What Did the Confederacy’s Constitution Actually Say?
There was one particular right they didn’t want states to have.
When I was a kid in New Jersey, my class learned that the Civil War was about slavery. But then when I moved to Virginia, opinions varied.
I understand the argument that the typical Confederate soldier on the front lines probably wasn’t thinking too much about slavery one way or another. He might even have personally opposed it and saw himself as just defending his home. That may be, but the Confederacy’s political class took legal measures to preserve slavery. And they baked those measures right into their constitution.
The Yale Law School’s website reproduces the text of the Constitution of the Confederate States, as adopted on March 11, 1861. The school also has the U.S. Constitution here.
Much of the Confederate Constitution resembles the U.S. Constitution with various tweaks.
I won’t do full a blow-by-blow comparison, but here’s our preamble in the U.S. Constitution:
We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The Confederates kicked off their Constitution with this:
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 tranquillity [sic], 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.
It interjects some lip service to states’ rights, and it removes common defense and general welfare. It throws God into the mix as well. But the Confederates aren’t reinventing the wheel here.
In modern terms, they copied the file of the original Constitution and its seven articles, made sure tracking changes were turned off, fiddled with the text here and there, and then passed it off as their own.
They stuck with the same three branches of government, including a bicameral legislature with these two houses called the “House of Representatives” and the “Senate.” However, they did introduce a notable change to Article II, which covers the executive branch. Their president’s term was set at six years, and the president “shall not be reeligible.”
This was before the United States limited presidents to two terms. At this point, stopping at two terms was merely a tradition established by George Washington. Codifying the spirit of that tradition seems like a valid choice, as we eventually did too. Whether a single six-year term or up to two four-year terms is better could make an interesting debate topic.
But I can’t be so charitable about other additions. The Confederates explicitly mentioned slavery multiple times throughout the document.
They did prohibit the slave trade from bringing more slaves into the country, but don’t mistake their motives for anything enlightened. Slave owners had a vested interest in making sure the population of slaves didn’t grow too rapidly, which could have fueled a potentially overwhelming rebellion.
Article I, Section 9 also states:
No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.
The Confederate Congress could not outlaw slavery at the federal level. But does that mean they were just kicking the question to the states? Reading further, it becomes increasingly hard to give them that benefit of the doubt. (And even that alone still would have been terrible.)
Article IV, Section 2 states:
The citizens of each State shall be entitled to all the privileges and immunities of citizens in 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.
This article and section of the U.S. Constitution merely says, “The Citizens of each state shall be entitled to all privileges and immunities of Citizens in the several states.” So, the Confederate framers flipped some capitalization and then tacked on another protection of slavery.
The Confederates’ Article IV continues:
No slave or other person held to service or labor in any State or Territory of the Confederate States, under the laws thereof, escaping or 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 whom such slave belongs,. [sic] or to whom such service or labor may be due.
Our Constitution had a similar clause in the same spot: “No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.” [italics used on the website]
The 13th Amendment nullifies this clause. Note that the Confederate version shamelessly uses the word “slave” twice whereas the American version merely alluded to slavery.
But maybe the Confederates merely wanted to protect existing slavery. Perhaps they were willing to let each new state decide the slavery question for itself. That would have suited the states’ rights cause, wouldn’t it?
No. One more section further protects slavery, and it’s the most egregious yet (emphasis mine):
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 Sates; 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 be [sic] Congress and by the Territorial government; and the inhabitants of the several Confederate 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.
It’s possible this applied only to territories and that any new state could choose to outlaw slavery among its own citizens. Even if that was the intent, each new state would have started with legalized slavery and would have gotten used to it, making it that much harder to change course later.
But even if a state succeeded in outlawing slavery, it couldn’t bar Confederate citizens of other states from visiting and bringing their own slaves along, nor would a free Confederate state have been allowed to grant asylum to any runaway slave seeking his or her freedom. The Confederate Constitution firmly sided with the slaveholders, as we’ve seen above.
By contrast, the U.S. Constitution adopted the 13th Amendment in 1865, and it states:
1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
2. Congress shall have power to enforce this article by appropriate legislation.
That’s all that any constitution should need to say about such an objective evil.