The South Was Right

by James Ronald Kennedy

  CLASSES OF CHANGES IN THE TWO CONSTITUTIONS

  In looking at the two constitutions, the United States Constitution of 1787 and the Confederate States Constitution of 1861, we cannot help but note how similar they are. Indeed, it has been said that if the war was a revolution, it was the most conservative revolution that has ever been fought. The changes in the new Confederate States Constitution from the United States Constitution can be classified into two groups: 1) changes in interpretation and 2) reform amendments.

  I. Changes in Interpretation

  The South had long felt that the North had used certain words and phrases in the United States Constitution in ways that the Founding Fathers did not intend. To correct this error, its framers wrote words and phrases into the Confederate States Constitution that would leave no doubt as to their meaning.

  No words had given the South more grief than the phrase in the preamble of the United States Constitution “We the People …” Now it should be noted that although both documents have preambles, these preambles carry no legal weight.3 Still, the preamble to the United States Constitution was seized upon early by those who wished to expand the role of the federal government at the expense of the states and of the people. The term “We the People” was cited by the centralizers as evidence that the government formed by the 1787 constitution was a general government of all the people and not a creation of the states. If this was the case, they claimed, then the central government was more powerful than the states and had authority over them. Note that the Confederate Constitution states, “We the people of the Confederate States, each State acting in its sovereign and independent character …”! This would make it impossible for anyone to doubt that the states were still sovereign and not subject to the whim of an all-powerful central government.

  It is of interest to note that the term “We the People” had given men such as Patrick Henry much concern about the nature of the government that was being formed. This was one reason he worked arduously against adoption of the 1787 constitution. “What right do they have to say ’we the people’ rather than we the States,”4 Henry would complain. But his fellow Virginian, James Madison, stated in The Federalist Papers #39 that Henry was using poor logic because everyone knew that the constitution was to be submitted to the states for ratification and not to the people. Therefore, argued Madison, the new constitution was indeed the creation of the states “acting as sovereign bodies independent of all others.”5 Although Madison’s logic won out, history has proven that Henry’s fears were to become a cruel reality.

  II. Reform Amendments

  These changes were amendments to improve the original Constitution. As such, they fall into three categories:

  1. Election reform

  2. Impeachment power reform

  3. Tax and spending power reform

  Now if you are like most modern-day Americans, you are probably thinking, “Sounds like something we need today.” After reading the Confederate States Constitution, you may indeed wish we had a similar document to guide (or restrict) the boondoggle tax-and-spend nature of our government.

  1. Election Reform.

  In both the United States and Confederate States Constitutions, Article I is the longest article. It delegates the largest portions of power to the central government and establishes the legislative branch of the central government.

  Under the original United States Constitution, the only requirement of a voter to elect a member of the House of Representatives was that he be qualified to vote in the election of the House of Representatives from the state in which he resided at the time of the election. After ratification, some states allowed non-citizens to vote in state elections. This meant that non-United States citizens could vote for members of the House of Representatives. Even today there is no way to prevent a state from allowing a foreigner to vote in state elections. The Confederate constitution sought to correct this discrepancy. In one of its first acts, the Confederate Constitution placed a limit on the states’ right to allow non-citizens to vote. The Confederate States Constitution states, “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.” Note that not only was a prohibition imposed on foreign voters for national office, but no state was allowed to let non-citizens vote.6

  Reform of the Confederate States Senate was a little different. At that time in American history, the United States and Confederate States Senators were elected by the legislature of each state. The major problem was that no time limit was set for when an election could be called to fill a Senate seat. If the Whigs came to power in a state and the United States Senator from that state had just been elected by the last legislature which was Democratic, the Senator’s seat could be put up for re-election while the state legislature was in the hands of the Whigs. This meant that the state would have one Democratic senator in Washington and one waiting for the Democrat’s seat to expire so he could move into the Senator’s seat. The new Senator could be elected five years before the other Senator’s term in office was completed. It was just plain political gimmickry. The Confederate States Constitution prevented this situation by specifying when an election for a Senator was to be held.7

  2. Impeachment Powers

  Although Article I, Section 2, of the Confederate States Constitution limited the rights of the states in certain areas of voting qualification, it also increased the rights of the states in the area of the impeachment process. In Article I, Section 2, of the United States Constitution, the sole power to impeach is held by the House of Representatives. In the Confederate States Constitution, impeachment power is given to the House 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.”8

