In 1861 the CSA returned sovereignty to where nature and Nature’s God place it: within the individual person and the polity he and she have decided to belong to. ~ V.M.
“Their revolution (the South in 1861) … was in fact an act of restoration, for the constitution drawn up in Montgomery in 1861 for the Confederate States of America was a virtual duplicate of the United States Constitution.” John McCardell in his Introduction to Jesse T. Carpenter’s “The South as a Conscious Minority, 1789 – 1861”, re-published by the University of South Carolina Press, 1990, p. xiv-xv (emphasis added)
This is a common misperception. The CSA Constitution is not “a virtual duplicate” of the 1787 Constitution. It is a document of greater clarity and stricter understanding. There’s no fabulating. Here’s a list of four (4) major changes:
1. Eliminated ‘dual sovereignty’. No powers were granted to the Central government. Specific powers were delegated.
2. Created a Defined and Unmistakable Federal government.
3. Mandated a solitary 6 year term for the President; gave the President a line item veto; required a mere majority vote in Congress for fiscal spending initiated by the President, but a 2/3’s majority if initiated by Congress.
4. Placed Constitutional amendment conventions entirely in the hands of the States. The Central government had no role but the mandate to issue a call for a convention when 3 of the 7 States had already proposed amendments.
Quite obviously the seceding States created a new declaration of ordered liberty. They forged a Constitution and preserve their beliefs and to harness the wayward inclinations of our political worlds.
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In Justice in Grey, William M. Robinson, Jr., wrote: “The successful working of the dual system (Madison’s ‘dual sovereignty’) depended on the concert and mutual respect of the State and federal governments. When this noble experiment in government was launched in 1789, the world watched with interest and wondered whether human nature would be equal to it.” 1991 Reprint by Wm. W. Gaunt & Sons, Inc., p. 438, original publication, 1941, by Harvard University Press.
Human nature was not. Between 1789 and 1861 the US Constitution became a cudgel splintering on the anvil of human nature. No Founder could foresee the social, political and economic upheavals of the next 70 years: the stunning acquisition of land called the Louisiana Purchase doubling the size of a once small Republic cuddled along the Atlantic seaboard; the explosive value of cotton in the 1800 teens; our Industrial Revolution in the 1820’s; a population growth from 3.9 million in 1790 to 31.5 million in 1860, mostly in the North. Neither Jefferson nor Hamilton believed a Republic could govern so large a landmass and diverse a population. By 1860 Washington was long rutted on the road of Empire where human nature roams by instinct to the acquisition of further wealth and power.
Long before 1860 the South not only saw the dangers to the compact they entered in 1789, but also to their commercial and cultural survival as a society. This intensified in the 1830’s when the South became the whipping child of Northern commercial and moral prejudice. Particularly New England was too busy creating wealth and fostering its ‘city on the hill’ self-adulation to be bothered with local concerns, Southern or Northern. Wealth changes friends and nowhere so quickly as the synergy of wealth and politics.
Our Central government grew like a self-enlarging Hub within the delicately balanced 1787 constitutional wheel. Yearly the Hub became stronger till it likened to a predatory Wheel of Empire with its own instincts for survival. Many, many Americans saw this Hub gave only the illusion of Union.
The CSA Founders returned to the politics of locale where each State grew from its own commonality of culture and shared what it could with other States who did the same. They decided their wealth and political power must return to be wielded only by the States, whether in the South or the North.
