Continuity in Secession The Case of the Confederate Constitution

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
Another nugget for the grinding mill of this forum.
This analysis is unusual in that it seems to suggest less State Rights for CSA States than other CSA constitutional analysis.

Continuity in Secession: The Case of the Confederate Constitution
CHICAGO
PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 512
CONTINUITY IN SECESSION: THE CASE OF THE CONFEDERATE CONSTITUTION
Alison L. LaCroix
THE LAW SCHOOL
THE UNIVERSITY OF CHICAGO
February 2015
By the outbreak of the Civil War in 1861, the national obsession with identifying
a single true meaning for the federal union constructed by the Constitution had spread to
observers elite and ordinary; northern, southern, eastern, and western; wealthy and poor;
male and female; black and white. Historian Arthur Bestor has argued that the
Constitution was the “channel” through which the many political, economic, social, and
moral controversies of the period flowed, and that the war was therefore a largely
inevitable constitutional crisis.4 This essay argues, however, that constitutional text and
modes of thought were more than a channel that configured other, more foundational
debates. The words of the Constitution, its ways of framing questions, and indeed its
very structure dominated the American consciousness to such a degree that even
secessionists could not escape it. On the contrary, they sought to embrace it.
The best evidence of this Constitution-dominated mindset comes, paradoxically,
from the same individuals who felt they had no choice but to break apart the Union: the
leaders of the Confederate States of America. In March 1861, the first seven states to
secede from the Union adopted a constitution that looked remarkably similar to the U.S.
Constitution, the founding document of the republic from which they had just departed.
Four states (Virginia, Tennessee, North Carolina, and Arkansas) had not yet seceded but
would soon join the Confederacy, over the protests of the Constitutional Union and Whig
parties within each state. So strong was the force of what I have termed the “interbellum
Constitution,”5 then, that it transcended the would-be national boundary created by the
departure of some of its members. Moreover, the authority of the text and structures set
forth in the U.S. Constitution was viewed by many Confederate leaders as controlling,
even as they attempted to launch their new polity.
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
Continuity in Secession: The Case of the Confederate Constitution
The author suggests that prior evaluations of the CSA constitution were flawed. It was doomed by its adherence to slavery and states rights.
My argument thus differs from many other accounts of the Confederate
Constitution. An influential strand of scholarship dating from the early twentieth century
contended that the Confederacy perished in part due to its thoroughgoing legal and
political commitment to the principle of states’ rights, which ultimately undercut its
efforts to prosecute the war.[style color=#0000ff]16[/style] More recent scholars have argued that the Confederate
government became increasingly centralized not because of an affirmative commitment
to strong national power but rather in response to the exigencies of war.17 David Currie
termed the Confederate States of America “a looking-glass variant of the United States
without the North and without Northern ideas.”18 A more recent study describes the
Confederate Constitution as “premised upon principles dating back to the American
Antifederalists of the constitutional convention.”19 The conventional view of the
Confederate Constitution thus emphasizes its role as the legal basis for the rupture of the
Union and depicts it as a poorly executed epigone that was doomed to fail not only by its
commitment to slavery, but by its flawed structure. Such a view places the Confederate
Constitution alongside the Articles of Confederation: bookends to the U.S. Constitution,
one a very rough first draft and the other a failed experiment in variation.

16 See, e.g., Frank L. Owsley, State Rights in the Confederacy 1 (1925) (“If a monument is ever
erected as a symbolical gravestone over the ‘lost cause’ it should have engraved upon it these
words: ‘Died of State Rights.’”).

17See Curtis Arthur Amlund, Federalism in the Southern Confederacy (1966).

