Continuity in Secession The Case of the Confederate Constitution

[jgoodguy]

The impulses of the secessionists made it hard to form a government. On one hand collective effort was needed to have an effective government. On the other hand the ideology of States Rights made giving that government any power difficult. Perhaps it seemed so easy to form a government is motivation and failure of secessionists.

[style size=18px;]Recovering the Legal History of the Confederacy[/style]

Given the choice of alternatives Garland and Yancey posed, the Confederate Congress elected not to organize a supreme court.402 Its members would surely have done so eventually had the Confederate States of America remained in existence, but whether that court would have had the power to review decisions of the highest courts of states, and whether, if it did not, it would have been a tribunal of any significance in the legal and political history of the Confederacy, are questions whose answers cannot easily be extrapolated from Congress’s consideration of the court between early 1862 and the winter of 1864. All that one can say, after examining the debates about the court in Congress, is that the very secessionist arguments that had inspired states to leave the Union were proving troublesome to the formation of institutions in the Confederacy that sought to represent the interests of those states as a collective body.

However much as those who championed secession sought to identify that cause with the liberties of people residing in individual states, they were well aware that states seceding from one union needed to join together for some purposes: They needed the protection of a federal government, with a federal constitution and federal institutions such as courts. It seemed an easy step, in fact, for those who drafted the provisional and permanent Confederate constitutions to create a supreme court. But when it came to allowing that court power to review the decisions of the highest state courts in the Confederacy, the Confederate Congress balked because of the logic of their own states’ rights arguments.

If a nation makes a Supreme court capable of overriding a State court, it means that State is no longer a fully sovereign entity. There is a "tension between the role of the Confederacy as a national government and the conception of it as an agent of secessionist"

Thus the debate over a 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. Although the Confederate Constitution explicitly identified its "federal" powers—such as declaring war, raisingand supporting an army and a navy, laying and collecting taxes, engaging in foreign relations, and regulating commerce between the states—state concerns constantly shadowed those powers.403 It was as if, having conceded that some federal powers were necessary for any sovereign nation, those who formed the Confederacy continued to seek reassurance that those powers were being exercised with the states’ interests in mind.

When Yancey argued that the Supreme Court of the Confederacy’s reversal of a decision of a state court on a constitutional issue was tantamount to "the sovereignty—the reserved rights of the States" being made "to yield to the decision of five office holders of the Confederate Government," [style color=#0000b3]he revealed that he could not countenance the idea of the states and the Confederacy as fully separate sovereigns.404[/style] Yet for the Confederacy to act effectively as a representative of the collective interests of the states who seceded from the Union, it needed to exercise sovereign powers that were not merely extensions of state power. As we will see, that tension between the role of the Confederacy as a national government and the conception of it as an agent of secessionist

 

[jgoodguy]

Recovering the Legal History of the Confederacy
More secessionist ideology.
It was not really a revolution. By thoroughgoing continuity with the American Revolution, there was no way that the Confederates had revolted. The key evidence that there was no revolution is that the internal government of a State had not changed, only the alliance of the State changed. Compact theory dictated that the States were sovereign. "
establishing the continuity of the states as independent juridical entities was essential to legitimizing the structure of the Confederacy as the true inheritor of the Constitution. "

Related to these assertions of a deeply conservative constitutional ideology was the rejection by Davis and others of the term “revolution.” Only “by abuse of language” had the actions of the sovereign states that constituted the Confederacy “been denominated a revolution,” Davis insisted in his first inaugural address.59 On this view, the secession movement’s continuity with the Revolution was so thoroughgoing that breaking away from the Union could not possibly be conceived as a revolution. The desire to identify with the founders evidently did not extent to embracing their revolutionary fervor. Yet Davis’s point went deeper than categories alone. His key evidence against the “revolution” label was that the internal law of the seceded states had not changed as a result of their departure from the Union. “They formed a new alliance, but within each State its government has remained; so that the rights of person and property have not been disturbed,” Davis stated.60 Given the Confederate position that each state had been a sovereign entity before joining the Union, and that some vital quantum of that sovereignty had been retained throughout the intervening decades, the argument that the states’ internal legal and political status had not changed as a result of secession was a powerful one. State sovereignty was the crucial component of a confederation built on a compact among its members. Therefore, establishing the continuity of the states as independent juridical entities was essential to legitimizing the structure of the Confederacy as the true inheritor of the Constitution.