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Purposely misread or merely unread, some claim the 1861 war was all about slavery. They have ‘adjudicated’ the CSA a true Slave Republic. Yet the constitutional slavery law of the CSA is the singular area where duplication with 1787 can be argued with great accuracy. For the CSA enunciates what was understood but not written in 1787, especially in three places: 1) the CSA extends the Fugitive Slave Clause to Territories; 2) in the governance of Territories the CSA allows slavery until the Territory becomes a State. The people of that State then choose whether to be a Slave or Free State; 3) the CSA explicitly forbids the Central government interfering with slavery in any State. This last was also the 1861 US Corwin Amendment that Lincoln supported. All three were part of the original, unwritten understanding of the US Founders. A fuller discussion of the Slave Constitutional differences is at https://www.abbevilleinstitute.org/review/slavery-in-the-confederate-constitution/
Until 1865 slavery was in both the South and the North. The difference was where. Everyone knew the whereabouts of the Southern people. They were on the land day to day, their homes and graves easily seen. Both free and enslaved intermingled, at home, in the fields and on the open street. They were intimate and personal and mutual families grew together. The day-to-day mingling in every aspect of human endeavor between white and black people brought about a co-mingled new white and new black people, a singular people the world had not seen before. The South knew this of it sown long before 1787. See The World They Made Together, Black and White Values in Eighteenth Century Virginia by Mechal Sobel, Princeton University Press, Princeton, New Jersey, 1987.
But the North turned its work-a-day heart against this mingling. They practiced a continuing abhorrence toward the union of white and black people, personal, social or commercial. And the international slave trade was far too profitable for the North to give up. “When his classic (W.E.B. DuBois, ‘The Suppression of the African Slave Trade to the United States of America, 1638 – 1870’) was reissued a half-century later, on the eve of the civil rights movement, Du Bois wrote that he wished he’d looked more closely to the economics driving the slave trade rather than the laws governing it. Laws codify morality; economics ignore both.” Farrow, Lang and Frank in Complicity, How the North Promoted, Prolonged and Profited from Slavery, Ballantine Books, 2005, p. 133. (Emphasis added)
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“If anyone is an American, Jefferson is, and if anyone is an American, Lincoln is.” Donald Livingston in A Red and Blue Coalition? October 15, 2018. https://www.abbevilleinstitute.org/blog/a-red-and-blue-coalition/
The defining differences of the CSA Constitution are in the Non-slavery Clauses. Near 40% of the CSA Founders were Unionists. They left in loyalty to the people of their States who had voted for secession. In the court of conscience, the CSA Founders believed in American Constitutional Liberty, that is, Liberty as expressed in the Constitution. Theirs wasn’t some nakedly elemental, profane or overly theological concept of ‘Liberty”. The CSA believed that pursuant to their forefathers’ principles of law and governance, they were writing a Constitution of greater clarity and distinct definition, modernized to correct issues unforeseen in 1787.
The ultimate governmental question is sovereignty: where is it, who wields it, where is it from? This is precisely where the 1787 Founders failed. Ask the kind of government they created and the answers bewilder us. Before the ink was dry the Founders could not agree among themselves. The confusion lies embedded in a befuddled notion of sovereignty.
Enough Founders neglected the siren calls of human nature to invite failure. The Nationalists (Washington, Madison, Hamilton, etc.) wanted a Consolidated government. They cared little for State sovereignty. Many other people (Mason, Patterson, Martin, etc.) were True Federalists. They wanted a federal Republic. Neither side were enough to pull their way. So the Founders called their handiwork “a more perfect Union”, words without legal distinction or definition. But those words had to suffice because 1787 established neither a national nor a federal government, maybe a Republic and not a Democracy.
We daily people were not accustomed to a Central government in our homes and on our streets except the maligned British Monarchy. We felt close to our State governments which daily protected our lives and property. The Founders, attempting to balance their perceived need for a strong central government with the already functioning State governments, wrote a document creating a New American Balance: Ellsworth and Madison’s ‘Dual Sovereignty’. But while ‘dual sovereignty’ may work under an historical monarch, e.g. Great Britain, or under the same God, e.g. the Congregational Church in 1787 Connecticut, it fails without an overarching, supreme power everyone pays homage to.
No one ever argued the State governments lacked sovereignty. Nor did anyone argue the Central government of the Articles of Confederation held sovereignty. Yet the New American Balance was a Central government with its own sovereignty acquired from the States to govern alongside the natural law sovereignty of the States. Neither was to intrude on the other.