18 See Currie, “Through the Looking-Glass,” at 1258. (
THROUGH THE LOOKING-GLASS - Virginia Law Review)

19 Marshall L. DeRosa, The Confederate Constitution of 1861: An Inquiry Into American
Constitutionalism 5 (Columbia: University of Missouri Press, 1991) (“The primary concern of the
Confederate framers was the centralization of political power at the national level to the detriment
of the states; it was this centralization inherent in the political principles of the Federalists which
they rejected.”);

see also Charles Robert Lee, Jr., The Confederate Constitutions (Chapel Hill:
University of North Carolina Press, 1963) (emphasizing the significance of the differences
between the U.S. and Confederate constitutions).
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
OpnCoronet said:
To me, the evidence of the corrupting influence of slavery tainted everything it touched, even the 'glorious' theory of 'state rights'. In the confederacy, the federal gov't would be the guarantor of slavery, Not the states.
Some hold that the Constitution itself marked the end of the Revolutionary War's promise of freedom and equality for the common man and the ascent of the government for the property owner including the slave owner, but also the debt owner, real estate speculator and banker.
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
Of interest is that the Provisional Constitution and the Permanent Constitution had different preambles.
Provisional and permanent constitutions of the Confederate states
Provisional was more stat
We, the Deputies of the Sovereign and Independent States of South Carolina, Georgia, Florida, Alabama, Mississippi, and Louisiana, invoking the favor of Almighty God, do hereby, in behalf of these States, ordain and establish this Constitution for the Provisional Government of the same to continue one year from the inauguration of the President, or until a permanent Constitution or Confederation between the said States shall be put in operation, which soever shall first occur.
Compare to the Permanent version
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, in- sure 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.
Continuity in Secession: The Case of the Confederate Constitution

Interesting question: "Just what type of entity was “the people of the Confederate States” as a whole, if the most important source of sovereignty was in fact the states, each “acting in its sovereign and independent character”?"
The author's answer is
"The Confederate Constitution attempted to meld the longstanding Anglo-American ideology of popular sovereignty35 with compact theory’s view on the states as sovereigns that had joined in a league only for limited purposes.36"

Yet the text of the permanent constitution included some notable changes from that of the provisional constitution. Some of the edits served to harmonize the text more closely with that of the U.S. Constitution. For example, consider the preamble: the provisional version had begun “We, the deputies of the sovereign and independent States,”31 while the permanent preamble spoke of “We, the people of the Confederate States, each State acting in its sovereign and independent character.”32 By removing the “deputies of the states” language, the revised version echoed the preamble of the U.S. Constitution (“We the People of the United States”), with its broad invocation of popular sovereignty,33 rather than leading with a claim about state sovereignty.34 But state sovereignty was nevertheless vital to the revised preamble, and thus to the Confederate constitutional project.

Indeed, the final version of the preamble contained something of a non sequitur: just what type of entity was “the people of the Confederate States” as a whole, if the most important source of sovereignty was in fact the states, each “acting in its sovereign and independent character”? By leaving the relationship between “we the people” and the states in their sovereign character ambiguous, the Confederate Constitution attempted to meld the longstanding Anglo-American ideology of popular sovereignty35 with compact theory’s view on the states as sovereigns that had joined in a league only for limited purposes.36 The nationalistic tones of the former sat uneasily in the preamble with the fissiparous tendencies of the latter. But the rhetorical appeal, and the ideological resonance, of “We the people” formed another node of connection between the federal and the Confederate constitutions.

35 See Morgan, Inventing the People; Bernard Bailyn, The Ideological Origins of the American
Revolution (1967); Wood, Creation of the American Republic.
36 See Alison L. LaCroix, The Ideological Origins of American Federalism (2010) (discussing
the role of compacts and agreements, or foedera, in seventeenth- and eighteenth-century federal thought).
thought).
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
Chasing a leaf.

Judicial Review was selected as one means of keeping the Union intact by the Constitutional Convention.

Note that the CSA rejected national judicial review by not authorizing a CSA Supreme Court following a secessionist idology.
[style size=15px;]The Ideological Origins of American Federalism[/style]
After the end of the Revolutionary War, many, including James
Madison and some of the other framers of the Constitution,
worried that the powers of the central government were so limited
and those of the states so great, that the United States might fall
apart because of centrifugal forces
. Madison believed that such
pressures had undermined previous confederations in Europe
and ancient Greece. His solution to this problem was to give the
central government legislature the power to veto state laws, much
as the Privy Council had done to American colonial laws under the
British Empire. This “federal negative,” however, was rejected by
most of the other members of the Constitutional Convention, who
saw it as a threat to state authority. In this, LaCroix argues, they
were influenced by the earlier abuses of British authority.
Instead, the Convention adopted a system of judicial review,
under which state laws that violated the federal Constitution or
tried to supersede federal law, could be invalidated by federal
courts. The Supremacy Clause of Article VI, which mandates that
federal law takes precedence over state law, was another measure
adopted to constrain states without resorting to a federal negative.

