The Confederate States Constitution, formally the Constitution of the Confederate States of America, was the supreme law of the Confederate States, as adopted on March 11, 1861, and in effect from February 22, 1862, through the conclusion of the American Civil War. The Confederacy also operated under a Provisional Constitution from February 8, 1861, to February 22, 1862. The original Provisional Constitution is currently located at the Museum of the Confederacy in Richmond, Virginia, and differs slightly from the version later adopted. The final, hand-written document is currently located in the University of Georgia archives at Athens, Georgia. In regard to most articles of the Constitution, the document is a word-for-word duplicate of the United States Constitution. However, there are crucial differences between the two documents, in tone and legal content, primarily regarding slavery.
The Preambles of both Constitutions do have some similarities, though it seems that the Confederate Constitution authors set out to give a different feel to the new preamble. Both preambles are provided here. The bold text shows the differences in the two. The Confederate constitution's preamble includes references to a religious deity and perpetual government.
The Preamble to the U.S. Constitution: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
The Preamble to the Confederate Constitution: "We, the people of the Confederate States, each state acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, 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."
The Confederate Constitution followed the U.S. Constitution for the most part in the main body of the text with some changes.
Article I Differences:
Amended Article I Section 2(1) to prohibit persons "of foreign birth" who were "not a citizen of the Confederate States" from voting "for any officer, civil or political, State or Federal."
Article I Section 2(3) is essentially the same. Although, the clause still only counts "three-fifths of all slaves" for the population total of each State, just as it did in the U.S. with the Three-Fifths Compromise, "The number of Representatives shall not exceed one for every fifty thousand". while in the U.S. Constitution "The Number of Representatives shall not exceed one for every thirty Thousand."
Amended Article I Section 2(5) to allow the state legislatures to impeach federal officials who live and work only within their state with 2/3 vote in both houses of the state legislature.
Concerning the appointment of Senators Article I Section 3(1) adds "at the regular session next immediately preceding the commencement of the term of service." The State Legislature, who was responsible for the appointment of Senators at the time, must wait until the seat was vacant.
Article I Section 4(1) deals with elections and adds "subject to the provisions of this Constitution" to the U.S. Constitution Clause. This means that each State Legislature is free to make their own decisions except where the Constitution has laid out other rules. The fore mentioned Article I Section 2(1) and Article I Section 3(1) clauses would fall into that category.
Amended Article I Section 6(2) to allow the House of Representatives and Senate the ability to grant seats to the heads of each Executive Department in order to discuss issues involving their departments with Congress. This Clause is the same as the one from the U.S Constitution and adds:
Amended Article I Section 7(2) to provide the President of the Confederate States of America with a line item veto but also required any bill which the president used the veto in to be resubmitted to both houses for a possible override vote by 2/3 of both houses.
In an attempt to prevent the Confederate Congress from protecting industry the framers add to Article I Section 8(1).
The phrase "general Welfare" was dropped from the Confederate Clause as well.
Article I Section 8(3) adds quite a bit to the U.S. Constitution in an attempt to block the Confederate Congress from passing law to "facilitate commerce" with some exceptions allowing for safety and improvement to waterways.
There are changes and additions to Article 1 Section 9 Clauses (1), (2), and (4) that are covered in the Slavery section below.
The first twelve amendments to the U.S. Constitution, including the Bill of Rights, were directly incorporated into the Confederate Constitution. This was done primarily in Article I Section 9 of the Confederate Constitution with the first Eight Amendments to the U.S Constitution becoming clauses (12) to (19).
In addition to these there are three altogether new clauses in the Confederate Constitution for Article I Section 9.
Article I, Section 9(9)
Article I, Section 9(10)
Article I, Section 9(20) was added to limit new bills to contain only one subject when presented.
Then in Section 10:
Article I Section 10(3) Confederate States do not have the ability to tax ships and negotiate treaties concerning water ways with other States without the consent of Congress. This Clause limits the Confederate States in their ability to keep troops or engage in war as well, though they would have the ability to enter compacts for the improvement of shared rivers.
Changes to Article II:
The President of the Confederate States of America is to be elected by electors, chosen by the individual states, for a single six-year term, rather than an unlimited (at that time) number of four-year terms. Article 2 Section 1(1) reads as: "The executive power shall be vested in a President of the Confederate States of America. He and the Vice President shall hold their offices for the term of six years; but the President shall not be re-eligible."