As long as the states’ internal structure remained stable, Davis argued, the overarching government that acted on their behalf was of secondary importance. The integrity of the state as a unitary sovereign was what mattered; the external league that the states created to deal with a small set of international issues was merely a thin canopy of narrowly cabined powers. “The agent through which they communicated with foreign nations is changed, but this does not necessarily interrupt their international relations,” Davis maintained.61 The Confederacy had “assumed” a position “among the nations of the earth”62 – an unmistakable echo of the language of the Declaration of Independence.63 But Davis declined to apply the revolutionary, nation-announcing elements Declaration to his own project of establishing the Confederacy.64

 

[jgoodguy]

In the CSA constitution interpretation followed US law except where it was rejected-slavery and federal control over the States. The CSA incorporated US law except where it differed. We see the claim that the CSA Constitution was the light that illuminated the original intent of the founders.
Continuity in Secession: The Case of the Confederate Constitution

Even if one accepted the argument that the southern states were continuous political entities from the founding period through their secession, the relationship between their old and new agents required a theory of constitutional interpretation. The question of how, if at all, the U.S. Constitution applied to the new Confederate regime drew commentary from Davis, a series of Confederate attorneys general, and even the Confederacy’s founding convention at Montgomery.

The predominant mode of constitutional interpretation in the Confederacy was to incorporate U.S. law into the new regime, except where it had been specifically rejected. This absorption of what secession advocates insisted was the prior legal regime into the new regime extended even to statutes. The Montgomery Convention provided that all laws of the United States carried over to become laws of the Confederacy unless superseded by the Confederate Congress.65 Davis made an even stronger claim of continuity in his inaugural address: “We have changed the constituent parts, but not the system of government. The Constitution framed by our fathers is that of these Confederate States. In their exposition of it, and in the judicial construction it has received, we have a light which reveals its true meaning.”66

Here we see the deep claim of continuity that lay at the core of Confederate constitutional interpretation. Confederate commentators were determined to attach themselves to the text of the U.S. Constitution, but they went even further by adopting the constructions that the U.S. Supreme Court had put on that text over the past seven decades. Indeed, as Davis’s comments suggest, Confederate constitutionalism proceeded from three premises: first, that the U.S. Constitution had a true meaning; second, that the founders’ intentions should govern that meaning; and third and most important, that “[t]he Constitution framed by our fathers is that of these Confederate States.” Both the Constitution and the constitutional law (to paraphrase Justice Felix Frankfurter67) of the United States were thus binding on the Confederacy, despite southerners’ insistence that secession had formally split the two regimes. The judicial constructions of John Marshall and Joseph Story, as well as Roger Taney, “instructed” Confederate statesmen “as to the true meaning and just interpretation of that instrument,” the U.S. Constitution. And the Constitution of 1789 was that of the Confederate States, and vice versa.

 

[jgoodguy]

Continuity in Secession: The Case of the Confederate Constitution

In the CSA one group that replaced the CSA Supreme Court was the attorneys generals of the States who interpretated the CSA constitution. One thing not mentioned was that it was incredibly easy to simply adopt US code instead of creating and learning a new code.
Confederate commentators, especially the attorneys general,68 embraced the idea that Confederate constitutional law essentially picked up where U.S. doctrine had left off. They viewed themselves as engaging in intertemporal constitutional interpretation, but their constitutional landscape included two texts. Moreover, the second text – the Confederate Constitution – was seen as both the perfection of the first, and as largely derivative of it. Most striking was the wholesale adoption of the decisions of the U.S. Supreme Court at least as useful guides, and at most as binding precedent, for Confederate constitutional interpreters. The decision to absorb rather than reject U.S. case might appear sensible after the fact, given our knowledge that the Confederate Supreme Court was never established. But in 1861, it was not at all clear that the new polity would never have a confederal-level constitutional arbiter. On the contrary, given the similarity between the relevant provisions of the Confederate and U.S. Constitutions, and the growth of judicial supremacy during the early nineteenth century, contemporaries might well have assumed that the Confederate Supreme Court would be a robust body producing the very type of distinctly southern, state-sovereignty-respecting species of decisions that critics of the U.S. Supreme Court had always faulted it for rejecting.69