Finally, LaCroix contends that these concerns continued to play
themselves out in the debates over the federal Judiciary Acts of
1789 and 1801, the legislation that established and extended the
lower federal courts. In LaCroix’s view, the confl ict of federal court
jurisdiction became the “defi ning element of American federalism”(p. 179).

Advocates of relatively broad federal government
authority sought wide jurisdiction for the federal courts, so as to
keep states and state courts in check. By contrast, critics feared
that federal jurisdiction would undercut state courts and lead to an
overexpansion of federal power.
The Judiciary Act of 1801, enacted just before Thomas
Jefferson and his Democratic Republican Party took over the
federal government, is often viewed primarily as a partisan ploy
by the defeated Federalists, hoping to consolidate more power
in the hands of a Federalist-dominated judiciary. LaCroix shows,
however, that the Act’s origins predate the Jeffersonian victory in
the election of 1800, and that it was part of a longstanding effort to
extend federal court jurisdiction.
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
1. Both Constitutions tracked the secessionists demand for protection of slavery.
2. The Federal structure of the US constitution was followed oddly enough in light of most secessionist ideology of inherently independent States
3. Of interest that more changes in the Constitution nearest the secessionists resulted in a return to the language of the Necessary and Proper Clause of the U.S. Constitution.

Provisional Constitution
17. To make all laws that shall be necessary and proper for carrying into execution the foregoing powers and all other powers expressly delegated by this Constitution to this Provisional Government
Permanent Constitution.
18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the Confederate States, or in any department or officer thereof.
Both have the open ended Commerce Clause
Provisional
3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes.
Permanent Note the prohibition on internal improvements.
3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes ; 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 for the purpose of furnishing lights, beacons, and buoys, and other aid 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 there-by, as may be necessary to pay the costs and expenses thereof:
Continuity in Secession: The Case of the Confederate Constitution
II. Confederal and Federal Structure.

The Confederate Constitution was manifestly a proslavery document. Slavery was explicitly mentioned in the text, and support of the institution was woven into many provisions.37 This embrace of slavery marked a dramatic difference from the U.S. Constitution, which did not use the terms “slave” or “slavery,”38 although it did provide federal support for slavery in the form of the fugitive slave clause.39
At the structural level, however, the Confederate Constitution copied much of the language of the U.S. Constitution. The relationship between state and confederal power in the Confederacy bore a striking resemblance to the analogous relationship between state and federal power in the Union. Especially in the congressional domain, the documents set forth similar visions of the respective powers of the center and the periphery
Article I of the Confederate Constitution largely tracked Article I of the U.S. Constitution. To be sure, the vote of two-thirds of the Confederate Congress was required to approve appropriations,40 rather than the simple majority required by the U.S. Constitution, and the president possessed a line-item veto over appropriations bills.41 But the Confederate Congress was still vested with the power to regulate commerce “among the several States,”42 as well as the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the Confederate States, or in any department or officer thereof.”43 Indeed, the final draft of the constitution returned to the language of the Necessary and Proper Clause of the U.S. Constitution, rejecting the provisional constitution’s narrower version of that language, which limited the power to “laws that shall be necessary and proper for carrying into execution the foregoing powers and all other powers expressly delegated by this Constitution to this Provisional Government.”44
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
Restrictions on States' Sovereignty show up along with a modified 10th.

