From the 2003 Abbeville Institute Summer School
I come from a somewhat different mold and my thought processes on these issues have changed a bit over the last couple of years. I have written on American jurisprudence and I have detected what I would deem to be ominous trends in American case law, and also in international law. I also have been involved and participated in a forthcoming book on the European Union, which just simply heightened my concerns about what’s happening not only nationally, but internationally, and this sounds far-fetched, but those of you familiar with some of the rhetoric from the left can appreciate it. I’m not making this up. But, intellectuals, academics, policy makers who discuss these issues at the national level have a very different worldview – so much so that I deem that nationalism is the States’ Rights position of the 21st century. In other words, nation states are under threat. Not only have States’ Rights been crushed, but national rights are in the process of being crushed. I know that there’s a lot of hostility and animosity against our current president, but I’m much more charitable to his position because I see the dynamics at the global level and the rhetoric, the language, the vocabulary at the international level. And I shouldn’t even use the word “international” because the words “national” and “international” are both going out of fashion. We have to think in terms of globalism. Nation-states are becoming sort of obsolete in the way policy is evolving. So, I’m going to make a presentation that’s somewhat prospective, not only retrospective, even though that’s an important starting point. And that’s why the Confederate Constitution is important, because the framers of the Confederate Constitution, believe it or not, anticipated these trends. They were very much familiar with them. They didn’t necessarily articulate the concerns that I’m about to raise, but intuitively they knew something was up with this notion of centralization. So, think of “the human family,” think of globalism, and try to think of President Bush as Governor Bush, the governor of a large State, the United States, and Kofi Annan as President Lincoln, if you’d like, but definitely as the president of, or the administrator of this global organization. I mean, some of it seems to be far-fetched, but when they talk about “the human family,” they mean what they say. And they’re very familiar with technology and the impact of technology in changing the world. You could read people discussing, anticipating, promoting, (under the radar screen, but nevertheless, they’re very much behind it), the notion of “the human family” that takes on almost a personality, a persona.
For example, the internet is deemed to be some sort of global nervous system. So, there’s this real integration that’s coming together which technology is making possible. So, when you have the Gore Tax, the intention originally was to put computers and internet access into Africa and other less-developed countries; they’re trying to bring them into the human family, make them part of the nervous system, and they actually have visions and this vivid imagination where they see the Earth as sort of a brain. We’re just a little part of that. The United States is 2% of the world’s population. It’s a very small part of this human family, but they deem it to be a very greedy part. And just like South Carolina and other Southern States paid a good bit of their revenue and their income and their wealth into the U.S. Treasury, the United States is expected to pay a good bit of its wealth in the redistribution dreams of our global leaders. So, try to think in those terms, because things are changing. They’re changing very dramatically. Now, when we discuss and consider the Confederate Constitution, which is a pretty darn good model of how to organize a political society, you need to ask yourself how the thoughtful Southerners who met in Montgomery, Alabama considered history, not only retrospectively, but where they thought things were going, where we were headed, not only as a nation, but also as an important part of Western Civilization. So, the Confederate Constitution. Let’s clear some things up right up front. Were the framers opposed to empire? Absolutely not. They discussed empire, they anticipated it.
They wanted it. If you read the speeches of Congressmen, particularly in the Senate, you’ll see that they thought once the Confederacy was up and running the major threat to the North (and the North also articulated this concern) was going to be the South’s commercial empire of free trade and Liberty. Of course, this was prior to the 17th amendment, they were representing their States much more effectively because they were accountable to their State legislatures. And you have senators from the New England States anticipating that States of the Mississippi Valley would be joining the Confederacy, and the Confederate Constitution makes provisions for that. They expected and anticipated a larger organization, but one much more committed to the notion of freedom and free enterprise. Empire was something the Southerners, the Confederates, were not averse to. When it came to States’ Rights, the Southerners meant what they said. If you read closely the Confederate Constitution, they made provisions for the States to be self-governing. A State in the Confederacy did not have to have slavery. States in the Confederacy would decide for themselves whether or not they would manumit their slaves or end slavery itself. Now, I know that most of you in your universities probably get the narrative that the South seceded to protect slavery, which of course is not the case. And there’s ample evidence to prove that point. Now, there were some, of course, who did. They thought slavery was an important foundation of Western Civilization. But many did not. And another important component of the Confederate Constitution was the role of Christianity. Not necessarily a dogmatic type of Christianity, but a civilization based upon Christianity, and we’ll be discussing that. But from a prospective point of view, I want you to think about these principles of the Confederacy, where we were, where we are and where we’re headed. The courts are going to be playing a major role in where we are headed. I want to start off with a quotation from a recently decided case. Certainly, all of you are familiar with Grutter v. Bollinger, the affirmative action case. Justice Ginsburg and Justice Breyer slipped something into their concurring opinion, and this is something that international jurists have been advocating, pushing and hoping for. This is what Justice Ginsburg wrote:
“The Court’s observation that race conscious programs, ‘must have a logical endpoint,’ accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of all Forms of Racial Discrimination, ratified by the United States in 1994, endorses special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. ‘But such measures,’ the convention instructs, ‘shall in no case entail as a consequence, the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.’”
