Comparative Constitutional Analysis, Part Two

And now for part two, where I finish the analysis and find out what we learn from it.

ARTICLE II Section 1 1. 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 reeligible. The President and Vice President shall be elected as follows:

ARTICLE II Section 1 1. The Executive power shall be vested in a President of the United States of America. He shall hold office during the term of four years, and together with the Vice President, chosen for the same term, be elected as follows:

“And the Vice President” and “chosen for the same term” are basically a phrasing difference, so I will not discuss it here. The term limit thing is an interesting one, and was likely put in place in order to decrease the incentive to do things that will get you re-elected but are bad for the country. The longer single term, of course, is supposed to make up for the lack of re-election.

2. Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative or person holding an office of trust or profit under the Confederate States shall be appointed an elector. The electors shall meet in their respective States and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as Vice President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign and certify, and transmit, sealed, to the seat of the Government of the Confederate States, directed to the President of the Senate; the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted; the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President, whenever the right of choice shall devolve upon them, before the 4th day of March next following, then the Vice President shall act as President, as in case of the death, or other constitutional disability of the President.   4. The person having the greatest number of votes as Vice President shall be the Vice President, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then, from the two highest numbers on the list, the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.   5. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the Confederate States.

2. Each State shall appoint, in such manner as the Legislature may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for each; which list they shall sign and certify, and transmit sealed to the seat of Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice President.(The clause in italics was superseded by Amendment XII) Amendment XII 1. The Electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President,           and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate; the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.   3. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such numbers be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.   But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The differences between these two sections are almost entirely the result of the Confederate constitution incorporating the Twelfth Amendment, which changed the way electoral ballots worked after Aaron Burr nearly got elected president instead of Thomas Jefferson, into the original document rather than having it as an amendment. The other differences are copyediting ones.

6. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the Confederate States.

3. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

No difference.

7. No person except a natural-born citizen of the Confederate States, or a citizen thereof at the time of the adoption of this Constitution, or a citizen thereof born in the United States prior to the 20th of December, 1860, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained the age of thirty-five years, and been fourteen years a resident within the limits of the Confederate States, as they may exist at the time of his election.

4. No person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

It’s pretty obvious here that the additions made in the Confederate constitution were the result of the drafters anticipating that other states would join them, and wanting to make sure that if they did so no one would try and challenge the constitutional eligibility of one of their inhabitants to be President.

8. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of said office, the same shall devolve on the Vice President; and the Congress may, by law, provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President; and such officer shall act accordingly until the disability be removed or a President shall be elected. 9. The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the Confederate States, or any of them.   10. Before he enters on the execution of his office he shall take the following oath or affirmation: I do solemnly swear (or affirm) that I will faithfully execute the office of President of the Confederate States, and will, to the best of my ability, preserve, protect, and defend the Constitution thereof.   Section 2 1. The President shall be Commander-in-Chief of the Army and Navy of the Confederate States, and of the militia of the several States, when called into the actual service of the Confederate States; he may require the opinion, in writing, of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offenses against the Confederate States, except in cases of impeachment.   2. He shall have power, by and with the advice and consent of the Senate, to make treaties; provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the Confederate States whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may, by law, vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.   3. The principal officer in each of the Executive Departments, and all persons connected with the diplomatic service, may be removed from office at the pleasure of the President. All other civil officers of the Executive Departments may be removed at any time by the President, or other appointing power, when their services are unnecessary, or for dishonesty, incapacity. Inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons thereof.

5 . In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected.   6. The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.   7. Before he enter on the execution of his office, he shall take the following oath or affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”   Section 2 1. The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.   2. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

It’s all minor copyediting differences until we get to the addition of clause three in section two, which is very interesting, because the Confederates put into their Constitution exactly how much power the President had over the executive branch. Essentially, he could fire cabinet officials and diplomats at will, but had to have a reason to fire anyone else, and had to report said firing and the reasoning behind it to the senate. I don’t know that I would call it a limitation on presidential power, exactly, since it doesn’t indicate that the Senate can do anything about it if they don’t like it. Also, again, note that this involves making the national authority more accountable to the body that represents the states.

4. The President shall have power to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session; but no person rejected by the Senate shall be reappointed to the same office during their ensuing recess.

