The Confederate Constitution and the U.S. Civil War

During the U.S. Civil War, the Confederate States had their constitution. Here, Jeb Smith considers the constitution. He includes consideration of Confederate state sovereignty, fiscal responsibility, and anti-discrimination.

This is part 4 in a series of extended articles from the author related to the US Civil War. Part 1 on Abraham Lincoln and White Supremacy is here, part 2 on the Causes of Southern Secession is here, and part 3 on whether the Civil War was fought for slavery or States’ rights here.

Jefferson Davis, President of the Confederate States, in 1862.

"When the dogmas of a sectional party...threatened to destroy the sovereign rights of the States, six of those States, withdrawing from the Union, confederated together to exercise the right and perform the duty of instituting a Government which would better secure the liberties for the preservation of which that Union was established."                   

-        Jefferson Davis Inaugural Address, Richmond, Virginia, 1862 

"It was clear from the actions of the Montgomery convention that the goal of the new converts to secessionist was not to establish a slaveholder's reactionary utopia. What they really wanted was to create the Union as it had been before the rise of the new Republican party."

-        Robert Divine, T.H Bren, George Fredrickson, and R Williams, America Past and Present, HarperCollins, 1995

The original states that left the Union did so as separate and sovereign republics but soon entered into a confederacy.[1] Their capital was located in Montgomery, Alabama. Delegates from the seceding states joined together and formed the Confederate Constitution on March 11, 1861. The South sought to restore the Constitution as the founders originally intended it to be. 

Confederate President Jefferson Davis said, "The constitution framed by our founders is that of these confederate states." When the state legislators of Texas joined the Confederacy, they informed the crowd gathered in Austin on April 1, 1861, that "The people will see that the Constitution of the Confederate States of America is copied almost entirely from the Constitution of the United States. The few changes made are admitted by all to be improvements. Let every man compare the new with the old and see for himself that we still cling to the old Constitution made by our fathers." As historian Marshall DeRosa summarized in Redeeming American Democracy, "The confederate revolution of 1861 was a reactionary revolution aimed at the restoration of an American democracy as embodied in the Constitution of 1789."

While the Confederate constitution was in many ways nearly identical to that of the old Union, the North had taught the South how a majority could eradicate constitutional liberty. Consequently, the Southern statesmen sought to prevent tyranny in their Confederacy. The Confederate Constitution differs from the United States constitution in various areas as the South sought to preserve self-government via diverse self-governing states. To accomplish this end, they strictly limited central powers. As a result, the differences between the documents can tell us about the causes that led to the Southern withdrawal. 

Confederate State Sovereignty

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. 

-        Confederate Constitution Preamble 

The creators of the southern Constitution made it clear that the states were sovereign. In the Confederacy, no one would be able to claim that authority rested with the central government as Republicans had in the old Union. The United States Constitution reads, "We the people of the United States, in order to form a more perfect Union...." the Confederate version reads, "We the people of the Confederate States, each state acting in its sovereign and independent character ..." 

As sovereign confederated states, they could exercise nullification or secession to protect their citizens from federal coercion. We will discuss nullification and secession in more detail in a later chapter, but they were the two antebellum modes of dealing with the federal government when it stepped past its delegated powers. In The Rise and Fall of the Confederate Government, Confederate president Jefferson Davis wrote, "It was not necessary in the Constitution to affirm the right of secession, because it...was an attribute of sovereignty, and the states had reserved all which they had not delegated." The southern states that ratified the Confederate Constitution kept the right to secession in their state constitutions. For example, the Alabama state constitution reads:

Section 2. All political power is inherent in the people, and all free governments are founded on their authority and instituted for their benefit; and that, therefore, they have at all times an inalienable and indefeasible right to change their form of government in such manner as they may deem expedient.

According to a well-known secession document we call The Declaration of Independence, it is an inalienable right to have a government that represents you and not a distant majority or a powerful national party. Southerners believed this was no less true in 1861.

In response to claims made by Lincoln, the Confederate Constitution also declared that the people of the states had sovereignty and not the entirety of people. Each state was separate from the others and sovereign within its jurisdiction. Decentralization, or "states' rights," allowed multiple diverse sets of governments to coexist; it preserved self-governance and benefited "we the people." Decentralization, or localism, is based on populations creating laws organically for their benefit. To get a sense of what decentralization provides, imagine your preferred political party (not just your party, but your brand of the party) winning every election at every level. Not only that, you would not have to spend time and money fighting the other party to prevent men from gaining power that you don't want them to have. You could create unified blocs of society and live with like-minded people. 

On the other hand, centralization occurs when forces far from these self-governing localities impose their ways on numerous smaller localities because of their power and influence. In such a situation, the former free individuals, over time, lose their self-governance and ability to choose from a diverse set of customs. Instead, they become tools to benefit those in power in distant lands under the increasingly conformist policy. The only people decentralization harms are the powerful bureaucrats and politicians. They seek to plunder our wealth to redistribute it to friends and interest groups and purchase a voting bloc to maintain power. 

