Continuity in Secession: The Case of the Confederate Constitution

Abstract

This essay examines two issues: (1) constitutional federalism in the Confederate States of America, and (2) the interpretive theories that Confederate leaders applied to the question of the relationship between their own constitution and the U.S. Constitution. In both structure and theory, the Confederate Constitution displayed what to modern eyes is surprising continuity with the U.S. constitutional regime. The specific textual provisions of the document duplicated some of the most contested language of the pre-war period. These provisions included a necessary and proper clause and a supremacy clause, both of which assumed a relatively powerful central level of Confederate government and a robust congress. Moreover, in addition to replicating some of the most nationalistic aspects of the U.S. Constitution, Confederate officials explicitly referred to themselves as the inheritors of the American Revolution. Confederate statesmen maintained not only that their government was the legitimate legal and political successor to the principles of 1776, but also that their new-modeled constitution of 1861 was a seamless continuation of the Constitution of 1789. This claim of continuity extended all the way from the text itself to the modes used to give meaning to that text. It was a claim about the mechanics of constitutional interpretation, in its most challenging form: interpretation over time, and across what southerners insisted was a break in regimes. The Confederate mode of constitutionalism was thus consciously intertemporal and inter-regime. To be sure, the explicit recognition of slavery in the Confederate Constitution was a crucial substantive difference between the original text and the inheritor. From a structural perspective, however, the relationship between center and periphery set forth in the two documents was remarkably similar.