This proved too neat for human nature, too illusory a game of ‘Take Away’: grant chunks of sovereignty from the States, especially taxation, and leave some modicum to the States. The game cast the dice of our future and rapidly proved too dicey. The New American Balance could become all you wanted it to become and all you never wanted it to be. It became a creation in dissembling clothes. There lay the mischief of American politics to this day.
~ Prelude ~
February 4, 1861 they convened in Montgomery, Alabama. 7 States argued the CSA Constitution: South Carolina, Florida, Georgia, Alabama, Mississippi and Louisiana with Texas arriving by March 2. A Provisional Constitution was enacted on February 6. Outwardly patterned on much of the US, it had three glaring changes: 1) the Preamble makes clear this is a federal government of Sovereign, Independent States, 2) they invoked ‘the favor of Almighty God’, and 3) they outlawed the Slave Trade absolutely, a first in American Constitutional law.
On March 11 a Permanent Constitution received a unanimous vote and sent to the States to consider. 5 States were needed to begin. On March 26, Mississippi became the 5th State and the CSA was born. The two men chosen to lead the new Republic, Jefferson Davis and Alexander Stephens, had fought and did not approve the secession of their States. That March 26, 1861 there were 7 slave States in the Confederacy and 8 slave States in the United States.
North Carolina, Tennessee, Virginia and Arkansas had voted against secession. They would join the CSA only after Lincoln declared war against the seceded States. The Central government’s aggression against a State, feared by the True Federalists and that Hamilton once derided as unthinkable and could never happen, had begun.
~ The Preambles ~
Preambles are not law. They only introduce the law that follows. They neither delegate nor grant power. Folks who argue that secession was unlawful because the Preamble in the Articles of Confederation claims “a perpetual Union” and the 1787 Preamble claims “a more perfect Union” have misled themselves into believing they are arguing law. They are not. They are arguing what binds no one.
The CSA deleted 4 phrases from the US Preamble:
1) “We, the People of the United States…” Albert Taylor Bledsoe, once a law partner with Lincoln, called these the most fractious and disputed words in the 1787 Constitution. The original 1787 draft listed the people of each State with the clear meaning that the people in each State separately held their own sovereignty. The change to the fabulating phrase “We, the People …” was made by the Style Committee (all Nationalists) with no authority to change substance.
Before the 1787 Convention the Nationalists who pushed for the Convention had decided that addressing the new Constitution to ‘the People of the United States …’ rather than to ‘the People of the States of ….’ was the best way to circumvent every people of every State. Since the phrases sound so poetically similar, the new phrasing could jumpstart the process of consolidating State governments into the new central government. The ambiguity was deliberate.
2) “… a more perfect Union” means only that a ‘Union’ is being formed. It doesn’t denote or explain what kind. ‘Union’ is not a legal term of art. It is a common word taking meaning from the type of ‘union’ described in the same document. But the 1787 Constitution never describes its ‘type of union’ because it never describes the political character of the government it creates. Words like Democracy, Republic, Federal or National are never used. Even the word ‘government’ is never used. Failing to describe its kind of government, the US Constitution becomes a war for identity and definition, an open battleground to harness power. Given human nature, a killing war becomes almost inevitable.
3) “… to provide for the common defense” was deleted because there is no need for it. Article 1.8.1 delegates this power to the legislature.
4) “… to promote the General Welfare…” a phrase from the Articles of Confederation and a long line of same or similar British legal phrases meaning for the betterment of the commonweal. But it is slippery language, mutable as a platitude lending a legitimizing aura for the expansion of taxes and expenses. Money lays the tracks to new fields of power, especially the centralizing proclivities of political parties. This phrase is also deleted from Article 1.8.1 because while a Preamble neither delegates nor grants any power, an Article does.
The CSA added 3 new phrases:
1) “We, the People of the Confederate States, each State acting in its sovereign and independent character,” … An accurate, strictly defined locus of sovereignty. No more fabulating on the most fundamental, foundational issue of government.
