Constitutional Interpretation in the Confederacy: Survival Trumps Consistency
By the end of the Civil War, the Confederate States of America had turned into exactly the sort of centralizing power it had rebelled against. This irony makes a study of the constitution it wrote in reaction to the U.S. version ideal for comparison, according to David Currie, professor of law at the University of Chicago Law School and a noted expert on American constitutional history. Currie delivered the 2002 McCorkle Lecture, "The Constitution in Congress: The Confederate States of America, 1861-1865," in Caplin Pavilion Oct. 21.
With the election of Abraham Lincoln in 1860, the southern states decided they needed "a government of our own" and seceded from the Union, but the constitution they drew up was hardly distinct from the one they rejected.
"The Confederate constitution was a looking glass version of the United States Constitution, without the north and without northern ideas," Currie said.
"The whole Confederacy was unarguably unconstitutional because Article One, Section 10 [of the U.S. Constitution] says no state can enter into a treaty with another state," Currie said. "The U.S. Constitution is not a contract you can get out of over a material breech," which was the attitude people had had about the collapsed Articles of Confederation.
On the point about whether the framers intended secession to be possible, Currie observed that "in the constitutional convention, James Madison argued that the document should not be ratified by state legislatures but by state conventions of citizens in order that no one would later be able to secede." To oversimplify the matter, Currie said as a digression, "Virginia did not secede over slavery as the cotton states did, but over states rights, over being asked to provide its militia to force the return of South Carolina to the Union."
In most respects the Confederate constitution was "a carbon copy of the U.S. Constitution," he said. "It's very odd that states driven to the extremity of succession adopt the same language they are rebelling against. So, it's not that they objected to a strong central government, they just wanted to run it for themselves.
"Jefferson Davis said that the South did not object to the Constitution, but to the way it had been 'perverted by northern interpretation'. [The Confederates] said they wanted to go back to their original interpretation and they want to prevent wrong interpretations from recurring."
The explicit changes the Confederacy added, Currie said, were to say, yes, there is the power to tax, but not the power to impose protective tariffs. Furthermore, there is the power to regulate commerce but not the power to promote commerce. There is no power to ban slavery or interfere with it, only to regulate it.
"These changes dealt with symptoms and not the disease," he said.
Confederates added a couple of novel elements, for instance, that the government had the power to tax in order to raise money to support itself. Before, that purpose had been described as for the "promotion of the general welfare."
Within two months of forming a government, the Confederacy found itself at war and most of the constitutional issues that arose were related to the military context, said Currie.
The Confederate constitutional crises seemed to start with its creation. Because the rebel constitution invested war-making powers in the Confederate congress, wasn't the governor of South Carolina really the only authority able to order the attack on Fort Sumter? Jefferson's Davis' order to attack Sumter and another Federal fort in Florida, it was later discovered, was authorized by a secret law passed by the Richmond congress.
The Confederate government's resort to conscription after efforts to raise an army by other means were unsuccessful was another questionable act. When the matter of the constitutionality of the draft was raised to him, Davis retorted, "the [government's] right need only be stated to be admitted," said Currie, adding a chuckle. He paraphrased that statement's meaning to be: "This is an emergency. In emergencies we disregard the constitution."
Before the war, Southerners had been worried about the "necessary and proper" clause because they thought that if the clause allowed Congress to build roads it could also free slaves. Hence they watched it warily. Conscription raised the same constitutional questions. "Some argued that only states had the right to force men into the army," Currie said. "But if it was OK for a state, then why not for the central government?"
The draft was ruled to exempt state political officers because to conscript them would destroy the representative character of the state and thus the legitimacy of the state itself.
Faced with a chronic manpower shortage, the Confederacy accepted the draft a year before the North did.
Before Lincoln made the Emancipation Proclamation, even northern Republicans said the government had no right to free slaves, Currie noted. But as the South sank exhausted to its knees, Davis proposed drafting slaves, who to that point had worked in the army but not fought in it. The idea of arming slaves exploded the raison d'etre of the Confederacy. Davis elaborated that soldiers should not be slaves and that the government should buy slaves and offer them freedom as an incentive to enlist. By the time Davis made his eleventh-hour proposal, his reasoning was "better emancipation than subjugation." The Confederacy was willing to give up the things it had seceded in order to preserve, Currie said. "This says something profound about the dynamics of preserving powers in a time of war."
Confederates ultimately also accepted the government's right to condemn property and to build railroads, two things they could not tolerate in earlier northern interpretations of the U.S. Constitution. Confederates tried but failed to prescribe what crops could be planted and even suspended habeas corpus, a prisoner's right to challenge the legal basis for his being held.
When the last Confederate army in the field, Joseph Johnston's ragged remnants in North Carolina, surrendered to U.S. General William Sherman, Jefferson Davis asked Confederate Attorney General George Davis' opinion on whether he should ratify the capitulation agreement. Davis answered, "desperate circumstances override constitutional questions." And that, said Currie, summarizes the history of Confederate constitutional interpretation.
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