 

[jgoodguy]

Continuity in Secession: The Case of the Confederate Constitution
IV. Conclusion. Examining the Confederate Constitution demonstrates the degree to which nineteenth-century Americans were constitution worshipers – not only the U.S. Constitution, but constitutions in general. The Confederate Constitution was similar to the U.S. Constitution because the Confederate Constitution stood for the assertion that its text was the correct reading of the previous document. Potential textual loci of nationalism such as the Supremacy Clause and the Necessary and Proper Clause endured as reflections of the view that President Andrew Jackson’s insistence on the supremacy of federal law in the face of South Carolina’s nullification, or Chief Justice John Marshall’s endorsement of Congress’s power to establish a bank, were mistaken interpretations, not problems with the text itself. The constitution drafted by Americans who broke away from the United States is, paradoxically, the best possible evidence of nineteenth-century Americans’ conviction that the U.S. Constitution offered the essential tools to structure a compound federal, or indeed confederal, republic.

 

[jgoodguy]

CW Buff said:
I think they took the original model, preserved and added to the powers of the fed to protect slavery, and eliminated any federal powers to interfere with slavery. Their idea of the perfect federal government. As far as the power of a state to ban slavery, they were more between a rock and a hard place there. After preaching states' rights they couldn't give the fed the power to prevent a state from going free (at least most of the Confederate founders couldn't see doing that). I don't think the CSA could have prevented a state from going free, either legally (states' rights) or practically (more than likely, it would be a border state that would do so, where there was a lower % slave owners, and if they got to coercive, such a state could just flip into the USA). And as long as they gave slavery a leg up in any territory, there was little chance of free states cropping up that way either (plus, they could limit themselves to territory that was highly conducive to plantation agriculture, which would help prevent anything like Kansas from happening). It would be a system where slave holders dominated in the fed, all or at least virtually all of the states, and any likely territory. Pro-slavery, no questions asked.

There worst fears were realized during the Civil War when the national government wanted to impress slaves for construction work then soldiers. Once the national government claims controls over slaves, who knows where that ends.

 

[jgoodguy]

OpnCoronet said:
All of that is true enough, but, I think it too analytical and precise, to what was more likely to happen in a revolutionary state, where, after a successful overthrow of a gov't, there is a counter revolution to purge, the gov't and sources of political power of those less committed to the principles of the Revolution.

The arch secessionist and upholder of slavery as the cornerstone of A confederacy of slave states, Leonaidas Spratt, predicted that after the South seceded successfully, there would have to be a reckoning with those having abolitionist tendencies, he saw infecting the border states and in that respect, I believe, it would be unlikely that the confederate federal gov't(under the Constitution) would Not be leading the way.

Technically, in the letter of the Law, emancipation by states might be possible, with great difficulty(as it was to get adequate protection for slavery under the Old Constitution) emancipate. But, I think that very difficulty, would almost certainly lead to secession and CW.

Practically speaking there was a counter revolution as the secessionists and fire eaters lost out to the career politicians running the CSA. I have no clue how a Free State could practically exist in the CSA. The debate over allowing Free States in the CSA occurred a time when the founding fathers of the CSA figured the CSA was so wonderful that States would be lining up to join. So the law follows that anticipation. It appears to me that interfering in the internal affairs of a State and emancipation are going to be problematical in the political life of the CSA.