3. The President shall have the power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

Again, the addition here is a limitation on the power of the executive, this time preventing him from making an end run around the Senate when they don’t like a candidate and vote them down. Once again, note that this diminishes the power of the most national office, that of the President to go against the will of the part of the government that represents the states.

Section 3 The President shall, from time to time, give to the Congress information of the state of the Confederacy,  and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them; and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the Confederate States.   Section 4 The President, Vice President, and all civil officers of the Confederate States, shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.   ARTICLE III Section I The judicial power of the Confederate States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

Section 3 He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he may receive ambassadors, and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.     Section 4 The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.   Article III Section 1 The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.

No difference, aside from some minor copyediting in Article II, Section III

Section 2 1. The judicial power shall extend to all cases arising under this Constitution, the laws of the Confederate States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the Confederate States shall be a party; to controversies between two or more States; between a State and citizens of another State, where the State is plaintiff; between citizens claiming lands under grants of different States; and between a State or the citizens thereof, and foreign states, citizens, or subjects; but no State shall be sued by a citizen or subject of any foreign state.

Section 2 1. The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and Citizens of another state, between Citizens of different states, between Citizens of the same state, claiming lands under grants of different states, and between a state, or the Citizens thereof, and foreign states, Citizens or subjects. (This section modified by Amendment XI)   XI: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state.

Most of the differences between the Confederate and US constitutions in this section are due to the Confederate constitution incorporating the 11^th Amendment directly into the original rather than having it as an amendment. The omission of “in law and equity” is a curious one, however, and I’m not sure why they left it out.

2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make.   3. The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.   Section 3 1. Treason against the Confederate States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.   2. The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.   ARTICLE IV Section 1 Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State; and the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before-mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.   3. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.   Section 3 1. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.   2. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.   ARTICLE IV Section 1 Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.

No difference.

Section 2 1. The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; 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.

Section 2 1. The Citizens of each state shall be entitled to all privileges and immunities of Citizens in the several states.

And, once again, the right to own slaves is enshrined in the Confederate constitution, even at the expense of states’ rights—within the Confederacy, a state literally could not decide to ban slavery within its borders, a position that was a step too far even for Roger Taney, author of the infamous Dred Scot v. Sanford. Given that almost every other change to the Confederate constitution either directly or indirectly enhances state power, that this is one of the few things it specifically prohibits states from doing that the US Constitution does not forbid states to do is extraordinarily telling.

2. A person charged in any State with treason, felony, or other crime against the laws of such State, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.

2. A person charged in any state with treason, felony, or other crime, who shall flee justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

The addition here doesn’t really add anything to the clause, other than perhaps put extra emphasis on the states.

3. No slave or other person held to service or labor in any State or Territory of the Confederate States, under the laws thereof, escaping or lawfully carried into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such slave belongs, Or to whom such service or labor may be due.

3. No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.

Once again, the Confederate constitution states plainly what the US constitution euphemizes, while still including the original language, as if to emphasize that under the Confederate constitution slaves are bound to their masters.

Section 3 1. 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.

Section 3 1. New states may be admitted by the Congress into this union; 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, without the consent of the legislatures of the states concerned, as well as of the Congress.

The addition here is a procedural one, but once again we see the emphasis on the states come out—it is not that two-thirds of the senators must assent, but that two-thirds of the state delegations to the Senate must assent, which is a rather different matter.

2. The Congress shall have power to dispose of and make all needful rules and regulations concerning the property of the Confederate States, including the lands thereof.

2. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.

The deletion here is peculiar, and I don’t know why it occurred.

3. The Confederate States may acquire new territory; and Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the Confederate States, lying without the limits of the several States; and may permit them, at such times, and in such manner as it may by law provide, to form States to be admitted into the Confederacy. In all such territory the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected be Congress and by the Territorial government; and the inhabitants of the several Confederate States and Territories shall have the right to take to such Territory any slaves lawfully held by them in any of the States or Territories of the Confederate States.

This clause has no equivalent in the US constitution, and I suspect was put in due to the very brief controversy over whether or not the Louisiana Purchase was constitutional. And, once again, we see that the Confederacy enshrines the practice of “negro slavery,” specifically, in its Constitution. No Missouri Compromise here—where the Confederate flag flies, slavery will be there also.