2) “… in Order to form a permanent federal government” … No one can misunderstand this declaration. The Central government is to be permanently federal. Neither national nor consolidated government.
3) “… invoking the favor and guidance of Almighty God” … The CSA
Founders acknowledge their peoples constitute a religious country. It is a human prayer for help. They are invoking, as they know their peoples do, their Creator’s guidance in the work of government. They are not establishing a religion. Nor is there any intent to exclude the presence or absence of religion of any sort.
The final CSA Preamble reads: “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 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.”
CSA NON-SLAVE CONSTITUTIONAL CHANGES BY ARTICLE
(The CSA and US Constitutions do not always match numerically Article to Article. The actual numeral is denoted for each Constitution.)
Article I – The Legislature
1.1 CSA: All powers are “delegated” to the Central government.
1.1 US: All powers are “granted” to the Central government.
At law, what is ‘granted’ is gone; what is ‘delegated’ is on a leash and can be taken back at any time, for any reason. Granted powers are to the grantor lost because granted powers embed sovereignty in the recipient. The recipient now owns the granted powers. Therefore, the 1787 Constitution created not only an umbrella Central Government but an entirely New Sovereign Government, a distinct and separate government from the States, one that with the usual behaviours of human nature will engage in conflicts with the States till the country ended in Nationalism.
In contrast, delegated powers create a Central Government on a leash, a true Federal government that precludes the creation of a National, consolidated government. “Dual sovereignty”, the curse of common sense and human pursuits, is gone. Questions of who has power to do what is distinctly settled.
The CSA foundational belief of government is sovereignty resides first within each individual, parcel to our creation by our Creator. It is always personal and must never be yielded nor divided. Sovereignty is the creator of identity. It is independent, raw power: your power to be you, mine to be me and ours to be us. See: https://www.abbevilleinstitute.org/blog/understanding-jefferson-and-sovereignty/
1.2.1 CSA: “… electors (voters) in each State shall be citizens of the Confederate States … 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.”
1.2.1 US: Qualifications for voters were left to the States to decide so long as they were the same for both State and national elections.
The CSA had seen the manipulations of politicians to stuff ballot boxes, especially with new immigrants to America. The CSA was for cultural assimilation before you could vote. An individual must be a citizen of its own State and the Central government to vote.
Some argue this is splitting sovereignty from CSA States. Yet it grants no power to the Central government. Rather it is a vigilant guard against the political greed of professional politicians.
1.2.5 CSA: “The House of Representatives … shall have the sole power of impeachment except 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 (State’s) Legislature …”
US: Does Not Exist
A State’s use of impeachment power against a Central government official residing and acting solely within that State’s borders is a newly expressed American constitutional power. It again demonstrates the CSA honoring the sovereignty of the peoples in every State.
1.6.2 CSA: Congress may pass legislation granting “the principal officer in each executive department” a seat on the floor of both Houses, with the privilege of discussing any measures pertaining to his department.
US: Does Not Exist
A move toward parliamentary government. Pushed by Alexander Stephens and directly taken by him from British parliamentary procedure, Stephens hoped to provide clarity and immediacy to communications between the Executive and Legislative branches.
1.7.2 CSA: The President has Line-item veto in all appropriation bills. A two-thirds vote in both the House and Senate overturns the veto.
US: Does Not Exist
Meant to provide greater accountability from the President and put Congressional spending on a tighter leash.
1.8.1 and 1.8.3 are Anti-Mercantilist Clauses, that is, the CSA was anti-corporate welfare. The US Constitution does not express support or negation of any particular economic policy.
1.8.1 CSA: Congress has power “… to lay and collect taxes, imposts and excises for revenue necessary to pay the debts, provide for the common defense, and carry on the Government of the Confederate States …
US: Does Not Exist
“Revenue necessary” is a limiting clause requiring the government to be frugal and not financially expansive. It heralds financial accountability.