The Southern move towards decentralization is well known and widely accepted. For example, in Redeeming American Democracy, Confederate Constitution scholar Marshall DeRosa wrote, "The confederate framers placed the government firmly under the heads of the states." In The Confederate States of America, Southern historian E Merton Colter stated, "States rights dogma...produced secession and the confederacy." In his book Clouds of Glory: The Life and Legend of Robert E Lee, Michael Korda said the South's "first concern was states' rights." In Ken Burn's Civil War documentary, the narrator states, "The Confederacy was founded upon decentralization." Southern writer Lochlainn Seabrook, in his book The Constitution of the Confederate States of America, explained that the Confederacy put "emphasis on small government and states’ rights." Professor Marshall DeRosa quotes Judge Robertson of Confederate Virginia Supreme Court Case Burroughs v Peyton in 1864 as stating, "{The Confederate} Congress can have no such power over state officers. The state governments are an essential part of the political system, upon the separate and independent sovereignty of the states, the foundation of the Confederacy rests." 

The South removed the term "general welfare" from the preamble since Republicans used the term to claim the federal government had powers for their federally funded internal improvements. In the Confederate Constitution, the states had the right to recall powers delegated, not granted to Congress. The CSA's 10th amendment gave the state authority over the federal government. Due to the fact the states were sovereign, the Confederacy never even organized a supreme court.[2] When discussion in the South arose over a supreme court, William Yancy of Alabama said, "When we decide that the state courts are of inferior dignity to this court, we have sapped the main pillars of this confederacy." In The State Courts and the Confederate Constitution Journal of Southern History, J G DeRoulhac Hamilton wrote, "The fear of centralizing tendencies, past experiences under the federal supreme court, and a desire to protect states' rights led to the failure to establish a confederate supreme court." 

Further, the states, not Congress, had the power to amend the Constitution, and a state convention could occur to modify the Constitution without federal involvement. Just three states were needed to call a convention, so a minority section, as the South had been under the old Union, could prevent bullying by concentration of power within the Confederacy. 

The state officials elected senators to represent their states and appointed them to protect against federal officials, they were truly representing their states. They were not just another number to be counted in national party voting wars.[3] Confederate officials working in a state were subject to impeachment by that state. Even the country's capital would not be permanent but move from state to state to avoid centralizing power. 

There were no political parties within the Confederacy. Instead of power being handed over to bureaucrats, big industry, and private interest groups, the people would maintain control. The South, in general, disliked campaigns associated with elections, and the CSA Presidents could not be reelected for this reason. In 1861, Alexander Stephens told Virginians, "One of the greatest evils in the old government was the scramble for public offices—connected with the Presidential election. This evil is entirely obviated under the Constitution, which we have adopted."[4]

Fiscal Responsibility and Anti-Discrimination

"One leading idea runs through the whole—the preservation of that time-honored Constitutional liberty which they inherited from their fathers....the rights of the States and the sovereign equality of each is fully recognized—more fully than under the old Constitution...But all the changes—every one of them—are upon what is called the conservative side take the Constitution and read it, and you will find that every change in it from the old Constitution is conservative." 

-        Hon. Alexander H. Stephens, Speech to the Virginia Secession Convention, April 23, 1861

The Confederate constitution was more libertarian economically than the U.S. version. In her article, Cash for Combat, published in the Americas Civil War magazine, Christine Kreiser wrote, "The Confederacy was founded on the proposition that the central government should stay out of its citizen's pockets." 

The federal government was extremely limited in its spending. The Constitution required fair trade, a uniform tax code, and omnibus bills to be restricted. Because subsidies and corporate bailouts were excluded, lobbyists and bureaucrats would struggle to advance their agendas. To avoid special favors for supporters and to disrupt the lifeblood of corruption and political parties, Congress would handle each bill separately to guarantee that politicians could not sneak in favors for their supporters. This would help encourage actual statesmen to represent their local communities (states) at the federal level instead of purchasing campaigning politicians working for political parties and capitalists. 

The post office had to be self-sufficient within two years of ratification. The CSA President had a line-item veto on spending, and no cost overruns were allowed on any contracts. These changes would help to hold elected officials accountable and keep them honest. Politicians would be forced to give an actual cost to a proposed bill, and if it were to exceed the price, they would be held accountable. A failed project due to cost overruns would not only devastate those who pushed for it, but would turn the voters against any future proposed endeavors. And a greater consensus was needed to pass expenditure bills in the first place.

"The question of building up class interests, or fostering one branch of industry to the prejudice of another, under the exercise of the revenue power, which gave us so much trouble under the old Constitution, is put at rest forever under the new. We allow the imposition of no duty with a view of giving an advantage to one class of persons, in any trade or business, over those of another. All, under our system, stand upon the same broad principles of perfect equality."