 

[5fish]

John Stuart Mills case against the secession....

https://capitalismmagazine.com/2020/01/john-stuart-mill-slavery-civil-war/

Southern Secession and Anti-Slavery Morality
Mill turned his gaze to the conflict in America between the Northern and Southern states and showed the same sympathies in two essays published in 1862, “The Contest in America” and “The Slave Power,” the latter being a detailed and highly complimentary review of his fellow British classical economist, John E. Cairnes’s, The Slave Power: Its Character, Career and Probable Designs (1862).

The first of the two essays is an appeal to the highest values of a belief in freedom and human dignity among the British people to not allow resentments, angers, and disapproval of various aspects in the American character, plus recent political disputes between the British and Union governments, to result in formal recognition or international support to the southern Confederate government.

At least strict neutrality should be the hallmark of British political policy so as to not tilt the balance in favor of a Southern victory. But Mill was strident that morally the attitude should be to wish to see the defeat of the Southern rebellion, for that was the only position “which becomes a people who are as sincere enemies of slavery as the English really are, and [who] have made as great sacrifices to put an end to it where they could.”

In Mill’s eyes, the Southern secession had little or nothing to do with free trade versus protectionism or the use of tariff revenues collected from southern states for “internal improvements” to advance the development of the northern or western states.

It was pure and simply the preservation of a slave culture and slave society in the South from the loss of access to the “territories” not yet organized as states within the union for slave expansion, and a fear that if new states were admitted in the future to the union as “free” states, it would mean the death knell to slave-state influence and “balance” in the two Houses of Congress over time.

Secession Unjustified When Meant to Enslave Some
“Secession,” Mill said, “may be laudable, and so may any other kind of insurrection, but it may also be an enormous crime” when its purpose is the preservation of holding a portion of their population in perpetual bondage. If secession was meant to be an expression of the will of the people, “Have the slaves been consulted? Has their will been counted as any part in the estimate of collective volition? They are a part of the population . . . Remember, we consider them to be human beings, entitled to human rights.” And he was greatly pleased when at last in 1865, and “at the expense of the best blood of the Free States, but to their immeasurable elevation in mental and moral worth, the curse of slavery has been cast out from the great American republic . . .”

For Mill, eliminating the scourge of slavery as a moral blight on humanity, far more than its economic disadvantages in that in general slave labor is less productive than free labor, is what justified his ethical support for the Northern cause even when it involved abuses and overreaches beyond the actual powers assigned the Union government under the U.S. Constitution.

In the heated and sometimes angry exchanges over the history of slavery and the place of liberalism in the great contest between freedom and bondage in the 19th century, we should appreciate how determined, dedicated, and publicly demanding were many of those classical liberal thinkers in Europe and the United States in their call for an end to the institution of slavery.

Indeed, the classical liberal premise that each individual is a distinct and unique human being, possessing and deserving of the human right to his life and liberty, and that all human relationships should be based on voluntary consent and mutual agreement, were powerful ideas undergirding the case for ending America’s “peculiar institution.” And John Stuart Mill was one of those reasoning voices insisting on its end.

 

[TomEvans]

John Stuart Mills case against the secession....

https://capitalismmagazine.com/2020/01/john-stuart-mill-slavery-civil-war/

Southern Secession and Anti-Slavery Morality
Mill turned his gaze to the conflict in America between the Northern and Southern states and showed the same sympathies in two essays published in 1862, “The Contest in America” and “The Slave Power,” the latter being a detailed and highly complimentary review of his fellow British classical economist, John E. Cairnes’s, The Slave Power: Its Character, Career and Probable Designs (1862).

The first of the two essays is an appeal to the highest values of a belief in freedom and human dignity among the British people to not allow resentments, angers, and disapproval of various aspects in the American character, plus recent political disputes between the British and Union governments, to result in formal recognition or international support to the southern Confederate government.

At least strict neutrality should be the hallmark of British political policy so as to not tilt the balance in favor of a Southern victory. But Mill was strident that morally the attitude should be to wish to see the defeat of the Southern rebellion, for that was the only position “which becomes a people who are as sincere enemies of slavery as the English really are, and [who] have made as great sacrifices to put an end to it where they could.”