  The effect of this law meant that any federal (Confederate) judge who had jurisdiction only within a state, or an official of the Confederate government acting only within a state, could be impeached by the state in which he was serving. Remember that the act of impeachment means only to bring charges against; the federal senate is the body which would try the case. So if a Confederate “federal” district judge (one acting only within a state) committed a crime for which he or she could be impeached, the Confederate States House of Representatives or the legislature of that state could bring charges against that judge. In the United States system, only the House of Representatives can bring charges and the Senate will try the case. The people of the states have no recourse to initiate the process of recalling a federal judge or official.9

  3. Tax-and-Spend Power

  If it were not for a growing trillion-dollar national (U.S.) debt, the reforms of the Confederate States Constitution may seem a little excessive. Is it not just a little sickening to realize that it only took seventy-five years under the Original Constitution to make the conservative South realize that more limits needed to be placed on the power of Congress to tax and spend? It is obvious that the Confederate South knew what would happen if the federal government was left to itself with the power to tax and spend. The current trillion-dollar national debt is evidence that the South was correct in its appraisal of the dangers of an all-powerful federal government that could not be made accountable by anyone.

  The Confederate States Constitution attempted to limit the danger of tax-and-spend politicians by placing necessary restrictions on the power of Congress to tax and spend:

  1. The placement of more restrictions on the purposes for which Congress could tax.

  2. The placement of more restrictions on the purposes for which Congress could spend money.

  3. The placement of a larger role in the budget process for the executive branch.

  The Commerce Clause of the United States Constitution had been used by Northerners to give certain advantages to themselves at the expense of Southerners. The North had used this clause to make improvements in roads, ca
nals, railroads, and bridges in the North, while the South was allowed few such improvements. It has been estimated that as much as a million dollars per year were collected from the South and sent North to pay for “internal improvements.” In his book, Memoirs of Service Afloat, Adm. Raphael Semmes of the CSS Alabama, states that fully three-quarters of the expense of maintaining the United States government was paid by the South.10 Little was ever returned to the South, but as Admiral Semmes pointed out, no excuse was too absurd for Yankees to make self-serving raids on the federal treasury. Even the cod and mackerel fisheries of New England were given a subsidy from the United States Treasury.11’ Therefore, the Confederate States Constitution made sure that the federal government could not use tax monies to make internal improvements.

  The General Welfare Clause of the United States Constitution was also used to enlarge the power of the federal government. The Confederate reformers attempted to limit this abuse by changing the term “promote the general welfare” in the United States Constitution to “carry on the government” in the Confederate States Constitution. One way the North promoted the general welfare was to place duties, or taxes, on imports from foreign nations who competed with Northern industrial output. This, you will recall, was the genesis of the first major conflict that South Carolina and the South had with the federal government. The Confederate States Constitution states, “Nor shall any duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry.”12 Duties could be imposed and collected, but not for the purpose of assisting some industry in its competition with foreign manufacturers.

  With the following changes, the executive branch was given a larger role in the budget process:

  1. The president was given a line item veto;

  2. The only way Congress could appropriate money not specifically requested by the president was to pass the funding with a two-thirds vote.

  No single item for the reduction of United States budget overruns has been discussed more in the last few years than the line item veto. The line item veto would allow the president to veto parts of a spending bill without vetoing the complete bill. As it now stands in the United States Constitution, the president can only veto or approve a spending bill. This means that, when a budget leaves the president’s office and goes to Congress, the members of Congress can add to it any boondoggle expenditure (i.e., make a raid on the United States Treasury; that’s our tax money) to help them get re-elected. The president cannot take any of these items out of his or her budget, only accept it with the “rider” amendments or veto the whole document. Usually the whole inflated budget is just passed on, and we the people pay—and pay dearly. Under the terms of the Confederate States Constitution, the president could use the line item veto to eliminate these unwarranted raids on the taxpayers’ money, just as do approximately thirty state governors today. Every United States president with one exception in the last twenty years has asked for the right that Jefferson Davis had under the Confederate States Constitution.13

  Congress shall appropriate no money from the Treasury except by a vote of two-thirds of both Houses, … unless it be asked and estimated for by some one of the heads of departments, and submitted to Congress by the President.14

  How long have we been listening to first the (U.S.) president and then the (U.S) Congress as they have tried to place the blame on each other because the budget is out of balance? This one little clause from the Confederate States Constitution would eliminate that escape mechanism for our politicians. If Congress wanted to spend money, it would have to have a two-thirds majority; otherwise, the spending bill would have to come from the president. We the people would know who the culprits were in the tax-and-spend game, and we could get rid of them! As effective as that clause is, there is one other clause in the Confederate States Constitution that will make a fiscal conservative jump for joy. “… Congress shall grant no extra compensation to any public contractor, officer, agent, or servant, after such contract shall have been made or such service rendered.”15 Can you imagine? No cost over-run contracts! Just think about it. When the United States government makes a contract now, you and I have our pockets picked by those who sign a contract for one price, but at the end of the contract are paid sometimes two or three times as much for that same contract. Our Confederate forefathers had the wisdom to know how to deal with that type of money-grubbing contractor.16 There go those thousand-dollar toilet seats. Too bad our present-day politicians don’t have the Confederate States Constitution to keep them honest.