Now, what are these fundamental rights? It’s essentially a redistribution of wealth, and that’s what affirmative action is all about – redistributing the wealth. Now, when you look at some of the protocols and treaties and all these other international agreements that the United States is a party to, it’s amazing, and you have the U.N. Declaration of Rights from 1948, and they include all sorts of privileges, rights, and opportunities. Now, the courts juridically should be enforcing those rights today, but the political and cultural climate’s not ripe. The Court knows that and the Court operates incrementally. This kind of judicial activism goes back to the first part of the 20th century when academics and judges and such were saying: “Democracy has failed. We need to turn the administration of the country over to judges who are not accountable to the electorate.” They meant Federal judges. So, things are changing and slowly but surely the courts –as this concurring opinion points out– are ready to make the leap. There will be incorporating into American case law the provisions and mandates of these international treaties and protocols which we are obligated to enforce. Now, we talk about States’ Rights. We could talk about the 10th Amendment, but it has been dead since 1920 as the result of a case that involved a treaty between the United States and Great Britain. The case is Missouri v. Holland, and to make a long story short, Justice Oliver Wendell Holmes said, essentially, that we will know what the 10th Amendment has reserved by deciding what this nation has become. So, the 10th amendment is very fluid, but it’s not the type of fluidity where it’s getting more power. It’s being drained. So, treaties and international agreements are extremely important in trying to understand where we’re going as a country. And we could go off on tangents about the implications of this and that and so on, but I’m just going to try to give you a picture of the landscape that has changed over the last century or so.
Now, when we discuss the Confederate Constitution, we need to ask ourselves: “What were these men attempting to do?” You want talk about slavery? I’ve had some side discussions about that. Slavery was a necessary –but not a sufficient– cause for the Southerners. It’s not that these Southerners, these Confederates, were seceding from the Union to protect an institution that they knew was not only not practical to keep, but also on its last legs. Most Southerners realized that, and you could look at what was happening in the Confederate Congress; they were having these discussions about manumitting slaves. The issue was freedom and their economic rights. Now, you could have pictures in your minds of celebrations and firebrands, but these men loved the Union. They were part of the Union. Just read their exit speeches in the U.S. Senate. These men were torn, but they did what they thought was their duty. They were also convinced that the Union from which they seceded provided a constitutional blueprint from which to structure a new union. Most scholarship considers the acceptance of the 1789 constitutional blueprint as evidence that Southern secession was illegitimate and merely a result of sour grapes stemming from their anticipated declining influence in national politics, i.e. the Republican victory of Mr. Lincoln and his administration. Hence, the rules of the political game were fine (i.e. the U.S. Constitution), they just wanted a new set of players so that Southern political interests would dominate in this new union. The continual refrain in academia is that this Confederate Constitution is a word for word copy of the U.S. Constitution with some minor editorial changes. It’s true that most of the Confederate Constitution is a word for word copy of the U.S. Constitution. But it is also true that the structural and linguistic deviations from the U.S. Constitution have profound implications for the depth and breadth of national power vis-à-vis the States, or what we might call corporate rights, meaning the rights of local communities. As we all know, the Supreme Court pedantically scours the Constitution, its wording, its structure, its language, in order to justify or legitimize various aspects of governmental power, and overall, the Court has been favourable to national power and detrimental to States’ Rights or corporate rights. The changes to be found in the Confederate Constitution substantively altered juridical prerogatives that favour national power over States’ Rights, and as we review the Confederate Constitution, this becomes clear.