4. The Confederate States shall guarantee to every State that now is, or hereafter may become, a member of this Confederacy, a republican form of government; and shall protect each of them against invasion; and on application of the Legislature or of the Executive (when the Legislature is not in session) against domestic violence.

Section 4 The United States shall guarantee to every state in this union, a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.

The addition here, of course, is obviously an attempt to assuage the fears of those states who might want to join the Confederacy later that the CSA would not leave them high and dry if the North decided to try and bring them back into the fold.

The change from “cannot be convened” to “is not in session” is an interesting one, and while certainly not a diminution of state power, since a governor represents his state as much as the legislature does, it does bespeak more of a concern about speedy response to insurrection, since in the US constitution a governor must be able to show that the legislature cannot come together to ask for intervention, while in the Confederate constitution he need only show that the legislature is not currently meeting. I suspect this had to do with fears of slave revolts.

ARTICLE V Upon the demand of any three States, legally assembled in their several conventions, the Congress shall summon a convention of all the States, to take into consideration such amendments to the Constitution as the said States shall concur in suggesting at the time when the said demand is made; and should any of the proposed amendments to the Constitution be agreed on by the said convention, voting by States, and the same be ratified by the Legislatures of two- thirds of the several States, or by conventions in two-thirds thereof, as the one or the other mode of ratification may be proposed by the general convention, they shall thenceforward form a part of this Constitution. But no State shall, without its consent, be deprived of its equal representation in the Senate.

Article V The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which , in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided, that no amendment which may be made prior to the year 1808, shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

The differences between the amendment process for the two constitutions once again sees the Confederate constitution decreasing the power of the national government and increasing that of the individual states, and, oddly, decreasing the difficulty of amending it. Not only does the national government have no power to propose amendments nor any power to control how ratification is decided, but it only takes three states agreeing that an amendment is necessary for a convention to be called, rather than two-thirds of all the states agreeing. Further, the method of ratification, whether by legislature or by state convention, is to be decided by said convention.

However, it is also easier to amend the Confederate constitution—only two-thirds of the states are required to assent to an amendment before it becomes law, whereas in the US constitution it is three-quarters of the states. This is rather surprising, honestly, and I’m not sure why it’s the case.

ARTICLE VI 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.   2. All debts contracted and engagements entered into before the adoption of this Constitution shall be as valid against the Confederate States under this Constitution, as under the Provisional Government.   3. This Constitution, and the laws of the Confederate States made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the Confederate States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.   4. The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the Confederate States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the confederate States.   5. The enumeration, in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people of the several States.   6. The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.

Article VI                     1. All debts contracted and engagements entered into, before the adoption of this constitution, shall be as valid against the United States under this constitution, as under the confederation. 2. This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.   3. The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.     IX – The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.     X – The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The addition of the first clause in Article Six of the Confederate constitution was almost certainly included to avoid any wrangling over the legitimacy of the new government; meanwhile, clauses five and six are the result of the incorporation of the Ninth and Tenth amendments into the original body of the constitution rather than having them as amendments. The only change there is the inclusion of the phrase “of the several states,” harkening back to the “compact theory” of the US Constitution discussed back in part one.

ARTICLE VII 1. The ratification of the conventions of five States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.   2. 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.

Article VII The ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same.

When one remembers that at the time of adoption of each constitution the Confederacy had seven states and the United States had thirteen, one sees just how slavishly the Montgomery convention copied the one in Philadelphia—five out of seven is almost exactly the same percentage as nine out of thirteen.

The second clause is purely procedural.

Conclusion

So, having now gone through and looked at all of the differences between the US and Confederate Constitutions, what have we learned?

Well, to begin with, the old joke about “states’ rights to what?” actually does have an answer besides “to allow slavery,” although that mostly boils down to “the right to tell the national government where to get off.”

There’s also the fact that these guys really are procedural sticklers—a lot of the additions are meant to make it more difficult to sneak things by either Congress or the Presidency.

And yes, these guys actually did care about protective tariffs and nationally-funded internal improvements—they cared so much that they specifically prohibited both, but also cared about states’ rights enough that they also specifically wrote in that states could collaborate on them if they wanted to.

However.