Continuity in Secession: The Case of the Confederate Constitution
Moreover, Article I of the Confederate Constitution retained most of its predecessor’s prohibitions on the states, including prohibiting the states from making treaties or alliances, coining money, or levying import or export duties.45 Finally, the language of the Tenth Amendment to the U.S. Constitution was incorporated into the body of the Confederate Constitution, identical but for the addition at the end of the word “thereof”: “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.”46
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
The Confederate Constitutions had a number of restrictions on Congress the US did not. Of interest is the prohibition on internal improvements which which would benefit non cotton constituencies such as manufacturing.
Continuity in Secession: The Case of the Confederate Constitution
For the most part, the Confederate Constitution appeared to rely heavily on a vigorous enumeration principle as a constraint on Congress’s powers. The major exception, besides the prohibition on legislation impairing the property rights of slaveholders, was the commerce power. The Confederate Congress’s power to regulate commerce among the states explicitly excluded the power to fund a program of internal improvements.
[N]either 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 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 the costs and expenses thereof.47
The rejection of congressional power over transportation and navigation was consistent with the southern self-image. In his first inaugural address as president of the provisional government, Davis contrasted the Confederacy – “an agricultural people whose chief interest is export of commodities” and the “freest trade” – with “any manufacturing or navigating community, such as the Northeastern States of the American Union.”48 In addition, the view that Congress lacked constitutional authority to appropriate funds for internal improvements projects had been endorsed by Presidents
Madison and Monroe in previous decades.49 Similarly, the Confederate Constitution confined another concurrent power, the taxing power, to only those levies that were necessary to raise revenue – and, presumably, not those intended as a form of regulation.50 Although both the commerce and the taxing powers were cabined to reflect one side of the debate over the Constitution that had raged since its ratification, the description of the powers replicated the text of the predecessor. The powers remained concurrent, shared between the states and the confederal government, but the document specified substantive limits on their exercise by Congress. At the levels of both the structure of the text and the structure that the text created, there was continuity between the Constitution of 1789 and that of 1861.
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
Summary so far.
The disunion emphasis of the secessionists abates somewhat between the provisional and permanent Constitution. Possibly because fire eater influence wanes.
The 'people' show up in the Permanent Constitution making it somewhat vague about State Sovereignty. In time there would be a conflict of the people and the States had the CSA survived.
Slavery was a big issue. Interfering with it by the CSA was unconstitutional.
Spending Confederate money on any improvements that did not directly help cotton. Harbor improvements for shipping cotton out was explicitly unconstitutional.
A supreme court was constitutional, but never funded.
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
OpnCoronet said:
I think the framers of the confederate Constitution, did fairly well, in straight jacketing the U.S. Constitution into the secessionist mold(to disguise its origins in Medievial European concept of a hierarchical society, fixed by God into preordained social classes.

It seems to me that the two documents flow from two diametrically opposed theoretical bases and thus are essentially antithetical to each other(despite a common language base), i.e., that one was the result of the fact that the States were created by the Union, while the other, by its opposite, that the Union was the result of the States. Much like(but not exactly) the two sides of the argument of whether secession had actually occurred or not, one could not be right, without the other being wrong.
I sort of agree. There were 3 Constitutions to consider. The US, the provisional CSA and the permanent CSA. My view is that the permanent was less secessionist in nature than the provisional and the permanent headed in the direction of the US in many ways outside of hamstringing the federal government in regards to slavery.
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
CW Buff said:
That was the magical effect of the doctrine of secession. The colonists knew they had to band together to win independence (they had already formed a union and fought together for over a year). The secessionists felt they could wave a wand and voila, they were legally independent. In the former case, 13 colonies formed a union and then declared independence. In the later, 7/4 states became independent and then formed/joined a union. Except for that, I think the two documents were very similar. The CSA Constitution would contain some potential, vague indications on the possibility of secession in the future (even more so in its final form than the original form), but nothing that could not later be denied. When unity was needed during the war, it trumped states' rights, even in the CSA.
As an aside. In honor of the 2016 Nobel Prize Oliver Hart and Bengt Holmstrom Win Nobel in Economics for Work on Contracts ()Yes I see secession in everything)

A good rule of thumb is that a mere paper agreement cannot force an unwilling party to perform.

[style size=15px;]Confirmation bias[/style]
[style size=15px;]Confirmation bias[/style], also called confirmatory bias or myside bias, is the tendency to search for, interpret, favor, and recall information in a way that confirms one's preexisting beliefs or hypotheses, while giving disproportionately less consideration to alternative possibilities.[Note 1][1] It is a type of cognitive bias and a systematic error of inductive reasoning. People display this bias when they gather or remember information selectively, or when they interpret it in a biased way. The effect is stronger for emotionally charged issues and for deeply entrenched beliefs. People also tend to interpret ambiguous evidence as supporting their existing position. Biased search, interpretation and memory have been invoked to explain attitude polarization (when a disagreement becomes more extreme even though the different parties are exposed to the same evidence), (when beliefs persist after the evidence for them is shown to be false), the irrational primacy effect (a greater reliance on information encountered early in a series) and (when people falsely perceive an association between two events or situations).

