On March 11, 1861, the Confederate States of America (CSA) approved a new national constitution to serve as the nascent country’s supreme law of the land. Upon a cursory reading of the Confederate Constitution (available alongside the U.S. version at Civil Discourse), readers will notice that it is a near-copy of the U.S. Constitution. Most sections are copied verbatim or near-verbatim with small additions that initially seem insignificant. So how different are the two documents?
The answer is that the two documents contain small differences that have huge ramifications. As FSU professor Randall Holcombe notes, the Confederate Constitution was basically an amended version of the U.S. Constitution according to Confederate views of federalism and states’ rights, government overreach, and slavery — the major issues behind the American Civil War. A careful reading of the Confederate Constitution shows Holcombe’s view to be correct. The document was created to restrain federal power, curb federal spending, protect the institution of slavery from federal interference, and ensure that states remained independent and sovereign entities within the new nation through restrictions on congressional amendments. Here are the two documents’ most significant differences and why the Confederate framers made the changes.
States’ Rights Over Federal Power
The American Constitution’s preamble is fairly well-known: “We the People of the United States, in Order to form a more perfect Union…” The line stresses the formation of a larger whole from constituent sovereign parts, an idea captured in the national motto “e pluribus unum.” As noted on American Experience, it did not deny the sovereignty of states; it just stressed their unity rather than their differences. The Confederate Constitution did the exact opposite.
The Confederate preamble begins similarly to the U.S. version. The only initial difference is the substitution of “United States” with “Confederate States.” But the CSA document then shifts the importance from the Confederacy (i.e., the federal government) to its member states. The document stresses the character of the Confederacy as a voluntary union of states acting in their “sovereign and independent character” rather than an emphasis on the whole.
According to the Hendricks Lecture in Law and History, the preamble played two roles. First, it defined the states (and their rights) as the primary unit of government. It eliminated all references to the broad responsibilities of government (e.g., promoting the “general welfare”), which were viewed as starting points for federal overreach. Second, as noted by Civil War historian Kathleen Thompson on the website Civil Discourse, it justified the Confederate cause. Abraham Lincoln argued in his 1861 inaugural address (via Digital History) that states did not have the right to secede. In framing the Confederacy as a voluntary union, the Confederates highlighted that they did indeed have the right to leave the U.S.
The Confederate Constitution Invokes God
The United States Constitution makes no reference to a higher power. The Declaration of Independence references the “Creator,” who endows men with inalienable rights. As noted in the National Humanities Center, this language is deistic, but not explicitly Christian. One would expect “God the Father,” “God Almighty” or something along those lines in an explicitly Christian declaration.
The CSA Constitution instead invoked the “favor and guidance of Almighty God.” Per the National Humanities Center, the phrase was quite loaded. First, it was a clear declaration of the Confederacy’s Christian Protestant identity in a case of the merger of religious and political speech — a common feature of the Civil War era on both sides. Before 1860, religious rhetoric in politics had often been the domain of New England politicians raised in the old Puritan milieu.
Second, the phrase was a declaration that the torch of God’s favor had passed from the New England elites, who had played an outsized role in founding the United States, to the new Confederate nation in the South. Episcopalian Rev. William Butler’s sermon in Virginia best captured the sentiment: Secession and the formation of the Confederacy were an opportunity to execute God’s plans “by holy, individual self-consecration.” Thus, the Confederacy was not simply a bid to break away. It was divinely ordained to continue the American experiment. Nevertheless, the CSA Constitution (via Civil Discourse) retained the U.S. First Amendment in Article I, Sec. 9.12, forbidding federally established religion, while Article VI forbade any religious tests for office.
The CSA Constitution Mentions Slavery By Name
The United States Constitution interestingly does not use the word “slavery” anywhere in the text. As the Bill of Rights Institute notes, the Founders were conflicted and divided on the issue. The Declaration of Independence stated as one of its “self-evident truths” that all men were created equal. A man cannot own another man as property if they are indeed created equal. But as noted in the Constitutional Rights Foundation’s journal Bill of Rights in Action, the Founders had to convince the slaveholding Southern states to join or remain in the United States. Furthermore, a handful of the Founders, including George Washington, were enslavers. So they compromised and tiptoed around the issue, completely omitting the word and its derivatives from the document.
By the time the Confederate Constitution was drafted, slavery had become one of the major issues dividing the Confederacy from the United States. In fact, CSA Vice President Alexander Stephens called the idea of white supremacy over Africans a cornerstone of the Confederate nation. He also condemned the Constitution’s logical conclusion (the “equality of races”) as a major error. Given this, it is no surprise that the Confederate Constitution did not tiptoe around the issue of slavery but even partially enshrined the practice as a right.