The General Welfare Clause is again eliminated (as in the Preamble) and substituted with “…to carry on the Government of the Confederate States”. The CSA Founders meant to restrain Congress’s urge and imagination for spending to expand and preserve political clout. Hamilton had argued the General Welfare Clause allows the Central Congress to allocate monies to any endeavor they believe is worth the money. For a politician, especially the professionals, that’s Nirvana.
1.8.1 CSA: “… no bounties … shall be granted from the Treasury…”
US: Does Not Exist
No subsidies to special interests, commercial or private.
1.8.1 CSA: No duties or taxes on importations from foreign nations to “promote or foster any branch of industry”.
US: Does Not Exist
Low tariffs are mandatory. No commercial or private protectionism. When the CSA Constitution was broadcast in mid-March, 1861, this was the flare that a Tariff War would begin affecting ports and markets from Boston to New Orleans. Northern newspapers with half an economic brain saw clearly the depressive financial impact this would bring to the North. Once friendly newspapers urging the Republican Party not to wage war, now began to demand invasion.
1.8.3 CSA: “To regulate commerce with foreign nations and among the several States …; 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 along waterways and harbors. Taxes will be laid on businesses using these improvements “to pay costs and expenses”.
1.8 US: Granted Congress power to regulate commerce with foreign nations and among the several States. It did not grant Congress power to finance internal improvements.
A Constitutional command that the CSA Congress and Courts refrain from expansive commercial interpretations. No Corporate welfare. No Internal Improvements except for waterways and harbors but these to be re-paid through taxation on the businesses using the facilities and improvements.
The US Constitutional command is only that the US Congress set regulations for foreign or domestic commerce. There is no command forbidding “internal improvements”. The absence of such a command, left to reside in the memory of the 1787 participants, provided the field for severe contention between North and South from our onset in 1789.
1.8.4 CSA: “To establish … uniform laws of … bankruptcies … but no law of Congress shall discharge any debt contracted before the passage of the same.”
1.8 US: Required uniform laws of bankruptcy but no prohibition against discharge centered on the time a debt is incurred.
The CSA command that discharge of bankruptcies will apply only to debts incurred after passage of the applicable Congressional statutes is new. This makes commercial and governmental contracts more honest: they could depend less on the shield of political favor because no debt can be forgiven retroactively.
1.8.7 USA: “… the expenses of the Post Office Department, after” March 1, 1863 shall be paid out of its own revenues.”
US: Does Not Exist.
Today we may only understand this as a measure to control postal spending. The CSA Founders meant much more. They wanted to be done with the endless funnel of money into the US Post Office to cradle the cost of political and corporate advertisements. It was and is still today common to use Post Office subsidies to lessen the postal cost of business and political activity. As example, in the Georgia Declaration of Secession, January 29, 1861: “These interests, in connection with the commercial and manufacturing classes, have also succeeded, by means of subventions to mail steamers and the reduction in postage, in relieving their business from the payment of about $7,000,000 annually, throwing it upon the public Treasury under the name of postal deficiency.”
1.9.6 CSA: A tax or duty may be laid on exports if two-thirds of both Houses approve.
1.9 US: Explicitly denies power to tax or place a duty on exports.
The CSA adopts Madison’s supermajority proposal on Export Taxation refused by the US Founders in 1787.
1.9.9 CSA: All monies appropriated by Congress shall be by a vote of two-thirds in each House EXCEPT a) if the monies have been requested by the President, b) the Congress is paying its own expenses, or c) the government is paying claims adjudicated against the Confederacy.
US: Does Not Exist. Appropriation bills begin only in Congress and their approval are assumed to be by majority.
While the CSA allowed passage of appropriation bills by majority if offered by the President, it upped the approval barrier for appropriations begun in Congress, a severe restraint on Congress using public monies for private or political gains. This CSA preference for Presidential proposals looks to more effective administration and governmental accountability.
