Tuesday, April 09, 2013

The CSA constitution in light of the secession ordinances


Over the last four years, conservatives have tried to own the constitution, just as they have for the last half century owned the flag and patriotism. And, once again, liberals are making a monstrous mistake by not fighting for it. Liberals also love and support the constitution. That we interpret it differently than conservatives does not mean we do not believe in it.

I read the Constitution. I keep a little one right here on the desk next to a copy of Archy and Mehitabel. These are the only books on the desk. I also read other constitutions. A few years back I went through all the state constitutions to see what they said about religious rights. Every so often I read the Confederate Constitution. Like the secession ordinances, it's a very interesting view into what was important to them at the time they seceded.

Let's review the secession ordinances. Five of the eleven seceding states gave reasons for doing so. Those states were South Carolina, Alabama, Georgia, Texas and Arkansas. The one reason they all agreed on was that the victory of the Republicans in the recent election made them sure that abolitionists would use the power of the state to end slavery. The next most common complaint was that the northern states refused to enforce fugitive slave laws. Three states specifically cited slavery being excluded from most of the western Territories. Two were upset that Black men were allowed to vote in the North. Arkansas was upset that slave owners were prevented from bringing their slaves with them when traveling in the North and Texas was upset that the federal government didn't do enough to prevent Indian attacks.

All this is preface to the Confederate Constitution. These were the immediate stated reasons for secession. Surely, there were other, broader issues that they cared about? Yes, there were. That's still true today. Different regions have different priorities. Depending on the makeup of their populations, their economies, and and their geographic positions, some things will matter more than others. The Confederate Constitution reflects what mattered to the slave-holding states in 1861. Today, I'll talk about how the Confederate Constitution dealt with their grievances over slavery. In the next installation of Treason Appreciation Month, I'll look at what it has to say about big government and states' rights.

How did the Confederate States of America get their constitution? The United States Constitution was the result of months of deliberation by some of the greatest minds of the thirteen states and tested by more months of public debate before being ratified. That's not how the Confederates did it. In fact, their Constitution was an afterthought.

On January 11, 1861, Alabama was the fourth state to secede. While the previous three secession ordinances speak only for their specific states and the immediate moment. Alabama's ordinance envisioned a common front among all slave states, whether for defense, negotiation, or other purposes. By resolution, Alabama invited all of the slave states to meet in Montgomery on February 4 "for the purpose of consulting with each other as to the most effectual mode of securing concerted and harmonious action in whatever measures may be deemed most desirable for our common peace and security." When the convention met, they were pretty much decided on forming a new federation and promptly empowered a committee to write a constitution. They gave them two days to do so. Fortunately, one of the members of the committee already had a constitution in his pocket and by the due date they had completed the task and already had copies to pass around the convention.

Considering the short work involved, it should surprise no one that the Confederate Constitution is nothing more than a revision of the Union Constitution. They did not begin anew from first principles; they simply changed those parts they didn't like. The easiest change they made was to go through and change the word "United" into "Confederate" wherever it appeared.

Next, they added God. Today, it's common wisdom among Christian nationalists that the founding fathers intended the US to be a Christian nation. They just, uh, forgot to mention that when they wrote the Constitution or when they wrote that amendment about established religion. What did the good Christians of the Bible belt do to fix this? I think most modern Christian nationalists would say "not enough." To the Preamble, they added, "invoking the favor and guidance of Almighty God." Where dates were mentioned, they used the form "year of our Lord." Other than that, they gave squat to Christianity. The First Amendment was carried over unchanged into their Constitution.

What else did they change? There are a number of line by line comparisons on the internet. That's the best way to go. The first time I read the Confederate Constitution was in a paperback book of Civil War documents published in the seventies with brackets and fonts to indicate what the Confederates kept, added, changed, and deleted. It was fascinating, but it took a lot of close attention and note-taking to understand. The internet version I most often go to these days is this one. I like the simple two-column comparison with a third column for comments.

The Confederate Constitution is very clear on the issues of slavery. Whereas the US Constitution never uses the word "slave"--using instead circumlocutions like "Persons bound to Service--the Confederate Constitution makes clear exactly what they mean by using the word "slave" whenever they mean slave. As far as the issue of slavery is concerned, the most important clause in the entire constitution is in the list of things Congress cannot do: Article I, section 9, part 4, "No ... law denying or impairing the right of property in negro slaves shall be passed." The common complaint in the secession ordinances was that they feared the Republicans would attempt to use the power of the central to abolish slavery. This clause puts that fear to rest. Three of the other complaints are specifically dealt with.