Slavery Was Partially Enshrined As A Right
Among the most contentious issues around secession were the expansion of slavery into U.S. Western territories and freedom of movement between free and slave states. In Dred Scott v. Sandford (via Oyez), the Supreme Court ruled that enslaved people were not U.S. citizens and therefore not entitled to constitutional protections — even in free states. Exacerbating these problems were battles between pro- and anti-slavery supporters in territories such as “Bleeding Kansas” (via Britannica). Thus, the Confederacy placed some national protections on slavery with Article I, Sec. 9.4 (via Civil Discourse), which forbade infringement on slavery.
This was not the blanket protection of slavery it appears, however. Sec. 9.4 of the CSA Constitution is a list of checks on congressional power, similar to its U.S. counterpart. As FSU Professor Randall Holcombe and Notre Dame Professor Donald Stelluto both note, the section only forbade Congress from banning slavery — not the states. This position was consistent with pre-1865 U.S. attitudes, including that of Abraham Lincoln, who in 1861 argued that slavery was beyond the federal purview. States were free to forbid it, as New York and Pennsylvania did in 1828 and 1847 respectively (via Marquette University).
All that said, Confederate citizens’ kept a “right of transit and sojourn” with their slaves (Article IV, sec. 2.1 considers them property) when passing through other states, so despite no blanket protections, slavery was still clearly an important part of the Confederate state. Meanwhile, Congress maintained full authority over slavery in Confederate territories yet to achieve statehood, per Article IV, sec. 3.3.
The International Slave Trade Was Banned
Among the contentious debates of the 1787 Constitutional Convention was the importation of African people through the international slave trade. According to the Constitutional Rights Foundation journal Bill of Rights in Action, the Founders decided to shelve the issue until 1808 as a compromise. The Southern economy was heavily dependent upon slave labor, and bringing those states into the Union was going to be impossible without offering them concessions on slavery. In 1808, the Act Prohibiting the Importation of Slaves (via National Archives) was passed, and official American participation in the international slave trade ended. Interstate trade, however, was still legal.
The Confederate Constitution, drafted more than 50 years after the ban, surprisingly retained it and incorporated it as a constitutional law. It may seem counterintuitive, given that, according to the journal Louisiana History, some Confederate politicians were in favor of restarting the trade. Instead, Article I, sec 9.1 (via Civil Discourse) banned the importation of all African slaves except from the slave-holding states that had remained loyal to the USA. Section 9.2 of the same article also gave the Confederate Congress the right to regulate and ban the slave trade with the United States in the future.
So why the ban? Historian Nick Sacco has argued that the Confederacy had little choice. Although hoping to maintain slavery, it needed Franco-British support to triumph against the more populated and industrialized United States. The ban on slave trading was an overture to Britain and France, which had both abolished slavery decades before.
The President Was Limited To One Six-Year Term With A Line-Item Veto
The Confederate government was tripartite like its U.S. counterpart, but the office of the presidency developed a few small but significant differences. Most significantly, according to the CSA Constitution (via Civil Discourse), the president was limited to a single six-year term — unlike the U.S. president, who at the time could serve unlimited terms. (The two-term limit via the 22nd Amendment only passed in 1951.)
According to Notre Dame Professor Donald Stelluto, the law was meant to curb partisan politics during re-election campaigns. Incumbent politicians often made concessions to political rivals and patronage appointments that were not always in the national interest to secure re-election. By restricting the executive to one longer term, the Confederate framers argued that the president could pursue the national interest free of political pressure while restricting the national bureaucracy’s size.
The president also received a line-item veto, particularly in budgetary matters. The mechanism was meant to curb legislative abuse and appropriations giveaways to special interests. According to the Political Science Quarterly, it was the first time such a provision had been codified in North American law. (The U.S. president still doesn’t have this power.) As Prof. Stelluto notes, the veto checked congressional power and ensured that the federal government could not engage in cronyism with special interests. And if it did, the president could halt it.
The CSA Office Requirements Were A Bit More Pragmatic
According to the White House, a candidate for U.S. president must meet three requirements. The candidate must be a “natural-born citizen,” at least 35 years of age, and have resided in the United States for a minimum of 14 years before running. Article II, Sec. 1.7 (via Civil Discourse) of the Confederate Constitution had almost exactly the same requirements — except it had to fine-tune them for practical purposes.
