 12 amendments to the USC until after the Civil War.]
(20) seems to be a reform, and a good one IMHO.
(3)No state shall, without the consent of Congress, lay any duty on tonnage, except for sea-going vessels, for the improvement of its rivers and harbors navigated by 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 improvements, be paid into the common treasury; nor ... peace, enter into any agreement with another state or with a foreign power, or ... 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.
It's the states' responsibility to do internal improvements to foster navigation.
Sec. 1 The executive power shall be invested in a President of the Confederate States of America. He shall hold the office for four years, and together with the Vice President chosen for the same term be elected as follows: He and the Vice President shall hold office for the term of six years; but the President shall not be reeligible. The President and the Vice President shall be elected as follows:
(2) - (4) Choosing the president and VP, follows the USC as amended in Amendment 12.
A six year term without reelection. This sounds very Mexican to me. Anyone know if there was influence either way?
Sec. 1 continued.
No person except a natural-born citizen of the Confederate States or a citizen thereof at the time of the adoption of this Constitution, or a citizen thereof born in the United States prior to the 20th of December, 1860, shall be eligible to the office of president; neither shall any person be eligible to that office who has not attained the age of thirty-five years, and been fourteen years a resident within the United States the limits of the Confederate States, as they may exist at the time of his election.
They were trying to deal with the complexities of their situation. I don't think they did a very good job. A Pennsylvanian who threw his lot in with the Confederacy -- like Gorgas, who contributed more to the survival of the Confederacy than any other man -- could run for the presidency. A child born in North Carolina between the secession of South Carolina -- the December 20 mentioned -- and the secession of North Carolina -- May 20, 1861 -- never could. And residence in Maryland or Kentucky for the year 1858 would have delayed one's eligibility for a decade. It was, after all, moot, but you don't create a constitution thinking, "Never mind; this country isn't going to last long enough for a second presidential election, anyhow."
Sec. 1 continued.
(3) The principal officer in each of the executive departments, and all persons connected to the diplomatic service, may be removed from office at the pleasure of the President. All other civil officers of the Executive Departments may be removed at any time by the President or other appointing power, when their services are unnecessary, or for dishonesty, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons thereof.
So the president or a cabinet secretary had to give reasons for firing underlings. That was a formal limitation of the executive power in a document which mostly increases it.
My source gives the first section of identical with the first section of the USC. It then trails off in an ellipsis. ("....") I take that to mean that the other two sections are also in the CSC, are also identical, and that, therefore, Thomas doesn't bother to print them.
(1) The citizens of each state shall be entitled to all the privileges and immunities of the citizens of 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.
(3)No slave or other person held to service or labor in one state any State or Territory of the Confederate States, under the laws thereof, escaping or [un]lawfully carried into another, shall, in consequence of any law or regulation therein be discharged from such service or labor; but shall be delivered up on claim of the party to which such slave belongs or to whom such service or labor may be due.
(1)New states may be admitted by Congress into this Union: 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 may be erected within the jurisdiction of any other State; nor any State 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 Congress.
(2)The Congress shall have power to dispose of and make all needful rules and regulations concerning the respecting the territory or other property belonging to the United States of the Confederate States, including the lands thereof. ; and nothing in this Constitution shall be construed as to Prejudice any Claims of the United States or of any particular State.
(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 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.
Section 3 (1) and (2) [and a bit of (4) I don't reprint] clean up the language of the US Constitution without trying to change the meaning.
Some of the rest of the changes are refighting the Dred Scott case.
Section 2 (1) Even if a state abolishes slavery, or a state which has already abolished slavery is admitted to the Confederacy [a possibility which was actually considered in the heady first days], then a slave owner had the inherent right to take his slaves into that state.
Section 3 (3) While states may abolish slavery in the limited sense mentioned above, territories may not, nor may Congress abolish slavery in a territory.
In passing, we might ask where the CSA thought it would get territory. Even assuming secession succeeded, the new nation would border two nations, the USA and Mexico. "You don't have enough troops to occupy us, so you'd better just let us go;" is one argument. "And, while you're about it, give us this area that you haven't settled yet;" is quite another. Transfer of US territory doesn't look likely. One of the Confederacy's targets for foreign relations was Mexico. (The Confederate coast was blockaded and the border with the US was supposed to be closed. The only place through which they could import goods without danger of seizure was Mexico.) Somehow, with this provision in the Constitution and with the Confederacy formed in horrified response to having a US president who'd voted against war with Mexico as a congressman, they had little success with the Mexican Republic. They had more success with the French-Maximilian Empire.