-        Alexander Stephens "Cornerstone Address," March 21, 1861

Likewise, politicians could not steal from one section of the country and give to another; they could not set one section of people against another to plunder the despised section, and Congress could not foster any one branch of any industry over another. Speaking to the Virginia

Convention, Vice President Stephens said, "No money shall be appropriated from the common treasury for internal improvement, leaving all such matters for the local and state authorities. The tariff question is also settled." These changes would help stifle any internal hatred and anger caused by setting one section or party of the country against another. 

Jeb Smith is the author of Missing Monarchy: What Americans Get Wrong About Monarchy, Democracy, Feudalism, And Liberty (Amazon US | Amazon UK) and Defending Dixie's Land: What Every American Should Know About The South And The Civil War (written under the name Isaac. C. Bishop) - Amazon US | Amazon UK

You can contact Jeb at jackson18611096@gmail.com

[1] This article was taken with permission from a section of Defending Dixie’s Land: What Every American Should Know About The South And The Civil War.

[2]           Such was provided for in article III of the Confederate Constitution, but was never set up.

[3]           Of course this was also true of the United States at this time, the situation changing with the passage of the Seventeenth Amendment in 1913.

[4]           For more examples of the CSA Constitution moving to decentralization, see Redeeming American Democracy Lessons From the Confederate Constitution by Professor Marshall DeRosa; The Confederate Constitution of 1861 An Inquiry into American Constitutionalism by Marshall DeRosa;; The Constitution of the Confederate States of America Explained, A Clause-by-Clause Study of the South's Magna Carta by Lochlainn Seabrook; and The Confederate States of America, 1861—1865 by E.Merton Coulter.

How could the Confederate South have won the US Civil War?

Over 150 years after its end, the American Civil War continues to provoke debate and controversy. One of the longest running debates is whether and how the South could have won the war. Here, we explain some theories on this ever-topical subject.

The Confederate Cabinet from Harper’s Weekly, June 1861, including Confederate President Jefferson Davis in the center-right of the picture.

The Civil War was the bloodiest war ever fought on American soil. While both the armies of the Union and the Confederacy sustained devastating casualties, the American South bore the brunt of this carnage economically for years postbellum. Forty percent of the South’s livestock was killed. Over two-thirds of the South’s rails and bridges were destroyed. The direct costs to the Confederacy in human capital, government expenses, and physical destruction from the war totaled $3.3 billion. Over a quarter of Southern white men of military age died during the war, which left alarming numbers of families destitute. The end of the Civil War saw a large migration of former slaves to the cities whose dislocations caused a severe negative impact on the black population, with large numbers of sick and dead. 

With Lee’s surrender at Appomattox Court House on April 9, 1865 the American Civil War had finally reached its conclusion. In just four years, the newly formed Confederate States of America that had so confidently entered the war in defense of what they viewed as state sovereignty had dissolved back into the Union. Debates among historians continue today on what the South could have done differently to achieve victory in a war in which time was on the side of the much more industrialized North. To better understand how the South could have possibly achieved its goal of a lasting secession it is important to first consider the in some ways overwhelming strengths of the Union.

The Power of the Union

General Lee himself recorded after his surrender, “The Army of Northern Virginia has been compelled to yield to overwhelming numbers and resources…” There were 20 wholly Union/Northern states with 5 border “slave” states fighting against 11 Southern states. The passage of time on incomplete or lost records has made it difficult to estimate the exact number of soldiers on either side of the war. At best guess, the Confederate Army likely consisted of between 600,000 and 1,000,000 men. The Union was estimated to have 1,550,000 to 2,400,000 soldiers, clear numerical advantage. In addition to this, new conscripts were readily available for the North in the form of immigrants who faced such dire circumstances in their homelands that joining the Union Army seemed a better alternative. Immigration to the South was however limited due to the extensive blockade of its ports.

With industrial superiority, the Union states possessed a much greater capacity to produce armaments and the infrastructure necessary to move supplies efficiently. Financially the North also possessed a great advantage as the South’s primarily export based economy was also greatly hampered by the Union blockade.

Theories from the South and North

Many Southerners however, were convinced that they possessed superior soldiers and leadership and were fighting in defense of their homeland. Yet, some modern historians attribute the Confederacy’s loss to Lee’s aggression in offensive tactics rather than the more successful strategies of defensive approaches or even guerilla warfare after Appomattox, one of the last battles of the American Civil War. Historians hypothesize that Lee should have held the North at bay until it got tired of the clash and instead sought the route to a negotiation. Others are certain that the Confederates could have won if Atlanta, Georgia and Mobile, Alabama as well as the Shenandoah Valley, were held by them beyond the 1864 election. The Shenandoah was a strategy favored by the Confederates for its terrain that was west of the Blue Ridge Mountains, stretching from the southwest to the northeast. This route conveniently funneled troops for deployment.