The fact is that the Confederate constitution specifically enshrines slavery, specifically the slavery of black people, multiple times, and makes it very clear that trying to get rid of it is the one thing that the US constitution arguably allows states to do that the Confederate constitution absolutely prohibits, and the Confederate constitution does so every single chance that it gets.

Furthermore, none of the changes that actually make some sense are in any way worth splitting up a country, even when you add all of them up together. Imagine the utter ludicrousness of starting a chain of events almost guaranteed to lead to war over whether or not the President should have the power of the line-item veto or whether some portion of your tax dollars should pay for a road in another state. The mind boggleth.

Therefore, a comparative analysis of the Confederate and US constitutions tells us something that should be intuitive. Yes, the 1860-1861 secession and the resultant war were not caused by just the slavery issue—it was an event involving millions of people, of course they weren’t all motivated by any one thing.  However, the likelihood that, absent the slavery issue, the South would have attempted to secede or that there would have been any kind of broad-based support for secession is somewhere between slim and none.

If even that was TL;DR for you, the one sentence summary is this: the mainstream “slavery caused the Civil War” narrative is insufficiently nuanced but is basically correct.

See y’all next time.

Comparative Constitutional Analysis, Part One

Yes, back again. I’ve been holding off on this post and the next one for a little while, mostly because it seemed appropriate to release them close to the anniversary of the beginning of American Civil War.

Why?

Because these posts are going to be a comparative analysis of the US and Confederate constitutions, that’s why.

Now, an explanation is in order here. I’ve always heard that the Confederate Constitution was basically the US Constitution, just with slavery specifically mentioned, enshrined, and protected. Out of curiosity, I decided to see if that was so. Fortunately, the secessionists in Montgomery believed in “work smarter, not harder,” so there aren’t any formatting differences, and everything is basically in the same order.

And the thing is, this gets to why this kind of analysis is actually useful—the seceding states thought the basic system of governance was fine, they just thought it needed some tweaking and that said tweaking wasn’t going to happen as long as they were part of the USA. As a result, looking at the changes made to the basic governing document of the new polity can tell us a lot about what the secessionists thought was important, which can tell us a lot about why they decided to secede to begin with.

The Confederate constitution is on the left, the US constitution (as of 1861) is on the right. All parts of the former not found in the latter are highlighted in grey; all parts of the latter not found in the former are highlighted in blue, with the exception of the titles of the various articles and sections, which I have removed from the US constitution to make for easier reading and comparison. Without further ado, let’s begin.

Preamble 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.

Preamble We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, 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.

This whole thing is kind of fascinating, and gets to some of the theoretical debate surrounding the US Constitution that led to people thinking that secession was a legitimate option.

The deliberate inclusion of “each state acting in its sovereign and independent character” is an enshrinement of what was referred to as “compact theory,” which was the idea that the US Constitution was a “compact” between the states, and as a result, if some of those states didn’t like it, they could leave and the other states would have no right to stop them.

I should note here that secession then was not as unthinkable as it is today; while the 1814 Hartford Convention, held in New England as a result of the War of 1812, disavowed secession, the topic was discussed there, and William Lloyd Garrison proposed that the free states secede from the slave states so as not to be tainted by association. The notion that secession was a legitimate possibility was certainly a minority viewpoint even at the time, but it would be the Civil War that would render it the province of the lunatic fringe.

Then, of course, we have “more perfect Union” versus “permanent federal government.” The reason why this is an important difference is because of how the word “federal” was used. In those days, and in the days of Madison, Washington, and Jefferson, the idea of “federal” government meant divided government, that is, between the national government and the state governments, rather than a term for the national government of the United States. In other words, the secessionists believed that the US constitution, with its emphasis on the singular union, had too much of an emphasis on national authority and an insufficient respect for state authority—which was a claim that was not out of the mainstream, was one of the main bones of contention during the ratification process, and was one of the big debates in the early days of the republic.  

A curious deletion in the Confederate constitution is that of “common defense” and “general welfare”—while it is possible that the secessionists were just massive jerks, I find this to be a somewhat dubious reason for the deletion. I suspect that it was a way to emphasize the “divided” nature of the Confederate polity.

The final difference is that the Confederate preamble contains an explicit appeal to God; Lincoln’s Second Inaugural Address expresses my thoughts on the illegitimacy of said appeal quite well. At any rate, said appeal was probably included here for political reasons.