  In Article II of the Confederate States Constitution, the term of the president is determined to be six years. The Confederate States Constitution changed the term of the president because it was believed that four years were too few to define and to implement presidential policy. Also, the need to run for re-election by a United States president meant that he or she would spend the first four years in office trying to please everyone just to get re-elected. Frequently a chief executive must make hard choices. A single six-year term would make those decisions easier because the president would not have to be counting votes but doing what he or she thought was best for the country. Note that after the six-year term the president could not run for re-election.17

  The judicial branch of the federal government was the most unchanged portion in the Confederate States Constitution when compared to the same portion in the original United States Constitution.

  The only major change was in what is known as diversity jurisdiction. A diversity jurisdiction is one in which a federal judge is called into action, not because some federal issue is in debate but because two individuals from different states have a legal matter at issue. Many times this has no bearing on federal law but, since it is between citizens of two different states, the matter must be decided in a federal court.

  The Confederate Constitution stripped this jurisdiction from the federal court. There has been and is a move to do the same for the United States federal courts. This change would clear the courts’ docket of many cases that should be handled at the state level and would give the federal courts more time to try cases for which they were intended.

  The final major difference between the United States and Confederate States Constitutions arises in the amendment process. The United States Constitution gives Congress the leading role in initiating the amendment process. In the Confederate States Constitution, the amendment process would be initiated by the states. When three or more states called for a constitutional convention, Congress was mandated to convene such a meeting. The convention was to be called by the states and not by the elected members of Congress. The convention could only consider such amendments as were requested by the states who called it. There would be no runaway convention called for one reason but resulting in a completely new set of laws or a new constitution. Remember, this process is how we got the original United States Constitution. The call went out to reform the Articles of Confederation, not to write a new constitution. In the amendment process, our Confederate forefathers, taking a lesson from history, placed limits on such a thing happening again.

  Once the new amendments were passed by the constitutional convention, they had to be ratified by two-thirds of the states in order to become a part of the Confederate States Constitution.18

  SUMMARY

  The Constitution of the Confederate States of America was only marginally different from the original United States Constitution. The reforms that were added to the Confederate States Constitution were done so with the insight of seventy-five years of struggle with the North. The document has been written off by many as a “State’s Rights” reactionary instrument. But, as has been clearly demonstrated, one of the first acts of this constitution was in effect to limit the power of the states in the area of state voter qualifications. The document went on to attempt to correct acts perceived by the South to have been an injustice of the Northern numerical majority over the numerical minority of the South.

  The C
onfederate States Constitution has also been rejected by those who claim that it “legalized” slavery. Only a South-hating Yankee or a masochistic Scalawag would be foolish enough to swallow that little bit of propaganda. Both the United States and the Confederate States Constitutions recognized African servitude. The only difference is that the Confederate States Constitution called a slave a slave, whereas the United States Constitution referred to slaves as “others” or “such persons.” The fact remains that, when both constitutions were submitted to the states for ratification, slavery existed in every one of their constituent states. Yes, even the Northern states contained slaves at the time of the ratification of the original United States Constitution.

  There is one major fact about slavery that makes the two constitutions stand apart. They dealt differently with the issue of the slave trade. The United States Constitution had, at the insistence of the commercial community of the North, with the assistance of two Southern states, protected the slave trade for twenty years after the adoption of the United States Constitution. It then did not stop the slave trade, but gave Congress the right to do so. The Confederate States Constitution declared a clear and unequivocal prohibition on the slave trade. It also gave the Confederate Congress the power to pass such laws as necessary to enforce the prohibition of that trade. The very first veto that President Jefferson Davis issued was of a bill he deemed in violation of the spirit of the prohibition on the slave trade, and the Confederate States Congress upheld his veto.

  One other complaint that is voiced by those ignorant of its true nature is that the Confederate States Constitution contains no “Bill of Rights.” Now, if you look only at the end of the document, you will conclude that indeed there is no “Bill of Rights.” The reason is that those rights are contained within the very document itself and were not added as some afterthought as they were in the United States Constitution. We will not list them, but you can find what we speak of in Article I, Section 9, of the Confederate States Constitution.