Early in the war, the Confederacy had the upper hand following repeated victories. While not a complete victory like the Union later on achieved, the Confederates wanted to negotiate rather than conquer the North. By 1863, President Lincoln and his cabinet were reduced to three strategies for winning the war. First, a massive area of the Confederate States needed to be conquered and occupied, preferably the size of the whole of Western Europe. Second, the South’s infrastructure had to be demolished. Third and possibly most difficult to achieve was annihilating the South’s armies as an effective fighting force. The Union may have possessed superior manpower and material resources, being industrial while the South was mainly agricultural, but the South still had at least four well-established advantages from the start of the war that counteracted the North’s manpower and material resources.

The South’s 4 Advantages

First, a psychological benefit was associated with the Confederacy’s need to protect their family, homes, and lifestyles. It can be observed that the South possessed a more determined fighting spirit than the North on many occasions. Second, the South was filled with rivers, mountains, and swamps that acted as fortresses combined with successful deployments of armies. Third, and surprisingly, the South’s resources in life’s necessities such as livestock and corn were greater than that of the North. Fourth and most well-known, the Confederacy was abounding with cotton. Cotton would have been considered an economic or diplomatic factor as the cotton was in the hands of the Confederacy as a cash crop of substantial value. However, as the war carried on, planting was reduced and bales prepared for shipments were burned, thereby discouraging overseas exports. 

Military leadership and experience, specifically those in their respective Commander-in-Chief, was starkly contrasting between Confederate President Jefferson Davis and Union President Abraham Lincoln. Lincoln was lacking in military experience when elected president in 1860. During the Black Hawk War of 1832, he shortly served as an officer in the Illinois state militia, but saw no combat. During the Mexican-American War, Lincoln fiercely criticized President James K. Polk for hounding Mexico and engaging in western land grabs that only benefited slaveholders. During the Fort Sumter crisis, Lincoln issued conflicting orders to the navy, resulting in confusion. A humiliating Union loss at the First Battle of Bull Run took place when he put pressure on the army to mount an immediate assault on Richmond in the summer of 1861 against advice. Despite his inexperience, Lincoln was a hands-on commander-in-chief, studiously learning the business of war, testing new weapons on the White House lawn, and reading books on military strategy from the Library of Congress. 

Davis, on the other hand, had a decorated political and military career. He was a West Point graduate with seven years of service in the frontier army, a Mexican-American War veteran (wounded in battle), and Secretary of War under President Franklin Pierce. Even during his time as the Confederacy’s first president, his hunger for war never left him. During the first major battle of the war at Bull Run in July 1961, Davis fled his office in Richmond and sprinted towards the sound of the fighting, some believe with the intent of assuming the command of the troops and leading them into battle. Despite his habit of micromanaging more than Lincoln, Jefferson Davis proved an effective administrator and motivator of men. He operated under a similar command structure as Lincoln in constitutional terms. Under the Confederacy’s constitution, Davis would serve a six-year term and was forbidden from running again after that term was up.

How the South could have won

With the backgrounds of respective leaders and war advantages and motivations established, it is time to overview options the Confederacy could have taken that may have well guaranteed victory over the Union, ending the American Civil War. 

If the Confederates exported cotton as much as possible to Europe, most notably Great Britain before it sought cotton elsewhere in India or Egypt for a cheaper price, before the Union’s blockade of Confederate ports, then the Confederacy could have established lines of credit to buy war material. This could have been utilized to construct and repair the broken-down railway system to move troops and goods to critical positions. This was possible before the failed alliance with European nations was realized and trade nations like Britain conducted with the Union far outweighed the value of Southern cotton. 

Jefferson Davis had less consolidated power than his enemy and given his lack of men and resources, Davis was argued to have better served the cause by writing off large portions of the Confederacy’s scattered territory which would enable him to focus his armies around a few key areas important to the South’s survival. It has even been suggested conventional warfare should have been replaced with guerrilla warfare on Union occupation forces. Davis was never comfortable with guerrilla warfare and pursued this option to only a limited extent. For example, after the Union seized control of the Mississippi River in the summer of 1863, he permitted states west of the river to fend for themselves in the war and let “irregular” Confederate guerilla units operate without much intervention from his administration. 

The question of how the Confederacy could have won the Civil War has been debated and questioned endlessly by historians and scholars, professional and amateur. It should be recognized such a topic deserves far more discussion and study than noted in this article. Ultimately, the Union and its president won the Civil War. The Confederacy and its president lost the war and it is not difficult to foresee that a self-proclaimed nation with limited resources was bound to lose such a catastrophic war.

What do you think of this article? How could the Confederate South have won the US Civil War?