Article I Section I All legislative powers herein delegated shall be vested in a Congress of the Confederate States, which shall consist of a Senate and House of Representatives.

Article I Section 1 All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The only difference here is between “delegated” and “granted,” which is fairly minor definitionally, but the words do have very different connotations—something that is “delegated” to someone is usually understood to be a temporary possession, whereas a grant is usually understood to be permanent.

Section 2 1. The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall be citizens of the Confederate States, and have the qualifications requisite for electors of the most numerous branch of the State Legislature; but 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.

Section 2 1. The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the elector in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.

Worth noting here is that the Confederate constitution explicitly bars non-citizens from voting, while the US constitution does not. I am not entirely sure why.

2. No person shall be a Representative who shall not have attained the age of twenty-five years, and be a citizen of the Confederate States, and who shall not when elected, be an inhabitant of that State in which he shall be chosen.

2. No person shall be a Representative who shall not have attained the age of twenty-five years, and been seven years a Citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.

There is no minimum time of citizenship in the Confederate constitution; this was likely to have been an attempt to prevent any kind of weird nonsense resulting from someone making an issue of the fact that the Confederacy had only been in existence for a few months.

3. Representatives and direct taxes shall be apportioned among the several States, which may be included within this Confederacy, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all slaves. The actual enumeration shall be made within three years after the first meeting of the Congress of the Confederate States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every fifty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of South Carolina shall be entitled to choose six; the State of Georgia ten; the State of Alabama nine; the State of Florida two; the State of Mississippi seven; the State of Louisiana six; and the State of Texas six.

3. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

This section contains two fascinating differences. The first is the clearest—whereas the US constitution euphemizes the matter, the Confederate constitution flat-out states that the people counted as 3/5 of a person for the purposes of representation and taxation are the slaves. One wonders why they included this; I suspect it was because the secessionists were hoping to attract the Upper South, which had a lower percentage of slaves in its population than the Lower South.

Also interesting is the decrease in the maximum number of representatives that can be in the lower house; under the US constitution, theoretically, three hundred thousand people could be represented by ten congressmen, while in the Confederate constitution they could only be represented by six people. It’s an explicitly less democratic provision, and it’s not surprising—South Carolina, for example, did not allocate its presidential electors according to the popular vote until 1856.

The third difference isn’t particularly interesting, because it’s an enumeration of the number of representatives each state gets until they hold a census, and since each polity started with different states it’s just naturally going to be different.

4. When vacancies happen in the representation from any State the executive authority thereof shall issue writs of election to fill such vacancies.

4. When vacancies happen in the representation from any State, the Executive Authority thereof shall issue writs of election to fill such vacancies.

No difference here, which is unsurprising.

5. The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment; 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.

5. The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment.

The added portion in the Confederate constitution is extremely interesting, because it’s explicitly a way for states to get rid of agents of the national government that they take a sufficient dislike to. It’s a provision to defend state sovereignty against encroaching national authority, one that encourages the national government to not be completely obnoxious while also making sure that officials couldn’t be removed from office just because they happened to anger some big shot. Still, it’s pretty easy to see how this provision could cause a lot of problems even, or especially, when the national authority was engaged in legitimate intervention.

Section 3 1. The Senate of the Confederate States shall be composed of two Senators from each State, chosen for six years by the Legislature thereof, at the regular session next immediately preceding the commencement of the term of service; and each Senator shall have one vote.

Section 3 1. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years; and each Senator shall have one vote.

I’m not sure why the Confederate constitution explicitly says when the state legislatures may choose their senators while the US constitution does not; perhaps to prevent shenanigans wherein a faction might call for a snap legislative session, wait until a quorum where they had a majority was achieved, then hold a vote so their boy could be the senator?

2. Immediately after they shall be assembled, in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year; of the second class at the expiration of the fourth year; and of the third class at the expiration of the sixth year; so that one-third may be chosen every second year; and if vacancies happen by resignation, or other wise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.

2. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.

No difference.

3. No person shall be a Senator who shall not have attained the age of thirty years, and be a citizen of the Confederate States; and who shall not, then elected, be an inhabitant of the State for which he shall be chosen.