1.9.10 CSA: Appropriation bills must specify its exact amount and purpose. “… no extra compensation to any public contractor, officer, agent or servant after such contract shall have been made or service rendered”.
US: Does Not Exist
The CSA’s continued concern for fiscal responsibility: a constitutional prohibition voiding all Overruns on any Central government contract, whether only just signed, still in progress or the work already completed.
1.9.12 -1.9.19 are the first 8 US amendments, unchanged
1.9.20 CSA: “Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title”.
US: Does Not Exist.
Forbids Omnibus bills. Forbids logrolling. Forbids pork barreling.
Article II – The Executive
2.1.1 CSA: A President shall hold office for one (1) six (6) year term. Not eligible for a 2nd term – ever.
2.1 US: Allows a 4-year term with no prohibition for succeeding terms anytime into the future. For example, Grover Cleveland had two terms but they were not in succession (1885 – 1889 and 1893 – 1897).
Like the US Founders, the CSA loathed party politics. Here the CSA Founders attempted to piecemeal political power so it cannot aggrandize perennially but conform to the changing tide of political opinion. While the term of office was extended, no further term is allowed – ever. The CSA meant to diminish the impact of a President’s political machinery. It is a constitutional move against political parties.
2.1.4 CSA: Someone ineligible to be President is ineligible to be Vice President.
US: Does Not Exist.
The CSA Founders understood that one way to discipline Presidents is to forbid their presence near that office again.
2.2.3 CSA: The President may remove executive department heads and diplomats at will. Other civil officers only when their services are “unnecessary, or for dishonesty, incapacity, inefficiency, misconduct or neglect of duty.” These must be reported to the Senate with explanations.
US: Does Not Exist
A constitutional step toward a Civil Service. Civil Service would not begin in the US until 1883 under President Arthur.
2.2.4 CSA: The President may not appoint anyone to a national position during the Senate’s recess if already rejected by the Senate for that same office.
2.2 US: The President may grant a recess appointment even though the Senate while in session had rejected the appointee.
The CSA change strengthens the control of Congress over Presidential appointments requiring legislative approval.
Article III – The Judiciary
3.1.1: The CSA and the US set up identical constitutional mandates for a Supreme Court and lower Central government courts. But the politics played out differently.
Despite the power to establish a Supreme Court, the CSA never established a Supreme Court. CSA District courts were established within the same geographic boundaries as the US courts had been.. A distrust of courts as undemocratic institutions, rooted in Jefferson’s belief that courts too often were “sappers” usurping power from the people, was too great.
The sticking point was CSA review of State courts, in particular, CSA appellate review of State Supreme Courts. A CSA Supreme Court could easily violate State sovereignty as the US Supreme Court had already.
3.2.1 CSA: The judicial power does not extend to cases in Equity.
3.2.1 US: The judicial power extended to both law and equity.
Equity originated in Church law (Chancery courts) to counter the harshness of civil law. Equity today is most often written into the law statutes themselves and in rules of procedure as extraordinary remedies in particular cases. This merging had begun before 1860.
The CSA Founders understood equity was a way for courts to expand law statutes beyond the intent of a legislature and beyond the wishes of the people. “The Court of Chancery was traditionally a court of conscience, applying principles which were regarded as having an ultimate origin in the law of nature – … In giving wider scope to equitable principles, they were also applying principles of public utility or social policy, founded upon the protection of natural rights”. George W. Keeton in English Law, The Judicial Contribution, David & Charles, Newton Abbot, Great Britain,1974, p. 113. By refusing equity law in the Central government’s courts, the CSA was restricting the already evident power in US courts to do as they thought best for society.
It’s important to realize this CSA mandate did not terminate equity in State courts. Rather the “conscience of the people of a State” was preserved to them. The people of Georgia might not wish what the people of Texas might. The people of a State would decide their conscience before the world and their decision becomes inviolate.