Amendment XII of the U.S. Constitution is added here as Article II Section 1(3), (4), and (5)
Article II Section 1(7) of the Confederate Constitution requires candidates for the President of the Confederacy to have resided "within the limits of the Confederate States" for 14 years.
Changes to Article III
Article III Section 2(1) of the Confederate Constitution combines the first clause of Article III Section 1 in the U.S. Constitution with Amendment XI. The phrase "citizens of the same state" is left out and "and foreign states, citizens or subjects; but no state shall be sued by a citizen or subject of any foreign state" is added in the Confederate Constitution.
Changes to Article IV
There are changes and additions to Article IV Section 2(1) and Article IV Section 3(3) that are covered in the Slavery section below.
Article IV Section 3(1) make a 2/3 vote necessary for a new State to join the Confederacy.
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; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.
Changes to Article V
The process of amendment became easier (Article V Section 1(1)), requiring only two-thirds of the states rather than three-fourths. Also, amendments do not have to be passed by the Confederate Congress.
Changes to Article VI
The Confederate Constitution adds a clause to aid with the transition from the provisional government.
Article VI Section 1(1)
The Government established by this Constitution is the successor of the Provisional Government of the Confederate States of America, and all the laws passed by the latter shall continue in force until the same shall be repealed or modified; and all the officers appointed by the same shall remain in office until their successors are appointed and qualified, or the offices abolished.
Amendments IX and X of the U.S. Constitution are added here as Article VI Section 1(5), and (6)
Changes to Article VII
Article VII Section 1(2) is instructions for electing permanent officials after the ratification of the Confederate Constitution are added.
When five states shall have ratified this Constitution, in the manner before specified, the Congress under the Provisional Constitution, shall prescribe the time for holding the election of President and Vice President; and, for the meeting of the Electoral College; and, for counting the votes, and inaugurating the President. They shall, also, prescribe the time for holding the first election of members of Congress under this Constitution, and the time for assembling the same. Until the assembling of such Congress, the Congress under the Provisional Constitution shall continue to exercise the legislative powers granted them; not extending beyond the time limited by the Constitution of the Provisional Government.
There are several major differences between the U.S. and Confederate constitutions in the area concerning slavery.
Whereas the original U.S. Constitution did not use the word slavery or the term "Negro Slaves", but "Person[s] held to Service or Labor" which included whites in indentured servitude, the Confederate Constitution addresses the legality of slavery directly and by name.
Though Article I Section 9(1) of both constitutions are quite similar in banning the importation of slaves from foreign nations the Confederate Constitution permits the C.S. to import slaves from the United States and specifies the "African race" as the subject. The importation of slaves into the United States, including the South, had already been illegal since 1808.
While the U.S. Constitution reads
The Confederate Constitution then adds a clause that the C.S. Congress has the power to prohibit the importation of slaves from any state that is a non-Confederate state.
While the U.S. Constitution has a clause that states "No bill of attainder or ex post facto law shall be passed" the Confederate Constitution adds a phrase to explicitly protect slavery. According to historian William C. Davis, the fact that the Confederate constitution explicitly protected slave ownership, "should hardly have surprised anyone."
The U.S. Constitution states in Article IV Section 2 that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The Confederate Constitution adds that a state government cannot prohibit the rights of a slave owner traveling or visiting from a different state with his or her slaves.
The Confederate Constitution added a clause about the question of slavery in the territories (the key Constitutional debate of the 1860 election) by explicitly stating that slavery is legally protected in the territories.
According to an 1861 speech delivered by Alabaman politician Robert Hardy Smith, the State of Alabama declared its secession from the U.S. in order to preserve and perpetuate the practice of slavery, the debate over which he referred to as the "Negro quarrel". In the speech, Smith praised the Confederate constitution for its un-euphemistic and succinct protections of the right to own "Negro" slaves:
We have dissolved the late Union chiefly because of the negro quarrel. Now, is there any man who wished to reproduce that strife among ourselves? And yet does not he, who wished the slave trade left for the action of Congress, see that he proposed to open a Pandora's box among us and to cause our political arena again to resound with this discussion. Had we left the question unsettled, we should, in my opinion, have sown broadcast the seeds of discord and death in our Constitution. I congratulate the country that the strife has been put to rest forever, and that American slavery is to stand before the world as it is, and on its own merits. We have now placed our domestic institution, and secured its rights unmistakably, in the Constitution. We have sought by no euphony to hide its name. We have called our negroes 'slaves', and we have recognized and protected them as persons and our rights to them as property.