Some of you might not know that the Confederate Congress refused to pass the enabling legislation to organize the Confederate Supreme Court. When you read the debates of the Confederate Congress, it’s quite clear why they did not. There are a couple of U.S. Supreme Court cases that reshaped the whole Federal system, one in 1819, one in 1820. Up until that point, it was unclear who would dominate the American judicial system. The Southerners and some Midwestern States interpreted the supremacy clause to simply be instructions to State judges, instructions to the effect that: “While you’re adjudicating a case that involves national laws against State laws, State judges, please keep in mind that national law is supreme,” but it left to the State judges the interpretation of those national laws. These State judges were accountable to the people of the State. This was the case in the Confederacy. But of course, in Martin v. Hunter’s Lessee in 1819 and Cohens v. Virginia in 1820, Chief Justice John Marshall and Justice Story changed that. The Martin case had to do with land in Western Virginia and the Treaty of Paris. That land actually belonged to loyalists, to Tories, and based upon the Treaty of Paris, they were supposed to get that land back, but Virginia had already confiscated the land in-between the treaties. They said: “Well, that doesn’t apply to us. because the law was passed after we had already confiscated and sold the land.” Marshall had vested interests in that, so he recused himself, but Joseph Story picked up where he left off. It would’ve been a very different America had that not occurred. The Confederates sought to avoid a repeat of Martin and Cohens by leaving the Confederate Supreme Court unorganized (the ongoing war probably factored into that decision, too).
Now, looking at the Confederate Constitution, we could start with the preamble, even though it doesn’t really have constitutional standing, it’s important because it got constitutional standing when it helped the nationalists justify their policies. The preamble to the Confederate Constitution contains five important qualifications to the U.S. Constitution’s preamble. First, it affirms that the people of the Confederacy ordained and established the Confederate Constitution through their respective States, each State acting in its sovereign and independent character. The U.S. Supreme Court has dubiously maintained that the U.S. Constitution was ordained and established by the American people, not the States. Although Article Seven of the U.S. Constitution requires ratification by the conventions of nine States, the conventions were deemed to be State-based forms for the collective action of the American people. For example, in 1798 Justice Samuel Chase rejected, “the amnipotence of state legislatures,” (sic) declaring that “the people of the United States erected their Constitutions or forms of government to establish justice, to promote the general welfare, to secure the blessings of Liberty, and to protect their persons and property from violence.”[1] Justice James Iredell concurred by stating: “It has been the policy of all American states, which have individually framed their state constitutions since the Revolution, and the people of the United States, when they framed the federal constitution, to define with precision the objects of legislative power and to restrain its exercise within marked and set boundaries.”[2] Now keep in mind that the U.S. preamble initially listed the States, but for some editorial cleanup they took it out because they didn’t know which States were going to ratify the Constitution. A national constitution ordained and established by the people of the nation places the national unit as the principal in contradistinction to the States. Accordingly, if a State is not the source of authority, i.e. the principal in this legal relationship, it cannot withdraw that authority from the national government when its interests dictate that it should. In his first inaugural address, President Lincoln announced that he would base his administration’s legitimacy on the policy preferences of the American people, not the States. Lincoln insisted: “The chief magistrate derives all his authority from the people.” He viewed the fracturing of the Union, not between Northern and Southern States, but as a division among the American people. The people of the North were the majority and the people of the South the minority. For Lincoln and his Republican Party, the breakup of the Union would be resolved “by judgment of this great tribunal, the American people.” This approach gave his war policies to coercively hold the Union intact the constitutional cover he needed. The same is true when you look at case law: Texas v. White, Hickman v. Jones, and other important cases, it was the American people the Court referred to. The States had no legal standing. So, the Confederate Constitution specifically identifies the States as the parties to the compact. That was the thinking in 1787, but it needed clarification.
Second, the Confederate preamble recovers the tradition to the Declaration of Independence, the Articles of Confederation, and an original view of the U.S. Constitution, that the States are the sources of authority for the national government. The Confederate framers deleted the phrases provide for the common defense. They also deleted “promote the general welfare” from their preamble in the attempt to particularize the document’s application to the States, as opposed to a general application to the American people. The third important qualification in the preamble is the purpose of the CSA Constitution. The Confederate Constitution was to form “a permanent federal government,” not, “a more perfect Union.” The Articles of Confederation talks about a “permanent, perpetual union.” The U.S. Constitution says “a more perfect Union.” Lincoln argued rhetorically that if something’s perpetual and it’s later to be made more perfect, then it’s indissoluble, it lasts into infinity, for eternity. Of course, it doesn’t take much thought to see the flaws in that argument. Nevertheless, Lincoln equated a perfect Union with an indissoluble and perpetual Union, and he meant to enforce it – a Union of the American people, not a Union of States. Fourth, the preamble, as well as Article One, Section Eight, lacks “the general welfare” as an objective of the union or the Congress. There’s no general welfare. There are particular welfares of the people in the respective States.