3. No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a Citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen.

Again, the only difference between the two clauses is that that the Confederate constitution lacks a minimum time requirement on citizenship.

4. The Vice President of the Confederate States shall be president of the Senate, but shall have no vote unless they be equally divided.   5. The Senate shall choose their other officers; and also a president pro tempore in the absence of the Vice President, or when he shall exercise the office of President of the Confederate states.   6. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the Confederate States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.   7. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold any office of honor, trust, or profit under the Confederate States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law.

4. The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.   5. The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of the President of the United States.   6. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: and no person shall be convicted without the concurrence of two-thirds of the members present.   7. Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law.

No difference.

Section 4 1. The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof, subject to the provisions of this Constitution; but the Congress may, at any time, by law, make or alter such regulations, except as to the times and places of choosing Senators.

Section 4 1. The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

This is one of the few times the Confederate constitution explicitly states the supremacy of the national law over state law in a way that the US constitution does not, and I’m not sure why.

2. The Congress shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall, by law, appoint a different day.

2. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they by law appoint a different day.

The only difference here is that the Confederate constitution includes the word “shall.” I have no idea why, nor do I see how this changes the meaning of the sentence.

Section 5 1. Each House shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner and under such penalties as each House may provide.   2. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds of the whole number, expel a member.   3. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House, on any question, shall, at the desire of one-fifth of those present, be entered on the journal.   4. Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

Section 5 1. Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.   2. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.   3. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgement require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one-fifth of those present, be entered on the journal.   4. Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

No difference.

Section 6 1. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the Confederate States. They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place. ‘

Section 6 1. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

No difference.

2. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the Confederate States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the Confederate States shall be a member of either House during his continuance in office. But Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department.

2. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have increased during such time; and no person holding any office under the United States, shall be a member of either House during his continuance in office.

The first difference here is that the Confederate constitution clarifies and expands on the US constitution’s provisions for when an elected official may not hold a government office, and not unreasonably so.

The second difference, however, is somewhat curious, because I’m honestly not sure what it’s for. What is the purpose of granting the congress the power to give presidential cabinet members floor privileges to discuss the effect of laws within their bailiwick instead of just putting it in the constitution?

The idea itself actually isn’t that crazy, though I can see how it could go wrong—imagine, for example, the Secretary of the Interior embarking on a filibuster to prevent a law from being passed that he thought would negatively affect his department—but giving the executive branch more of an opportunity to give information on its terms to the legislative branch doesn’t sound like a bad idea.

Section 7 1. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.

Section 7 1. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.

No difference.

2. Every bill which shall have passed both Houses, shall, before it becomes a law, be presented to the President of the Confederate States; if he approve, he shall sign it; but if not, he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return; in which case it shall not be a law. The President may approve any appropriation and disapprove any other appropriation in the same bill. In such case he shall, in signing the bill, designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceedings shall then be had as in case of other bills disapproved by the President.

2. Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the president of the United States; if he approve, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration, two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

The first difference here is purely copyediting, and I don’t know why the Confederates made it. Maybe after adding so much they decided to take the opportunity to make something shorter?

The second difference, however, is much more significant, giving to the President the power of the line-item veto, one of the few times the Confederate constitution gives a power to a national institution—the presidency—that the US constitution does not, and it’s one that a lot of presidents would have probably sacrificed their firstborn son for, or at the very least a lot of their other prerogatives. I presume that this was meant to be a strike at pork-barrel politics.

(3) Every order, resolution, or vote, to which the concurrence of both Houses may be necessary (except on a question of adjournment) shall be presented to the President of the Confederate States; and before the same shall take effect, shall be approved by him; or, being disapproved by him, shall be repassed by two-thirds of both Houses, according to the rules and limitations prescribed in case of a bill.

3. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the president of the United States; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be re-passed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Again, the difference here is copyediting.

Section 8 The Congress shall have power 1. To lay and collect taxes, duties, imposts, and excises for revenue, necessary to pay the debts, provide for the common defense, and carry on the Government of the Confederate States; but no bounties shall be granted from the Treasury; nor shall any duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry; and all duties, imposts, and excises shall be uniform throughout the Confederate States.

Section 8 The Congress shall have the power   1. To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.