3.2.1 CSA: The CSA judicial power does not extend to a lawsuit between a State and citizens of another State unless a State is the plaintiff …
US: The US judicial power does not extend in any suit in law or equity begun by citizens of another State or subject of a foreign State.
CSA 3.2.1 is an amalgam of US 3.2.1 and the US 11th Amendment. It adds that the CSA courts can hear cases where a State is a plaintiff against an out-of-State defendant. It’s a recognition that States can be prejudiced against outsiders. It was a move to enhance judicial fairness.
Article IV – The States
4.3.1 CSA: “Other States may be admitted into this Confederacy by a vote of 2/3 of the whole House of Representatives and 2/3 of the Senate, the Senate voting by States …”
4.3 US: Does not specify a numerical vote.
The CSA was protecting cultural and economic harmony. It recognized times change and social orders can fluctuate. But it also understood that there must be a protected common ground of culture and centering personal and public courtesies. So the vote to bring a new State into the CSA requires a higher threshold than a mere majority as the US allowed.
Article V – Amendments
5.1.1 CSA: The General Congress on the demand of any three (3) States must summon a Constitutional Convention. The Congress cannot call a Convention on itsown. The Constitutional Convention must vote, one vote for each State, on only the amendments the demanding States sent to Congress. A majority vote sends the amendments to the peoples of the States. Two thirds (2/3) of the States must approve by a majority vote in their legislatures or by their People in Convention, whichever method is required by the Constitutional Convention.
5.0 US: The General Congress must call a Constitutional Convention when two thirds (2/3) of both Houses deem it necessary, or if two-thirds (2/3) of the States call for a Convention. Proposed amendments are made for the first time in the Convention. Amendments are ratified by either a three-fourths (3/4) vote of the legislatures of theStates in the Convention or three-fourths (3/4) vote of States using the People in Convention procedure, whichever mode is approved by the General Legislature.
The CSA requires only 3 States (less than 1/2), not two-thirds of the States, to begin a Constitutional Convention on already specified amendments. The CSA Congress must call for a Convention and the Convention cannot itself bring forth additional amendments. At the Convention a majority vote sends the proposed amendments to the States. Two-thirds of the States must approve for an amendment to become law. Their approval must be by a majority vote in the State legislatures or by the People in Convention whichever procedure the Constitutional Convention calls for.
The CSA Amendment process is far more responsive to the States and is run by the States. It is conducive to relieving problems before they bloom into unbearable and unmanageable crises. It provides a constitutional platform to discuss, argue and solve societal pressures long before they’ve become political monsters.
This is one of two essential changes; the other is the locus of sovereignty.
Article VI – The Confederacy
6.5 CSA: “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.”
6.6 CSA: “The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people thereof.”
These are the US 9th and 10th Amendments with additions shown in emphasis. The additions make explicit, again, that sovereignty resides in the people of each State exclusively – not in an amorphous “We, the People”.
~ SUMMARY ~
To the four (4) differences listed at the beginning of this article, you can now add, among others, that the CSA:
1. Clarifies the Preamble by precisely defining the locus of sovereignty, the type of government and its purpose, and the intentions of the CSA. And, also, it heralds the belief that government is not the work of humanity alone.
2. Requires citizenship in both a person’s State and in everyone’s Central government to vote in any State or national election.
3. Forbids logrolling, pork barreling and omnibus bills. Denies all subsidies to special interests.
4. Mandates the Postal Service become self-sustaining on March 1, 1863.
5. Mandates no taxes to support “any branch of industry.” No Mercantilism. No corporate welfare.
6. Takes an initial step toward parliamentary government by providing a closer interface between the Executive and Legislative branches.
7. Allows each State to impeach any federal officer residing in and exercising federal power solely within the jurisdiction of the State.
8. Allows taxes only for “revenue necessary” expenses. Low tariffs, no internal improvements.
9. Does not allow forgiveness of debt contracted prior to passage of the applicable bankruptcy statute.
10. Taxes exports if two-thirds (2/3) of both Houses approve.
11. Requires appropriations be precise. No extra compensation after a government contract has been signed or service provided.
