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This week in history: The Confederate Constitution is adopted

By Cody Carlson

For the Deseret News

Published: Wednesday, March 12 2014 5:20 p.m. MDT

Civil War re-enactor Val Spruell, of Vernal, poses with his 12-pound Confederate Napolean cannon after a firing demonstration Sunday, April 14, 2013, at the Buckskin Hills Complex in Uintah County.

Geoff Liesik, Deseret News

On March 11, 1861, the Confederate Provisional Congress adopted the Confederate Constitution as the legal framework for the Confederate States of America. The Confederate Constitution imitated the U.S. Constitution in many ways, though differed critically in others.

After Abraham Lincoln's election to the president of the United States in November 1860, many Southern states declared their intention to secede from the Union. First was South Carolina in December 1860, followed by Mississippi, Florida, Alabama, Georgia and Louisiana in January 1861. Texas seceded on Feb. 1.

These states seceded because the Republican Lincoln had stated his intention to keep the practice of slavery from spreading to the western U.S. territories. For many die-hard slave owners in the south, this meant a slow death for their “peculiar institution.”

Eventually, a total of 11 states would secede from the Union, though the Confederates would claim that both Missouri and Kentucky had likewise joined the Confederacy. Despite the fact that they were slave-holding states, Missouri and Kentucky remained in the Union for the entirety of the Civil War, as did slave states Maryland and Delaware.

Recognizing their need for unity in the face of Lincoln's opposition to their movement, the seven initial secessionist states met in Montgomery, Ala., with the intention of creating a new unifying government — what they soon named the Confederate States of America. To that end, they called for a constitutional convention that would produce a framework for their government. The delegates entered into debate about how much of the U.S. Constitution should be adopted outright and how much should be amended to suit the secessionist states' peculiar situation and unique needs.

It was decided that they would quickly draft a provisional constitution in order to facilitate the creation of a workable government, though with an eye to soon creating a permanent constitution. The provisional Constitution created a temporary confederate congress and offered the position of provisional president of the Confederate States to Jefferson Davis, former U.S. senator and secretary of war.

In his book, “Battle Cry of Freedom: The Civil War Era,” historian James M. McPherson wrote: “In six days the delegates at Montgomery drafted a temporary constitution, turned themselves into a provisional Congress for the new government, elected a provisional president and vice president, and then spent a more leisurely month fashioning a permanent constitution and setting the machinery of government in motion.”

During the next month, the new confederate congress worked to create a constitution that theoretically was as democratic as that of the U.S. Constitution, but was also careful to protect such sacred Confederate concepts as slavery and states rights. One of the most prominent men to take part in the crafting of the new document was Robert Barnwell Rhett, a former South Carolina senator and newspaper owner, and now a convinced, hard-core secessionist.

In his book, “Look Away: A History of the Confederate States of America,” historian William C. Davis wrote: “Rhett proposed that they take the United States Constitution as a model and make only the most necessary changes. Their task should be 'a matter of restoration, than of innovation,' he said. Then he produced a bound copy book with his proposed changes, suggesting that they should use it as a basis for their deliberations.”

Rhett did not favor a preamble along the lines of the U.S. Constitution, because he objected to what he saw as a nebulous notion of a Confederate “people.” Rather, Rhett argued, political power flowed from the states as political institutions, not the people — an extreme view of the state's rights argument that was becoming more accepted in Confederate circles. He also rejected the U.S. Constitution's 3/5 compromise, in which for the purposes of apportionment in congress, a slave counted as only 3/5 of a man. Rhett wanted the disenfranchised slaves to each be counted as one man, thus strengthening slave owners in the south even further. This no doubt would have benefited his native South Carolina, where black slaves outnumbered free white men.

Differences raged over other issues as well, one being the powers of the president of the Confederacy. Should the president be more powerful or less powerful than the U.S. president? Debates over the exact relationship of the states to the new Confederate government also claimed much of the congresses' time.

Finally, on March, 11, 1861, the Confederate Constitution was formally adopted as the working government of the Confederate States of America. Much of it was lifted directly from the U.S. Constitution, as many Confederates believed that the U.S. Constitution was as much their inheritance as the Union's. Indeed, the Confederates would continue to state that George Washington was their first president as well. There were, however, many important differences between the documents.

For instance, unlike the U.S. Constitution, the Confederate version limited the president to one six-year term — this before any term limits existed for the U.S. president. The president would have an important new power, however, one designed to cut through congressional gridlock. The Confederate president would have the power of the line-item veto, allowing him to disregard parts of a bill while signing the most important aspects into law. This was a power that later U.S. President George H. W. Bush repeatedly asked the American people for.

Also, the U.S. Constitution stated that there should be no more than one representative for every 30,000 people. The Confederate Constitution stated that there should be no more than one representative for every 50,000.

Despite Rhett's objection, the Confederate constitution did indeed carry a preamble, though its language signaled the importance of each state's rights, putting the state on at least an equal footing with “the people”:

“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 tranquility, 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.”

Perhaps the important departures had to do with the institution of slavery. Though the 3/5 compromise held, again to Rhett's chagrin, the new document used the word “slave” freely, where euphemisms had been employed in the U.S. Constitution. Also, Article 1, Section 9, paragraph 4, states: “No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.”

What this meant, in essence, is that slavery would be protected throughout the Confederacy, and nobody, not even a state government, had the right to nullify the right to own another human being. This is very telling. To this day, many believe the “state's rights” argument was the primary reason for southern secession, while slavery was only a factor. Indeed, the very real and profitable institution of slavery was always more important to powerful Southerners than the nebulous notion of state's rights. If state's rights were more important than slavery, then why couldn't a state end slavery within its own borders under this new constitution?

William C. Davis wrote: “It was a democracy different from the one they had recently departed, and it remained to be seen whether it could work. What had they gotten wrong? What had they overlooked? Did it give them the power to do what was necessary to preserve, protect and defend their new nation? And most of all, would that great mass of people in the Confederacy, men and women, white and black, free and slave, willingly yield to the demands the future was going to place upon them, and accept the severely limited control over their own lives and fortunes in the crisis that their Constitution gave them?”

A few days after this constitution was passed, Alexander Stephens, a former U.S. congressman elected to the office of vice president of the Confederacy, made his famous “Cornerstone” speech in his native Georgia. In this speech, Stephens noted that the idea of equality and the U.S. founding fathers' notions that slavery was necessary evil that might one day disappear were wrong:

“Our new government is founded upon exactly the opposite ideas; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not the equal to the white man; that slavery, subordination to the superior race, is his natural and moral condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical and moral truth ...”

The Confederate States of America was conquered by the U.S. Army in 1865, the same year that the 13th Amendment to the U.S. Constitution outlawed slavery forever.

Cody K. Carlson holds a master's degree in history from the University of Utah and currently teaches at SLCC. Cody has also appeared on many local stages including Hale Centre Theatre and Off Broadway Theatre. Email: ckcarlson76@gmail.com

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