[style size=15px;]Confirmation Bias[/style]
When men wish to construct or support a theory, how they torture facts into their service! (Mackay, 1852/ 1932, p. 552) [style size=15px;]Confirmation bias[/style] is perhaps the best known and most widely accepted notion of inferential error to come out of the literature on human reasoning. (Evans, 1989, p. 41)
[style size=15px;]False Consensus Bias in Contract Interpretation by Lawrence M ...[/style]
Abstract:
Psychologists call the propensity to believe that one's views are the normal views even when they are not false consensus bias. In the interpretation of contracts, false consensus bias should be of special concern when a dispute arises over whether an event fits within contractual language. For psychologists have also found that consensus about category membership dissipates when people are presented with non-paradigmatic cases. We all agree that a table is a piece of furniture, but people hold different views about the status of, say, lamps.
[style size=15px;]False Consensus Bias in Contract Interpretation - BrooklynWorks
Psychologists call the propensity to believe that one's views are the predominant views, when in fact they are not, 'false consensus bias." In the interpretation of contracts, false consensus bias should be of special concern when a dispute arises over whether an event fits within contractual language. I
[/style]
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
OpnCoronet said:
It is true that no matter the safeguards of any kind in any law(s) of man, will not be proof against the mind of man to circumvent(or eliminate) those safeguards, if he so chooses. The confederates, with their experiences in circumventing and/or eliminating the United States Constitution still fresh in their minds would know the dangers very well. the dangers to their own constitution.

I believe, the framers of the confederate constitution, hoped that giving the confederacy a commonality of purpose in preserving their Constitution would eliminate(or at lest weaken)any drive for any sort of emancipation, by the federal gov't guaranteeing the right of slave ownership to every citizen in any state or territory in the confederacy.
Territories yes.
States not so much. Restrictions of slavery were at the national level, forbidding the CSA congress from interfering with slavery. In theory States could be free as long as they recognized other States citizens' rights to own slaves. Exactly how that would work is complicated.

CSA Constitution
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 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 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.

Sec. 2. (I) 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.
As a restriction on CSA Congress.
(4) No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
OpnCoronet said:
I quite agree that a confederate constitution, could not be anti-secessionist, in nature. But, as noted in my post to CW Buff, I believe the framers hoped to unify the confederacy in such a way that emancipation would be unconstitutional under almost any circumstances(at least that was their hope, I believe).

By making their federal gov't the guarantor of every citizen's right to own a slave in any state or Territory of the confederacy, they would establish a commonality of purpose in preserving not only slavery, but also the confederacy.
I think it is more keeping the Feds out of emancipation rather than protecting slavery. State sovereignty implies the right of a State to regulated slavery as it pleases. Making slavery mandatory in the States was discussed during the CSA convention, but was voted down as a violation of State sovereignty. It was brought up in the SC ratification and voted down.

[style size=15px;]Background of the Confederate States Constitution[/style]
Radicals delayed ratification in South Carolina. Robert Barnwell Rhett, Sr., wanted to amend the document to prohibit any free state from entering the Confederacy. But finally, on April 3, South Carolina ratified by a vote of 138 to 21. The negative votes represented not latent Unionist sentiment but the proslavery extremism in the Palmetto State. After ratification the South Carolina convention proposed amendments to eliminate the three-fifths provision and count all slaves for representation; to prohibit free states from joining the Confederacy; to repeal the constitutional prohibition on the slave trade; and to prohibit the government from going into debt, except in the event of war.
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
OpnCoronet said:
Yes, that is the theoretical answer, but what does it say about, any state finding it practical to becoming a free state in a confederacy of slave states, in which every citizen of the confederacy is guaranteed a right to own slaves?
All we have is the theoretical. But note what the CSA constitution says on the matter. This implies that while a State can outlaw slavery, it must respect the right of the citizens of other States. The short version is that travel to a Free CSA State with slaves does not free those slaves as in the Union.
[style size=15px;]ARTICLE IV[/style]

Sec. 2. (I) 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.
Like I said, sometimes I wish Lincoln had held back so we could see exactly how the CSA would have worked.
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
OpnCoronet said:
I dunno, it would seem that their experiences with the Old Constitutional Gov' proved to secessionists that it was not powerful enough.