The US Constitution already had a clause dealing with with fugitive slaves (Art. IV, Sec. 2, Pt. 1). The complaint of the southern states was that the northern states refused to enforce it. This should not have been a problem in the Confederacy, unless non-slave states were admitted at some date in the future. Their only changes to the clause were to make it more clear and emphatic.

Arkansas' complaint that slave owners were prevented from bringing their slaves with them when traveling in other states was dealt with in a very clear manner. Article IV, Section 2, Part 1, which in the US Constitution reads "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States..." was changed by the addition of "...and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired." Again, this should not have been a problem in the Confederacy, unless non-slave states were admitted. The final clause prevents any kind of shenanigans whatsoever.

The issue of taking in additional states was something that the architects of the Confederacy had on their minds. Pro-South groups existed throughout the West. If the secession crisis had happened a year later, there might very well have been a friendly territory carved out of southern California. After the shooting started, the leaders of the main tribes in the Indian Territory (Oklahoma) agreed to join the Confederacy. Rather that go east to fight the Union, Texas sent part of its armies west where they created a territory called Arizona. The Confederate Constitution kept the the same provisions as the US Constitution that allowed the central government to administer territory not belonging to any individual state, to organize territorial governments, and to admit territories as new states (Art. IV, Sec. 3). Naturally, a new clause was added that required all territories to allow slave owners to bring their slaves and guaranteed that all new states would be slave states. one unexplained difference between the two constitutions it that the Confederate Constitution required a two-thirds majority in congress to admit a new state while the US only required a simple majority.

The final complaint in the secession ordinances was that northern states allowed free Black men full citizenship, including the vote*. One of the clauses of the Amendment offered by Arkansas to save the Union was that freedmen in  other states be disenfrancised. South Carolina cited racial equality in the North as one of the insults suffered by the South. Texas indignantly proclaimed that it was an "undeniable truth that the governments of the various States ...  were established exclusively by the white race, for themselves and their posterity." While the other complaints were dealt with in a very specific manner, this one is not.

Since the reason for the secessions and the formation of the Confederacy was the preservation of a system of race-based subjugation  it's curious that nothing is said in the Confederate Constitution about limiting citizenship, or the vote, or anything to just the White race. The word "White" never appears. Did they think it was too obvious to mention? That would be an odd thing to think. All of the revisions made to the Constitution relating to slavery, were made to make explicit things they believed understood by all that had been interpreted by the rest of the Union in ways that hurt slave owners. How difficult would it have been to shove in a sentence that said only White folk could become citizens and exercise the rights of citizenship. Perhaps, to them, it was so obvious that they didn't think to mention it.

Next: Big Government, States' Rights, and the Rest of the Confederate Constitution.

* I was always under the impression that Louisiana Freemen did have the right to vote. Does anyone know the details on this?

4 comments:

Greg said...

Great piece. For now I have only a couple of comments.

First, someone should make a Word document (but please use Libra Office not MS Office) out of the US Constitution (is there such a thing now?) and then use "track changes" to make it into the CSA constitution.

Second, I'd love your take on the two constitutions that made up what was to become a big chunk of South Africa (later on) in the mid 19th century, the South African Republic and the Orange Free State. The two countries wrote their constitutions at about the same time as British Rule was ending, but used entirely different approaches and came up with very different results.

You read Dutch, right?

John McKay said...

In working on the book I have translated French, German, Latin, Russian, Danish, Swedish, Hungarian, Proven├žal, and Dutch, but no Afrikaans. You know that Colonial South Africa was one of my graduate specialties, so you're just taunting me, aren't you?

Greg said...

I am taunting you.

There are elephants in South Africa, by the way. In case you did not know that.

The Dutch you translated: was any of that from historic documents? Afrikaans is like some living dialects to the extent that some Dutchmen are quickly comfortable, and the two languages diverged recently enough that historical Dutch and historical Afrikaans would be closer. In fact, I'd suspect that you'd find the idiom of RSA writing and Orange Free State writing to be more different from each other in some areas than 1850s Dutch vs. 1850s Afrikaans.

Greg said...

I am taunting you.

There are elephants in South Africa, by the way. In case you did not know that.

The Dutch you translated: was any of that from historic documents? Afrikaans is like some living dialects to the extent that some Dutchmen are quickly comfortable, and the two languages diverged recently enough that historical Dutch and historical Afrikaans would be closer. In fact, I'd suspect that you'd find the idiom of RSA writing and Orange Free State writing to be more different from each other in some areas than 1850s Dutch vs. 1850s Afrikaans.