Georgian Democrat Alexander H. Stephens, who would become the Confederacy's vice president, also stated that the Confederate constitution was "decidedly better than" the American one, as it "put at rest, forever, all the agitating questions relating to our peculiar institution. African slavery as it exists amongst us; the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the 'rock upon which the old Union would split.' He was right."
Some today feel that the Confederate Constitution's Preamble including the phrase "each State acting in its sovereign and independent character" focuses the new Constitution on the rights of the individual States.
The Preamble to the Confederate Constitution begins : "We, the people of the Confederate States, each State acting in its sovereign and independent character..."
The Confederate States gain several rights that the U.S. states did not have.
The ability for individual states to impeach judges and federal officers working within their states.
The Confederate Constitution omits the phrase “emit Bills of Credit” from Article 1 Section 10 of the U.S. Constitution, granting the Confederate States the right to issue such bills of credit.
And the U.S. Constitution's
Article I Section 10 with the included "emit Bills of Credit."
The Confederate States gain the ability to tax ships by omitting the phrase from the U.S. Constitution that prohibits it.
While the U.S. Constitution reads:
The ability to tax ships to raise revenue for the Confederate States is reinforced in
Article 1 Section 10(3).
Also in Article I Section 10(3) the Confederate States would have the power to make treaties between the each other concerning waterways.
The Confederate States lose a few rights that the U.S. states retained.
States lose the right to determine if foreigners can vote in their States: Article I Section 2(1) as mentioned above.
Confederate States also lose the ability to restrict the rights of traveling and sojourning slave owners. : Article IV Section 2(1) as mentioned above (Note: Many Southerners were already of the opinion that the U.S. Constitution already protected the rights of sojourning and traveling slave owners, thus the Confederate Constitution merely made this explicit).
The ability for Confederate Congress to determine taxes between States.
The U.S. Constitution contained many of the phrases and clauses which had led to disagreement among the states in the original Union, including a Supremacy Clause, a Commerce Clause, and a Necessary and Proper Clause. The Supremacy Clause and the Necessary and Proper Clause are nearly identical in both Constitutions.The Commerce Clause differs as follows in that the Confederate Congress is prevented from passing laws to "facilitate commerce", as shown above.
Although the Confederate States Supreme Court was never constituted, the supreme courts of the various Confederate states issued numerous decisions interpreting the Confederate Constitution. Unsurprisingly, given that the Confederate Constitution was based on the United States Constitution, the Confederate State Supreme Courts often used United States Supreme Court precedents. The jurisprudence of the Marshall Court, thus, influenced the interpretation of the Confederate Constitution. The state courts repeatedly upheld robust powers of the Confederate Congress, especially on matters of military necessity.
The signatories of the constitution were:
Howell Cobb, President of the Congress
South Carolina: R. Barnwell Rhett, C. G. Memminger, Wm. Porcher Miles, James Chesnut, Jr., R. W. Barnwell, William W. Boyce, Lawrence M. Keitt, T. J. Withers
Georgia: Francis S. Bartow, Martin J. Crawford, Benjamin H. Hill, Thos. R. R. Cobb
Florida: Jackson Morton, J. Patton Anderson, Jas. B. Owens
Alabama: Richard W. Walker, Robt. H. Smith, Colin J. McRae, William P. Chilton, Stephen F. Hale, David P. Lewis, Tho. Fearn, Jno., Gill Shorter, J. L. M. Curry
Mississippi: Alex. M. Clayton, James T. Harrison, William S. Barry, W. S. Wilson, Walker Brooke, W. P. Harris, J. A. P. Campbell
Louisiana: Alex. de Clouet, C. M. Conrad, Duncan F. Kenner, Henry Marshall
Texas: John Hemphill, Thomas N. Waul, John H. Reagan, Williamson S. Oldham, Louis T. Wigfall, John Gregg, William Beck Ochiltree