The main differences here are pretty clear—protectionist tariffs are out, as are “bounties,” which I presume means “if a person produces X, the government will give them a reward.” In other words, yes, protectionist tariffs were actually an issue that the Confederates thought was important, and they did not want them.

2. To borrow money on the credit of the Confederate States.

2. To borrow money on the credit of the United States.

No difference.

3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; but neither this, nor any other clause contained in the Constitution, shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce; except for the purpose of furnishing lights, beacons, and buoys, and other aids to navigation upon the coasts, and the improvement of harbors and the removing of obstructions in river navigation; in all which cases such duties shall be laid on the navigation facilitated thereby as may be necessary to pay the costs and expenses thereof.

3. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

This is a fascinating provision, one that really emphasizes that there really was a distinctly localist take within the South. The only commercial internal improvements the national government could pay for involved making it easier for waterborne traffic to move, and even then it was supposed to be financed by money charged to those who directly benefited from it.

4. To establish uniform laws of naturalization, and uniform laws on the subject of bankruptcies, throughout the Confederate States; but no law of Congress shall discharge any debt contracted before the passage of the same.

4. To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States.

I’m not entirely sure what the difference here is supposed to be for, but I suspect that it’s to prevent non-payment of debt from being a potential casus belli for the North, and to assure bankers in the North and in Europe that they would not lose out if the Confederacy maintained its independence.

5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.   6. To provide for the punishment of counterfeiting the securities and current coin of the Confederate States.

5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures. 6. To provide for the punishment of counterfeiting the securities and current coin of the United States:

No difference.

7. To establish post offices and post routes; but the expenses of the Post Office Department, after the first day of March in the year of our Lord eighteen hundred and sixty-three, shall be paid out of its own revenues.

7. To establish post-offices and post-roads.

The Confederate post office was apparently supposed to be self-supporting; the secessionists really wanted to make sure that no one snuck in any nationally-funded internal improvements somewhere.

8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. 9. To constitute tribunals inferior to the Supreme Court.   10. To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.   11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.   12. To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years.   13. To provide and maintain a navy.   14. To make rules for the government and regulation of the land and naval forces.   15. To provide for calling forth the militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions.   16. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the Confederate States; reserving to the States, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.   17. To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of one or more States and the acceptance of Congress, become the seat of the Government of the Confederate States; and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the . erection of forts, magazines, arsenals, dockyards, and other needful buildings; and   18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the Confederate States, or in any department or officer thereof.

8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. 9. To constitute tribunals inferior to the supreme court. 10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations. 11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. 12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years 13. To provide and maintain a navy:   14. To make rules for the government and regulation of the land and naval forces 15. To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions 16. To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress:   17. To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings: And,   18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.

No difference.

Section 9 1. The importation of negroes of the African race from any foreign country other than the slaveholding States or Territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same.   2. Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or Territory not belonging to, this Confederacy.

Section 9 1. The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importations, not exceeding 10 dollars for each person.

The difference between the US and Confederate constitutions is that the latter starts off by prohibiting the trans-Atlantic slave trade and mandating the enforcement of said prohibition, and the former prevents prohibiting it for two decades, though it should be noted that the US banned the trans-Atlantic slave trade almost the moment that it was legally allowed to; also, the former euphemizes the matter while the latter makes it very clear exactly what it’s talking about.

What’s very interesting here is that it explicitly allows for the importation of slaves from non-seceding slaveholding states, but also very explicitly allows the Confederate congress to ban such trade if it decides to. This was actually big business for states like Virginia, so these provisions do two things—first, it makes it clear that they won’t automatically lose a big source of revenue if the Confederacy maintains its independence, but also holds the possibility over their heads.

3. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

2. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

No difference.

4. No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.

3. No bill of attainder or ex post facto law shall be passed.

As you can see, in this clause the Confederate constitution specifically enshrines the right to hold “negro slaves.” So if someone wanted to enslave white people or Indians, the national government might be able to ban that, but the national government explicitly cannot ban the enslavement of black people.

This is what an actual white supremacist constitution looks like.

5. No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.

4. No capitation, or other direct tax shall be laid unless in proportion to the census or enumeration herein before directed to be taken.

No difference.