In Mill’s eyes, the Southern secession had little or nothing to do with free trade versus protectionism or the use of tariff revenues collected from southern states for “internal improvements” to advance the development of the northern or western states.

It was pure and simply the preservation of a slave culture and slave society in the South from the loss of access to the “territories” not yet organized as states within the union for slave expansion, and a fear that if new states were admitted in the future to the union as “free” states, it would mean the death knell to slave-state influence and “balance” in the two Houses of Congress over time.

Secession Unjustified When Meant to Enslave Some
“Secession,” Mill said, “may be laudable, and so may any other kind of insurrection, but it may also be an enormous crime” when its purpose is the preservation of holding a portion of their population in perpetual bondage. If secession was meant to be an expression of the will of the people, “Have the slaves been consulted? Has their will been counted as any part in the estimate of collective volition? They are a part of the population . . . Remember, we consider them to be human beings, entitled to human rights.” And he was greatly pleased when at last in 1865, and “at the expense of the best blood of the Free States, but to their immeasurable elevation in mental and moral worth, the curse of slavery has been cast out from the great American republic . . .”

For Mill, eliminating the scourge of slavery as a moral blight on humanity, far more than its economic disadvantages in that in general slave labor is less productive than free labor, is what justified his ethical support for the Northern cause even when it involved abuses and overreaches beyond the actual powers assigned the Union government under the U.S. Constitution.

In the heated and sometimes angry exchanges over the history of slavery and the place of liberalism in the great contest between freedom and bondage in the 19th century, we should appreciate how determined, dedicated, and publicly demanding were many of those classical liberal thinkers in Europe and the United States in their call for an end to the institution of slavery.

Indeed, the classical liberal premise that each individual is a distinct and unique human being, possessing and deserving of the human right to his life and liberty, and that all human relationships should be based on voluntary consent and mutual agreement, were powerful ideas undergirding the case for ending America’s “peculiar institution.” And John Stuart Mill was one of those reasoning voices insisting on its end.

And how did John Stuart Mill deal with the legal problem, regarding the US government's claim that the states formed a national union in 1776; when in reality the states had NO political superior-- and therefore the states never consented to a national union, and neither did their respective electorates under the Constitution?

I bet he just ignored it, like all the rest.

 

[jgoodguy]

And how did John Stuart Mill deal with the legal problem, regarding the US government's claim that the states formed a national union in 1776; when in reality the states had NO political superior-- and therefore the states never consented to a national union, and neither did their respective electorates under the Constitution?

I bet he just ignored it, like all the rest.

The CSA put the question of secessions to a test of war and lost. The post war legislation and legal framework just codified it The failure of CSA arms moots all other arguments. The furling of the battle flags in defeat ended the question. The 'Secesh' could have put the question to the courts or Congress but chose not to. We must respect the 'Secesh' decision even if it did not work as they intended.

 

[TomEvans]

The CSA put the question of secessions to a test of war and lost.

De facto only.

The 1861–1865 actions constituted an illegitimate self-coup, enforcing a false perpetual union; thus the military enforcement and Reconstruction occupation did not "legally change" state sovereignty (as no superior national authority legitimately existed to do so). Rather, it imposed de facto control through hostile occupation, suppressing the sovereign status of the states by force while retroactively denying their independence under a fabricated legal narrative. The states' de jure national sovereignty remained intact in principle but was overridden by conquest, with occupation serving as the mechanism to enforce the illegitimate consolidation.

So under the international law hierarchy, the states remain separate de jure popularly-sovereign nations; not a single national union that's supremely ruled by government officials, which is purely de facto and thus superseded.

Under simple historical fact, the American people, operating as the respective people within each state, did not consent to form a national union.
The historical facts demonstrate that:
• The U.S. Constitution became operational through the approval of state ratifying conventions, representing only nine of the thirteen states, bypassing the unanimous consent mechanism of the Articles of Confederation.
• The legal status of the states as individual "free, sovereign and independent States," established by the 1783 Treaty of Paris under international law, was never explicitly revoked by the people themselves through direct universal assent.