The part of the US Constitution reflected in Section 3 (3) deliberately covers both slaves and fleeing apprentices and indentured servants. While indenture [by which a person went in thrall for a number of years of labor to pay his passage to this country] was obsolescent by 1861, apprenticeship was still common. The Confederate Constitution was careful to treat those two cases separately, although the provision still had the same effect.
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or on the Application of the Legislatures of two thirds of the several states, shall call a Convention for proposing amendments, which in either case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several Sates, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment that may be made prior to the Year One Thousand Eight Hundred and Eight shall in any Manner affect the first and fourth clauses of the Ninth Section of the First Article: and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Upon the demand of any three States, legally assembled in their several Conventions, the Congress shall summon a Convention of all the States, to take into consideration such amendments to the Constitution as the said States shall concur in suggesting at the time such demand is made; and should any of the proposed amendments to the Constitution be agreed on by the said Convention -- voting by states -- and the same be ratified by the Legislatures of two-thirds thereof -- as the one or the other mode of ratification may be proposed by the general Convention -- they shall henceforward form part of this Constitution. But no State shall, without its consent, be deprived of its equal representation in the Senate.
This is quite a new method of amendment. Congress has no say. Any 3 states -- and remember that this was less than half the seven states already in the Confederacy, a fifth of the US slave states -- could call conventions. If those 3 states agree on a proposed amendment (or agree on several proposed amendments), then it is sent to a general convention which votes by states. If the delegates of a majority of the states agree, the amendment is sent to the state legislatures, of which 2/3 must agree -- as opposed to 3/4 in the USC.
There is no place for Congress to propose amendments, but there is also not the possibility of "fruit basket upset" of a new Constitutional Convention as in the USC. The general convention considers the amendments proposed by all 3 of the state conventions. And this means, since there is no mechanism provided for passing wording back and forth as the two chambers of Congress do, that some group goes into this process with their wording already in final form and proposes it.
The time-bound prohibitions in the USC were that you couldn't prohibit the slave trade before 1808 and no direct taxes.
I have only one source for the CSC. Unless Thomas has miscopied something, the "the one or the other mode of ratification" language in the CSC was meaningless in the CSC copied over from the USC where it is meaningful.
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 remain in force until the same shall be repealed or modified; and all the officers appointed by the same shall remain in force until their successors are appointed or the offices are abolished.
5. [USC 9th amendment] The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people of the several States.
6. [USC 10th amendment]
The predecessor of the USC were the Articles of Confederation, under which the USA operated for quite a few years. The predecessor of the Confederate Congress was the Provisional Congress which was at once:
A Congress passing laws,
A Constitutional convention writing this document, (indeed, before writing this document, the same people had written a provisional constitution which called for them to be a provisional congress) and
An Electoral College choosing the provisional president and Vice President of the Confederacy. The last task involved a good deal of haggling, but the choices, Jefferson Davis and Alexander Stephens, became the permanent administration without opposition.
With this lesser legitimacy, or less obvious legitimacy, than the government under the Articles of Confederation had, the Provisional Congress wrote the legitimacy of their actions into the first section. The USC merely mentioned debts and engagements.
I'm printing the actual Confederate ratification rules, but omitting the USC provisions. The basic needs were the same as for the USC, but the situation was significantly different.
1. -- The ratifications of the conventions of five States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.
2. When five States shall have ratified this Constitution in the manner before specified, the Congress, under the provisional Constitution, shall specify 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.
Adopted unanimously by the Congress of the Confederate States of South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas, sitting in convention in the capitol in the city of Montgomery Alabama, on the Eleventh day of March, in the year Eighteen Hundred and Sixty-One.
My only source for the CSC is:
Thomas, Emory M.
The Confederate Nation 1861 - 1865
New American Nation Series (Edited by Henry Steele Commager & Richard B. Morris)
Harper & Row
In contrast, possible sources for the USC are too numerous to mention. My actual source was the Illinois Handbook of Government for the years 2009 - 2010.
Information Please out of all the possible sources, may be the one which is easiest to find, but -- if you don't have a copy of the Constitution about your house -- visit your local library and ask the librarian.
A personal note:
I have a replacement hip that has become infected. I shall have preliminary minor surgery on Wednesday and surgery two weeks later which will probably replace that hip with a third one with special antibiotic properties.
Since I post from the library instead of home, I expect to be off the Internet for something like 6 months. I may be able to post once or twice more before the surgery, but I won't post another diary to the Civil War Roundtable.
There have been many well-informed comments on my posts, and I recommend that some of you post your own material. When I get back I'll be looking for them.