Continuity in Secession The Case of the Confederate Constitution

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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
 

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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
 

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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.
 

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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
 

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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.
 

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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.
 

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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.
 
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