Fifth –and this is important– the Confederate preamble invokes the favour and guidance of Almighty God. Such an invocation is not necessarily consistent with the thrust of abolitionism, which placed its faith in the higher law of human reason. As you all know, there was a great debate among theologians and clergy in the antebellum period about the Christianity of slavery, and the South won that argument. As Eugene Genovese and others have pointed out, the Bible does sanction slavery. Not necessarily the type of slavery that was in the South, there were certain norms that had to be conformed to, but slavery is sanctioned by the Bible. This created a great split. Prior to the States seceding from the Union, Protestant denominations were seceding from each other into Northern and Southern churches. And you can read some of the correspondence, the books that were written by Protestant theologians, and they discussed this. So much so that some Northerners became very dissatisfied with the Bible and started to slip into Transcendentalism. They began to deny the Divinity of Christ. Now, think about the South and imagine you’re taking communion in a Protestant denomination, and your fellow church members are denying the Divinity of Christ. Things were starting to crack up in the 1840’s and 1850’s. But the Southerners went back to the Bible. Even today you can see that. Where’s the Bible Belt? The South. That’s a legacy of that commitment. It’s cultural heritage. The fact that the Confederate framers prayed for God’s favour and guidance manifested dependence on Divine Will and subordination to Divine Providence. We see this throughout Confederate documents. Through the respective States, Southerners had a covenant with the Divine that had conditions attached. The terms of association among the States are articulated in the Confederate Constitution, which is subordinated to Biblical mandates to submit to God’s guidance. God’s guidance is not to be found in burning bushes or latter-day prophets, but in the text of the Bible. To deviate from the Constitutional mandates was to break one’s word and to act in bad faith. Such behaviour had consequences such as the withdrawal of Divine favour. Because the transcendental order is directly incorporated into the Confederate Constitution with God as a guarantor of its terms, it is more than a legal document. It’s even more than a compact. It’s a covenant among the States contingent upon their willingness to morally and ethically interact with one another. So, the preamble is an introduction. This is not inconsistent with the original Constitution, but it brings clarifications to the U.S. Constitution that were necessary because of the manipulation of the history and the wording of the U.S. Constitution’s preamble. So, in many ways you could think of the Confederate Constitution as a reactionary document, not conservative, because they weren’t conserving the Constitution of the 1860’s. They were going back to the 1780’s.
Article One takes us into the public policy domain of the Confederate Constitution. Remember the association among the States and the Confederacy has changed. Now, I should also say that these gentlemen, when they met in Montgomery, were talking about six States. The border States were not participating. They came later, but they of course apparently agreed to this because they became members of the Confederacy. It may have been different had the border States participated in the Constitutional Convention in Montgomery in 1861, but that’s another story. That said, it’s a different type of association among the States and probably much closer to the original designs, the Southern or the States’ Rights perspective, trying to clarify some of the ambiguities that were left hanging when the U.S. Constitution was ratified in 1789. The public policy making process evolved in the first half of the 19th century. The rules of the game were being written as it was played, and some of those rules of the game were unacceptable to the South. So, they wanted to put in fundamental law clarifications. Article One, Section One of the U.S. Constitution stipulates “all legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives.” In the Confederate Constitution, the powers are not granted. They’re delegated. The principal-agent relationship is made explicit, because jurisprudentially, there’s a substantive difference between granted powers and delegated powers. This is made clear in the landmark case of McCulloch v. Maryland, through which chief justice Marshall conferred on the national government expansive legislative powers, where he’s talking about the necessary and proper clause, the granted powers, the elasticity of those powers and so on. In that opinion, Marshall insists that the U.S. Constitution was created by the American people, not the States. Marshall conceded that the States preceded the U.S. Constitution and the people of the States delegated to their State governments certain powers. Because those powers were delegated, the people had the prerogative to recall certain powers from the respective State governments and in State conventions assembled granted those recalled hours to the newly formed U.S. government. So, what he says is: “Okay, the States preceded the Union, but when the State conventions met to create the U.S. Constitution, they took powers from their State governments and delivered those powers to the national government. Granted, not delegated. ‘Here, it’s yours. Keep it.’” Marshall’s thinking in terms of a gift. Here’s what Marshall wrote in the opinion:
“In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion…It has been said, that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to government, does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted, had it been created by the states.”[3]
Now, in correctly observing that the Union wasn’t created by the State governments, Marshall conveniently glosses over the fact that the Union was created by State conventions, elected by the people of each State and acting in their capacity as representatives of sovereign political communities. Marshall then continues:
“The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty, created by themselves. To the formation of a league, such as was the confederation, the state sovereignties were certainly competent. But when, ‘in order to form a more perfect union,’ it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then (whatever may be the influence of this fact on the case), is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”[4]
This is obiter dictum. It’s not really germane to the case. And yet, in this 1819 decision Marshall has really cleared the decks. According to him, the States preceded the union, but the States in their conventions took their powers away from themselves and relocated them in the national government.