6. No tax or duty shall be laid on articles exported from any State, except by a vote of two-thirds of both Houses.

5. No tax or duty shall be laid on articles exported from any state.

This is another time when the Confederate constitution gives the national government a power it does not have in the US constitution; I assume that, given that the Confederacy would have been an export economy, that this provision was meant to give it the capacity to raise revenue in the event of an emergency.

7. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.

6. No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from one state, be obliged to enter, clear, or pay duties in another.

Again, we see the localist preferences of the Confederacy at play; the US constitution specifically forbids states from mucking around with the commerce of other states, while the Confederate constitution allows it—i.e., under the US constitution, the state of Louisiana may not force a ship entering the Mississippi River to stop in New Orleans if it is sailing straight to Vicksburg, Mississippi. Under the Confederate constitution, it can. One can only imagine the shenanigans and chaos that would have ensued.

8. No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.   9. Congress shall appropriate no money from the Treasury except by a vote of two-thirds of both Houses, taken by yeas and nays, unless it be asked and estimated for by some one of the heads of departments and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the Confederate States, the justice of which shall have been judicially declared by a tribunal for the investigation of claims against the Government, which it is hereby made the duty of Congress to establish.   10. All bills appropriating money shall specify in Federal currency the exact amount of each appropriation and the purposes for which it is made; and 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.

7. No money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

The added portions here are very interesting, and actually make a certain amount of sense. Clause nine makes it harder for the legislative branch to go off on a wild tangent without the consent of the executive, while clause ten is basically a sunshine law.

11. No title of nobility shall be granted by the Confederate States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.

8. No title of nobility shall be granted by the United States: And no person holding any office or profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

No difference.

12. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and petition the Government for a redress of grievances.   13. A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.   14. No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.   15. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.   16. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.     17. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.   18. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact so tried by a jury shall be otherwise reexamined in any court of the Confederacy, than according to the rules of common law.   19. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.   20. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.

I – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.   II – A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.   III – No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.   IV – The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.   V – No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.   VI – In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.   VII – In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.   VIII – Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This section is basically the Bill of Rights put into the original document, rather than added on afterward. Clauses 12-19 of the Confederate Constitution are identical to the First through Eighth Amendments to the US Constitution, so they do not need to be further discussed.

The part that is added by the Confederate constitution is somewhat curious, and one wonders how this would have worked in practice. What constitutes “one subject?” Is the budget for the entire national government for the next year “one subject”? If not, then the budget for each cabinet department? This seems like it’s opening a major can of worms for any sort of legislation—if the vote doesn’t go your way, just go to the courts and claim the bill is unconstitutional because it covers more than one subject or that the title was misleading.

I should note here that the Confederates did not leave out the Ninth and Tenth amendments, but they are located in Article VI.

Section 10 1. No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.

Section 10 1. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

That the Confederate constitution does not prohibit states from issuing bills of credit is interesting, and I do not understand it beyond simply a compulsion to give the states more power.

2. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports, or exports, shall be for the use of the Treasury of the Confederate States; and all such laws shall be subject to the revision and control of Congress.

2. No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

No difference.

3. No State shall, without the consent of Congress, lay any duty on tonnage, except on seagoing vessels, for the improvement of its rivers and harbors navigated by the said vessels; but such duties shall not conflict with any treaties of the Confederate States with foreign nations; and any surplus revenue thus derived shall, after making such improvement, be paid into the common treasury. Nor shall any State keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. But when any river divides or flows through two or more States they may enter into compacts with each other to improve the navigation thereof.

3. No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in a war, unless actually invaded, or in such imminent danger as will not admit of delay.

Here we see once again the localistic tendencies of the Confederacy; here, in both cases, the additions to the US constitutions are both exceptions to prohibitions on state power, each designed to make it easier for states to institute their own internal improvements, which is an item of interest, as it indicates that the secessionists were less opposed to the idea of internal improvements than to the idea of people paying for them who would not directly benefit; i.e., for Mississippi and Louisiana to enter into an agreement with each other to pay to dredge the Mississippi was a fine thing, and should be encouraged, but it would be inappropriate to ask South Carolinians to pay for it.

My. That was long, but I will contend that it is not my fault that Article I is the longest part of both the Confederate and US constitutions. Next time, we’ll finish the comparisons and then look at what we learn when we look at this.