Was there such a thing a gov't being too strong in protecting the right to own property in slaves?
A slave owner wants a government that:
*  Returns runaway slaves.
*  Legal system supports slavery.
*  Eliminates abolitionists and their literature.
*  Removes all hope of freedom for the slaves.
*  Intimidates slaves.
Anything more than that risks government interference in slavery. In England and France the national government ended slavery. It needs to be at State level at most where the slave owner has control.
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
OpnCoronet said:
jgoodguy said:
A slave owner wants a government that:
*  Returns runaway slaves.
*  Legal system supports slavery.
*  Eliminates abolitionists and their literature.
*  Removes all hope of freedom for the slaves.
*  Intimidates slaves.
Anything more than that risks government interference in slavery. In England and France the national government ended slavery. It needs to be at State level at most where the slave owner has control.
Did they not have all of that (and the FSL) under the old Constitution?

Was not the above list only practicable(i.e., capable of being effective than under the Old Constitution) in a confederation of slave states, where slavery already exists and was recognized as a right of all citizens?
No really. there was 80 years of conflict and compromises over the fear that the national government was going to threaten slavery in some way. The only salvation for slave holders is local government they are in charge of. AKA a State
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
Continuity in Secession: The Case of the Confederate Constitution
Emphasis mine.
The secessionists wanted a legal continuity to the 'original Constitution' as they saw it, interpreted as they saw it and a history as they saw it.
III. Modes of Confederate Constitutional Interpretation.
Despite the Confederacy’s origins in secession and rupture, the guiding principle of constitutional interpretation was one of continuity with the preceding constitutional regime. In public speeches, official records, and private correspondence, Confederate statesmen proclaimed their fidelity to what they argued was the original Constitution of 1789, and to a mode of interpretation that reached back to [style color=#0000ff]their conception of the founding text[/style]. They were acutely aware that the legitimacy of their venture relied on a claim that it was preserving foundational constitutional values. As was the case with other Americans of the early- to mid-nineteenth century, [style color=#0000b3]however, southerners’ persistent invocations of their Revolutionary and founding-era heritage signaled anxiety about their own place in American constitutional time.[/style]51 And it was American constitutional time that most concerned Confederate commentators, even as they proclaimed their right to secede from the United States of America

At the level of interpretation – what Philip Bobbitt has termed “modalities of constitutional argument”52 – Confederate constitutionalism emphasized text, history, and precedent. [style color=#0000b3]The textual commitment was complicated by the fact that there were two key texts: the document of the predecessor polity, and the framing document of the Confederacy.[/style] Indeed, in a further irony, Confederate officials insisted both that they had legally broken away from the United States, and that their constitution was continuous with that of the supposedly broken-away-from regime. They argued that the secession was perfect and complete, but that the structural fundaments of the U.S. Constitution – compact theory, states’ rights, and the enumeration principle – had nevertheless been transmitted across that fissure to the new /QUOTE]
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
OpnCoronet said:
You are right about the 80 yrs experience of the slave holders under the old Constitution, under which only the local gov'ts of the slave holders were in charge(AKA State), was not good enough, i.e., under the original Constitution, local gov'ts(States) were already in charge. Leaving ultimate control exclusively to the states was obviously(in their minds, at least) was obviously not good enough, so they upped the ante and made the federal gov't the final guarantor of slavery itself, i.e., a state might become a free state(eliminate the formal institution of slavery, but it could not eliminate slaves(slavery) within its borders, without permission from the federal gov't?
I do not see anything in the CSA constitution about asking permission of the Federal government. The restriction on slavery is keeping the national government out of interference, not the States. Without a Supreme Court, the litigation and enforcement procedures for
Sec. 2. (I) 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.
is what?
This is Comity. A dispute between States over respecting their rights. In the old republic, a close analogy is the fugitive slave lows. Prigg v. Pennsylvania,
Story's phrase "unless prohibited by state legislation" became the impetus for a number of personal liberty lawsenacted by Pennsylvania and other Northern states. The laws did as the Court had suggested and prohibited state officials from interfering with runaway slaves in any capacity. Runaways could not be caught or incarcerated, cases could not be heard, and no assistance could be offered to those wishing to recapture slaves. The Fugitive Slave Act still stood, but only federal agents could enforce it. This is known as the anti-commandeering doctrine.
If two States disagreed what decides in the absence of a Supreme Court? What gives the CSA federal government the right to intercede?
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
OpnCoronet said:
A secessionist of that time might remember that there was nothing in the US Constitution, that required permission for a state to exercising it right to secede either