The Tenth Amendment to the U.S. Constitution stipulates: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Confederate Tenth Amendment equivalent stipulates: “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.”[5] That “thereof” makes all the difference. It’s back to the States, not to the American people. So, the Tenth Amendment ends with “people” in the U.S. Constitution, while the Confederate version ends with “thereof,” referring back to the States, emphasizing that the Confederacy is a government of the States, that it emanates from them, and that its powers are delegated by them. Indeed, the Confederate powers are exercised directly on the Confederate people, but with the States as the guardians, as to how those powers are to be exercised. This Confederate Constitution realizes the prospect that the American people constitute an alternative repository of power to the States. This clarification of reserved powers was intended to resolve uncertainties between national and State governments over delegated and reserved powers. Such uncertainties, according to Chief Justice Marshall, were perpetually arising and will continue to arise as long as our system shall exist. According to Marshall, constitutional powers granted to the nation cannot be recalled by a State because such powers were not granted by a State, but by the American people. The American people would have to act together in order to recall granted powers. So, for secession to be legitimate, the American people would have to allow the States to secede. He’s already anticipating secession in 1819, and according to him, secession could not be the act of a single State or a collection of States. He wrote: “The Government of the Union then (whatever may be the influence of this fact on the case) is, emphatically and truly, a Government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit…The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land.”[6]
Article One, Section Two, Clause One of the Confederate Constitution stipulates:
“The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall be citizens of the Confederate States, and have the qualifications requisite for electors of the most numerous branch of the State Legislature; but no person of foreign birth, not a citizen of the Confederate States, shall be allowed to vote for any officer, civil or political, State or Federal.”
This qualification manifests an appreciation of a Southern community distinct from Northern and Western states. The Confederate framers anticipated immigration a large immigration from Northern States and from abroad as the Confederacy commercially prospered, and in an attempt to mitigate the divisive national politics experienced in the old Union, the Confederate framers stifled Northern interest relocated in Confederate States from percolating upward by essentially disenfranchising non-indigenous Southerners. However, they also stipulated in Article Four Section Three: “Other States may be admitted into this Confederacy by a vote of two-thirds of the whole House of Representatives and two-thirds of the Senate, the Senate voting by States.” So, no non-Southern interest could have a voice in Confederate politics, except as a State, and such a State could only be admitted by two-thirds vote, whereas, in the U.S. Constitution, admission to the Union requires only a majority vote. They took their community seriously. If you have a state of Virginia and people from Pennsylvania are going into Virginia to change the political complexion of that state, they can’t participate in the political process at the national level. Now, if Pennsylvania wants to become part of the Confederacy and two-thirds of the Confederate States agree to that, then they have all the rights and privileges thereof, but they were trying to protect their identity as a distinct people. Anybody familiar with contemporary politics can see what’s happening to the South with immigration patterns. I mean, you could take a look at North Carolina and how the political dynamics there are changing quite rapidly, right? They wanted to protect their distinctiveness. You could still have Northern interests participate in Confederate politics at the State level, but it required a two-thirds vote, which in and of itself shows that they were serious about protecting the distinctiveness of the national community. They weren’t going to willy-nilly accept States into the Confederacy, because you change the character of the Confederacy if you just open the doors to anyone.
