Yesterday, February 7, was the 150th anniversary of the signing of the provisional Confederate constitution, the founding document of the Confederate States of America. In a post for the New York Times' "Disunion" blog, John L. Miller, author and writer for the National Review, compares the document to the United States Constitution, emphasizing what he considers the improvements that the former document made over the latter, notably the creation of a single, six-year term for the president and granting the president a line-item veto power. Aside from these differences, the Confederate constitution, Miller reminds us, was essentially identical to the venerable document that it copied, right down to its preamble, which declared "we the people of the Confederate states... establish justice, insure domestic tranquility, and secure the blessings of liberty to ourselves and our posterity," by establishing this constitution.
The only problem with Miller's analysis is that he's comparing the wrong documents. The preamble he cites comes from the permanent Confederate constitution, adopted on 11 March 1861, not the provisional constitution that was adopted by a Confederate convention 150 years ago yesterday. The provisional constitution had been written hastily with the full knowledge of its authors that it subsequently would be superseded by a permanent constitution. The purpose of this initial instrument was to create a political and legal framework for the creation of the newborn Confederacy and legitimize its authority. The provisional constitution specifically converted the Confederate convention that conceived it into a national legislature, enabling it to pass necessary laws to conduct the business of the new nation while it simultaneously crafted a more detailed, permanent constitution to be its true founding document. While both Confederate constitutions were nearly identical, there were some notable and interesting differences between the two documents, however, and those differences revealed that the Confederacy's representatives already were beginning to argue over such issues as the source of sovereignty and the extent of federal powers in the new nation.
In place of "we the people," the preamble of the provisional constitution announced that "we the deputies of the sovereign and independent states" ordained this revolutionary government. This phrasing hearkened back to a concept popularized by John C. Calhoun that sovereignty under the U.S. Constitution had resided with the individual states that were a party to it, not the people as a united body. This concept was at the foundation of the theory of states' rights, particularly the alleged rights to nullify federal laws or secede from the union. Unionists, both North and South, had countered that sovereignty rested in the people, disavowing the power of state governments to abrogate federal law or sunder the union.
The preamble of the subsequent, permanent constitution sought to reconcile these dueling views of sovereignty, declaring that "the people of the Confederate States, each state acting in its sovereign and independent character," were the founders of this new republic. The confused pairing of popular and state sovereignty here reminds us that the Confederate constitutions were not simply a slavish copy of the U.S. Constitution, nor a reaffirmation of a mythical constitutional consensus. Rather, they were the result of intense ideological differences and political conflict and comprise (much like the original Constitution).
In his comparison, Miller takes the Confederacy's defense of slavery as another example of constitutional consensus and focuses instead on the novel ways in which its founding document empowered both the executive and legislative branches to limit each other's power. Yet, just how the Confederacy would protect property rights in slaves still was the subject of considerable debate in February and March of 1861. The provisional document contained only two clauses relating to slavery, one prohibiting importation of slaves from Africa or the slave states of the U.S., and another requiring that fugitive slaves escaping from one state into another be delivered up on the claim of their owners. Leonidas Spratt, editor of the Charleston Mercury, considered the ban on the African slave trade a betrayal of the principles of the secession movement, and he feared that it threatened to leave the glorious revolution of the slave states of the Deep South stillborn. He envisioned the slow decline of slavery in the Confederacy's border states, leading to the inevitable emergence of the same kind of debilitating abolition movement that had so vexed southern secessionists for the last few decades.
To Spratt's chagrin, however, the slave trade prohibition later was retained in the permanent constitution. Still, in an attempt to mollify the editor and his ilk, that document further safeguarded slave property with a clause stipulating that no laws could be passed that would impair "the right of property in negro slaves." The successive Confederate constitutions might very well have found novel ways to improve the checks on both the legislative and executive branches as Mr. Miller contends. More importantly, however, the authors of these seminal documents found it much more difficult to achieve consensus on how to improve federal protections of slavery itself. In that regard, the Confederate constitutions did not merely tweak their U.S. predecessor. Instead they resulted from serious debates over the very nature of republican government in a slaveholding nation.
@Disunion
The only problem with Miller's analysis is that he's comparing the wrong documents. The preamble he cites comes from the permanent Confederate constitution, adopted on 11 March 1861, not the provisional constitution that was adopted by a Confederate convention 150 years ago yesterday. The provisional constitution had been written hastily with the full knowledge of its authors that it subsequently would be superseded by a permanent constitution. The purpose of this initial instrument was to create a political and legal framework for the creation of the newborn Confederacy and legitimize its authority. The provisional constitution specifically converted the Confederate convention that conceived it into a national legislature, enabling it to pass necessary laws to conduct the business of the new nation while it simultaneously crafted a more detailed, permanent constitution to be its true founding document. While both Confederate constitutions were nearly identical, there were some notable and interesting differences between the two documents, however, and those differences revealed that the Confederacy's representatives already were beginning to argue over such issues as the source of sovereignty and the extent of federal powers in the new nation.
In place of "we the people," the preamble of the provisional constitution announced that "we the deputies of the sovereign and independent states" ordained this revolutionary government. This phrasing hearkened back to a concept popularized by John C. Calhoun that sovereignty under the U.S. Constitution had resided with the individual states that were a party to it, not the people as a united body. This concept was at the foundation of the theory of states' rights, particularly the alleged rights to nullify federal laws or secede from the union. Unionists, both North and South, had countered that sovereignty rested in the people, disavowing the power of state governments to abrogate federal law or sunder the union.
The preamble of the subsequent, permanent constitution sought to reconcile these dueling views of sovereignty, declaring that "the people of the Confederate States, each state acting in its sovereign and independent character," were the founders of this new republic. The confused pairing of popular and state sovereignty here reminds us that the Confederate constitutions were not simply a slavish copy of the U.S. Constitution, nor a reaffirmation of a mythical constitutional consensus. Rather, they were the result of intense ideological differences and political conflict and comprise (much like the original Constitution).
In his comparison, Miller takes the Confederacy's defense of slavery as another example of constitutional consensus and focuses instead on the novel ways in which its founding document empowered both the executive and legislative branches to limit each other's power. Yet, just how the Confederacy would protect property rights in slaves still was the subject of considerable debate in February and March of 1861. The provisional document contained only two clauses relating to slavery, one prohibiting importation of slaves from Africa or the slave states of the U.S., and another requiring that fugitive slaves escaping from one state into another be delivered up on the claim of their owners. Leonidas Spratt, editor of the Charleston Mercury, considered the ban on the African slave trade a betrayal of the principles of the secession movement, and he feared that it threatened to leave the glorious revolution of the slave states of the Deep South stillborn. He envisioned the slow decline of slavery in the Confederacy's border states, leading to the inevitable emergence of the same kind of debilitating abolition movement that had so vexed southern secessionists for the last few decades.
To Spratt's chagrin, however, the slave trade prohibition later was retained in the permanent constitution. Still, in an attempt to mollify the editor and his ilk, that document further safeguarded slave property with a clause stipulating that no laws could be passed that would impair "the right of property in negro slaves." The successive Confederate constitutions might very well have found novel ways to improve the checks on both the legislative and executive branches as Mr. Miller contends. More importantly, however, the authors of these seminal documents found it much more difficult to achieve consensus on how to improve federal protections of slavery itself. In that regard, the Confederate constitutions did not merely tweak their U.S. predecessor. Instead they resulted from serious debates over the very nature of republican government in a slaveholding nation.
@Disunion
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