It is not beyond the realm of possibility that if such a question (emancipation) between a state and federal gov't, that there would soon be a confederate Supreme Court and until it made a decision on the matter, all action would probably be held in abeyance.
The Confederates were allergic to a Supreme Court because of all the rulings that made the federal government supreme in the old republic. I can imagine the reaction of a proposed Supreme Court to make the federal republic supreme in the new republic.
 

jgoodguy

Webmaster
Staff member
Administrator
Joined
May 12, 2019
Messages
7,115
Reaction score
4,148
Continuity in Secession: The Case of the Confederate Constitution
There would be no Supreme court in the CSA , though in the constitution because of a fear of competition by a number of political forces. State courts as well as Davis and the attorneys general of the CSA and States.

The techniques of Confederate constitutional interpretation emerged from a variety of sources. But the supreme court was not among them, even though the Confederate Constitution appeared to require the court’s establishment.53 The Confederate Congress debated the composition and organization of the supreme court throughout its existence, but the court was never established, in part because of concerns about whether the court would have the power to review the decisions of the state courts.54 Confederate district courts as well as state courts engaged in constitutional interpretation.55 So also did political and legal actors within the Confederate government, notably the president and the attorneys general.56

Again the Confederates maintained that they had the exclusive understanding of the Constitution and their consitution was simply restating and refining what the founders had meant to say, but got lost in the nationalist perversion. This explains the particular view of secessionists and why it is difficult to correlate their view with the US constitution. The constitution in the mind of the secessionists was different than the written version and subsequent SCOUTUS decisions and congressional actions.

The speeches of Confederate president Jefferson Davis repeatedly sounded the theme of constitutional continuity. In his two inaugural addresses, Davis suggested that the Confederacy represented the endpoint of the long founding moment, the redemption of the founders’ Constitution after decades of decline and misuse by a wayward federal government. Indeed, Davis exhibited little of the anxiety about the possible squandering of the founders’ patrimony that had so troubled statesmen of the early nineteenth century such as Lincoln, Joseph Story, and even the elderly James Madison.57 Rather, Davis presented himself and the Confederacy as in direct privity with the founders – and, in particular, with their view of the Constitution’s meaning. In his inaugural address as president of the provisional government, Davis went so far as to suggest that even the variations between the Confederate and U.S. constitutions should be understood as authoritative glosses on what the founders had really meant. The Confederate Constitution “differ[ed] only from that of our fathers in so far as it is explanatory of their well-known intent,” Davis maintained.58



In the notes the Federal Government seems to be struggling to have an identity a separate identify from that of agent of the States. Much of the judicial history of the CSA is simply lost.

54 See Currie, “Through the Looking-Glass,” at 1366 (discussing “the missing Supreme Court”);
White, “Recovering the Legal History of the Confederacy,” at 528 (noting that the debate over
the Confederate Supreme Court “helps capture an endemic feature of the Confederacy itself. It
was constantly struggling to establish its identity as a government that was separate from, as well
as the agent of, the states that formed it.”
).
55 On the Confederate judicial system, see William M. Robinson, Jr., Justice in Grey: A History
of the Judicial System of the Confederate States of America (Cambridge: Harvard University
Press, 1941). On state courts, see J.G. de Roulhac Hamilton, “The State Courts and the
Confederate Constitution,” 4 J. S. Hist. 425 (1938); Jennifer Van Zant, Confederate Conscription
and the North Carolina Supreme Court, 72 North Carolina Historical Review 54 (1995).





57 See LaCroix, “The Lawyer’s Library in the Early American Republic,” in Subversion and
Sympathy: Gender, Law, and the British Novel in the Eighteenth and Nineteenth Centuries,
Martha C. Nussbaum and Alison L. LaCroix eds. (New York: Oxford University Press, 2013)
 
Top