12. Forbids any recess appointment the Senate has already rejected.
13. Forbids use of equity law by Central government courts, safeguarding the conscience of the people of each State.
Publication of the Permanent Constitution on March 11, 1861 cost the Confederacy the media war. It opened a tumult of Northern financial angst fearing financial doom. Northern industry and newspapers, many which had been sympathetic, now turned against the CSA. Those folks could read a constitution, as so many folks today apparently cannot. They saw instantly that the CSA’s low tariffs would bring a depression across the northern States through the denouement of Northern ports to ocean bound shipping. Every CSA harbor from New Orleans to Charleston would make it certain. The CSA leaders had hoped other States, particularly Southern and Midwestern States, would welcome the clarified self-government expressed in their new charter of ordered liberty and the lower cost of imported goods among the citizenry. But it didn’t matter. The low tariffs were unsettling to industry. Lower costs were months down the road. Folks need security of their persons, homes and enterprises.
The American world had finally lost its footing and so tumbled haphazardly into war. The Confederacy wished no war, was willing to pay any debts they might owe to their former compatriots and negotiate any other issues for a peaceful co-existence. Even further, many across the land knew, including Alexander Stephens and Salmon P. Chase, that secession was the death knell of slavery. The CSA never went to war but responded to war. It never intended to defeat the North. President Davis made certain of that. The CSA wished to be left alone.
Economic strife was not new to America. What was new was the North’s entrenched mercantilism. Corporate welfare wanted to stifle the South’s free trade agrarian policies and, having won the Central government, was prepared to use its power to do it. So Lincoln, always a man of his Party whether the national Whig or the sectional Republican Party, took us to fields of military carnage. He had said he would the day after news of South Carolina’s secession arrived. Confidential Memo to Elihu B. Washburn, dated December 21, 1860, instructing him to tell General Scott to “be as well prepared as he can be to either hold, or retake, the forts as the case may require, at, and after the inauguration.” (Emphases in original) No one today should be surprised Lincoln followed through.
Lincoln was following his deceased idol, Henry Clay’s dictums. (For a quick summary of Clay’s beliefs, see Henry Clay on Secession, article in The New York Times, dated August 11, 1856, publishing a Letter from Clay to Thomas B. Stevenson, dated May 17, 1851, a year before Clay died.) Clay had been against secession for any reason. He labeled it treason and urged military engagement if a State did secede. Clay believed, naively or willfully and Lincoln mutely followed, that a show of military force would quickly end the secession of any State. They were wrong, as has been every politician who blinks blind to the human spirit for self-governance.
But they were not the leaders. Politicians rarely are. It was the bankers and financiers, the bedrock clientele of the Republican Party that Lincoln most feared, the men both Clay and Lincoln spent their lives protecting and enriching. The US commercial leadership needed Southern wealth, the wealthiest section of the country to float their enterprises. Slavery in the territories was a strife-strewn issue because of the muddled way the 1787 Constitution was silent on the issue. But established slavery, anywhere in the US, had little to do with bringing the war, as the Corwin Amendment supported by Lincoln exemplified.
No, it was the economic and political manifestations in the South of a new Constitution that by its very nature put the sectional Republican Party in a death grip. The CSA was a clarification of familiar Constitutional Liberty fused with new Constitutional regimens to insure that liberty. The greatest difference between 1787 and 1861 is that 1787 gave away our individual, personal sovereignty to a newly conceived “Central government” which no person inhabits. No one lives there, works there, raises a family or serves their God there. In 1861 the CSA returned sovereignty to where nature and Nature’s God place it: within the individual person and the polity he and she have decided to belong to.
Written by Vito Mussomeli for The Abbeville Institute ~ March 15, 2019
~ The Author ~
Vito Mussomeli is a retired attorney living in Texas. He has spoken and written extensively on the Confederate Constitution and the Confederate legal system.
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