Therefore, the claim that the people of the states consented to form a national union, is not supported by these historical facts.

 

[jgoodguy]

De facto only.

That means in fact. As the victors established de jure status based on the defeat of the secessionists, any future discussion is moot.

 

[TomEvans]

That means in fact. As the victors established de jure status based on the defeat of the secessionists, any future discussion is moot.

It doesn't work that way.

Under the international law hierarchy, EVERY state remains a fully de jure sovereign nation-- and under the supreme national authority of its respective electorate.

That's why Hitler didn't get to keep Poland, Hirohito didn't get to keep China, and Saddam Hussein didn't get to keep Kuwait.

I already provided the legal facts.

 

[jgoodguy]

It doesn't work that way.

Under the international law hierarchy, EVERY state remains a fully de jure sovereign nation-- and under the supreme national authority of its respective electorate.

That's why Hitler didn't get to keep Poland, Hirohito didn't get to keep China, and Saddam Hussein didn't get to keep Kuwait.

I already provided the legal facts.

There was no electorate in any of those examples.

 

[TomEvans]

There was no electorate in any of those examples.

I'm afraid to ask, what you think that has to do with anything.

However Hussein and Hitler were indeed elected party-officials.

 

[jgoodguy]

I'm afraid to ask, what you think that has to do with anything.

However Hussein and Hitler were indeed elected party-officials.

I'm afraid to ask, what you think that has to do with anything.

However Hussein and Hitler were indeed elected party-officials.

After they took power, there was no electorate especially during the invasions.

 

[TomEvans]

After they took power, there was no electorate especially during the invasions.

The Nazi Party gained power through a series of electoral successes, culminating in Hitler's appointment as Chancellor in 1933; and he did not ILLEGALLY SEIZE power as did Lincoln; he assumed it LEGALLY through the German Emergency Powers Act (since Germany REALLY WAS a de jure sovereign nation).

And are you saying that it's okay for ELECTED leaders to invade and conquer sovereign nations, as long as they achieve de facto national sovereignty, it becomes de jure?

Because you're wrong about THAT, too.

 

[jgoodguy]

The Nazi Party gained power through a series of electoral successes, culminating in Hitler's appointment as Chancellor in 1933; and he did not ILLEGALLY SEIZE power as did Lincoln; he assumed it LEGALLY through the German Emergency Powers Act (since Germany REALLY WAS a de jure sovereign nation).

And are you saying that it's okay for ELECTED leaders to invade and conquer sovereign nations, as long as they achieve de facto national sovereignty, it becomes de jure?

Because you're wrong about THAT, too.

Might make Right, all else is details.

 

[TomEvans]

Might make Right, all else is details.

Not under the international law hierarchy, which is globally recognized as supreme over domestic de facto law.

Just like it didn't matter that Germany was mightier than Poland, or that Japan was mightier than China, or the Iraq was mightier than Kuwait.

Again: the 1861–1865 actions constituted an illegitimate self-coup enforcing a false perpetual union—the military enforcement and Reconstruction occupation did not "legally change" state sovereignty (as no superior national authority legitimately existed to do so).

Rather, it imposed de facto control through hostile occupation, suppressing the sovereign status of the states by force while retroactively denying their independence under a fabricated legal narrative.

Therefore under the hierarchy of international law; each state's DE JURE national sovereignty remained intact in principle-- but was simply overridden by conquest, with occupation serving as the mechanism to enforce the illegitimate consolidation.

So every state remains a de jure sovereign nation.

It doesn't matter if it was carried out for 160 years. The original good-faith agreement was for separate sovereign nations, each supremely ruled by its respective electorate; and they never consented to form a national union of a single de jure sovereign nation, which was supremely ruled by government officials.

 

[jgoodguy]

Therefore under the hierarchy of international law; each state's DE JURE national sovereignty remained intact in principle-- but was simply overridden by conquest, with occupation serving as the mechanism to enforce the illegitimate consolidation.

Exactly. De facto overrides de jure until a more powerful international polity implements a restoration de jure via a de facto conquest.