If you think about early American political development, the option of secession was always a real, viable option, and it has a profound chilling effect on what’s acceptable politically. So, if your membership in the union is voluntary and you don’t like the way things are going, you always have this exit option. But once that option’s taken away, the majority could just run roughshod over your interests and rights. Even under a majority vote to admit a new State to the Union, if you don’t like it (as was the case with the Northeastern States with the acquisition of the territory from the Mexican War), you can leave. The possibility of secession has a chilling effect on what your other States are willing to try to impose on you.
Section Two, Clause Five of the Confederate Constitution stipulates:
“The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment; except that any judicial or other Federal officer, resident and acting solely within the limits of any State, may be impeached by a vote of two-thirds of both branches of the Legislature thereof.”
Once again, they are protecting corporate identity, the rights of local communities. If you have a federal district judge taking over your school system, your prisons, imposing unpopular environmental policies or whatever the case might be, you can impeach that judge and you can keep impeaching whoever they send down. This gives a powerful tool to the States, and it would have a profound chilling effect on what federal officers would do, because you could kick ’em out, you can impeach them, you could remove them from your State jurisdiction. This applied to bureaucrats as well as judges.
Article One, Section Six, Clause Two provides: “Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department.” This innovation was a turn towards a cabinet government in which the independence of the two branches of government were breached. Unlike a committee hearing where the executive department heads are questioned by legislators, this arrangement was more conducive to providing the executive branch opportunities to address the Congress on executive branch terms.
Article One, Section Seven, Clause Two provided the Confederate President with a line item veto on appropriation bills:
“The President may approve any appropriation and disapprove any other appropriation in the same bill. In such case he shall, in signing the bill, designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceedings shall then be had as in case of other bills disapproved by the President.”
This is strengthening of the executive branch was a response to the what was happening in American politics. All these bills were, you know, loaded with pork barrel legislation and so on. Preventing waste and corruption was also the purpose behind Article One, Section Nine, Clause One, which required that every appropriations bill specify exactly how much money was being raised and why. These weren’t one-offs, they were carefully considered changes. Preventing special interests from getting rich off the backs of the taxpayers was a running theme throughout the Confederate Constitution. Article One, Section Eight, Clause Three stipulates: “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 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.”
So, internal improvements were really constrained within the Confederacy and those business interests that benefited from the internal improvements had to pay the costs. This is similar to the post office of the Confederacy, which had to be self-supporting.[7] The following quotation comes from Representative William W. Boyce, who was at the Montgomery Convention, and this is an excerpt of his discussion with Robert Toombs on the floor of the Senate about the U.S. post office and the appropriations for the post office for the fiscal year of 1859:
“That the department should be self-sustaining I assume as an axiom; for why should one man be taxed to carry the letters of another? There’s no justice in it. Let those who send letters pay for them. It is very convenient, doubtless, for the merchants, literary men and professional men to have the hard-working masses pay for their letters. But it is not right. Let letters like merchandise be carried by private enterprise. The service, I have no doubt, would be well and cheaply done, for private enterprise is always more efficient than government action. Indeed, when I consider the immense patronage of this department as a states’ rights man, opposed to too strong a Federal government, I see great advantage in getting rid of this patronage and thus simplifying the government.”
This more or less was the thinking of the delegates in Montgomery. And as you read through the Confederate Constitution, it constrains the Confederate government. Now, what happens at the State level is another issue. As we all know, State governments grow and expand, and they can be just as oppressive of the national government. The difference is you have much more control over what happens at the State level. The Confederate framers also incorporated the Bill of Rights into the body of the Constitution. So, essentially the Confederate Constitution is a reactionary document to downsize the government and to make it more accountable to the States in an unambiguous language. The States are the parties to the compact, not the Confederate people. Thank you very much.
[1]See Chase’s opinion in Calder v. Bull, beginning on page 1 of the PDF: https://tile.loc.gov/storage-services/service/ll/usrep/usrep003/usrep003386/usrep003386.pdf
[2]See Iredell’s opinion in Calder v. Bull, beginning on page 13 of the PDF: https://tile.loc.gov/storage-services/service/ll/usrep/usrep003/usrep003386/usrep003386.pdf
[3]https://www.law.cornell.edu/supremecourt/text/17/316
[4]Ibid.
[5]Article Six, Section Six. https://usconstitution.net/csa.html#A6Sec6
[6]https://www.law.cornell.edu/supremecourt/text/17/316
[7]Article One, Section Eight, Clause Seven.
If the US Constitution was such an egregious document it was necessary that the wise men did not agree to it on any terms. But by 1800 that horse had left the barn.