Essential Reading: The Confederate Constitution of 1861

This review was first printed in Southern Partisan magazine in 1995.

Marshall DeRosa: The Confederate Constitution of 1861: An Inquiry into American Constitutionalism (University of Missouri Press, 1991).

Let there be no doubt, my friends. Marshall DeRosa addresses a serious and important issue. He claims the struggle for American independence was renewed and, in a sense, reached a peak during the Civil War. Contrary to the superficial accounts of the causes of the War Between the States, DeRosa squarely and forcefully addresses the primary cause of The Late Unpleasantness: constitutionalism.

Our political liberty and economic prosperity, unsurpassed in the history of mankind until the formation of the American regime, occurred because our forefathers were guided by theory and prudence. These twofold elements are seen clearly in the U.S. Constitution, the oldest existing “experiment” in self-government.

Our forefathers learned much from Greece, Rome, Christianity, and modern political writers. And they learned well how to apply the lessons of politics that history bequeathed them. But the American founders also understood that societies are organic— “theory” or “principles” cannot simply be impressed upon a people. Prudent statesmen understand that a new government must take into account a people’s tradition, religion, ability for self-rule, and economic habits.

But the experiment in republican government did not end in 1787. The current debates heard in Congress, academia, and newspapers are now all resolved in terms of the U.S. Constitution. Affirmative action, education, and states’ rights are ultimately answered by the national government and, more often than not, the Supreme Court. One must naturally wonder if this is the best alternative.

DeRosa’s fine book causes one to reexamine, from a new perspective, these important matters. No doubt that baseball strikes and murder trials are more appealing to the common American than a book on the C.S.A. Constitution. But we are in danger of losing our liberty if we ignore this more important concern. We must endeavor, always, to understand our origins and articulate not only the means of government but its goals. We should, following Mel Bradford’s sage advice, understand that the preservation of the Constitution requires that “we must remember how and why it was made.” Unfortunately, we do not always do so.

In The Confederate Constitution of 1861 Marshall DeRosa succinctly addresses the Bill of Rights, secession, and states’ rights. His book is summed up as follows:

The Confederate framers’ notion of sovereignty within a federal framework was not novel, but rather it was premised upon the eighteenth-century American Antifederalist interpretation of federalism—an interpretation antebellum Southern Democrats believed was embodied in the U.S. [Constitution]….The dispute between the North and South was over the centralization of the national government, a centralization, the Confederates maintained, wholly contrary to government “for the people.”

DeRosa enlightens us by carefully considering the “fundamental issues of 1787 and 1861.” He also reminds us that “the Southerners did not abandon constitutional government; to the contrary, they reaffirmed their commitment to constitutional government under the auspices of the Confederate Constitution.”

Indeed, what is remarkable about the C.S.A. Constitution is its similarity to the U.S. Constitution. As DeRosa repeatedly stresses, the Confederate states attempted to fulfill, not thwart, the intention of the 1787 document. However, it must be understood clearly that the key to understanding this issue lies in interpreting the founders’ intentions. DeRosa suggests that the “Federalists were persuaded that republicanism was best served by strengthening the national government at the expense of the states’ autonomy.” This view is contrary to the Southern notion that “reliable popular control was contingent upon the proximity of the rulers to the ruled.” This was the heart of the debate of 1787 and 1861.

Unfortunately we must accept the fact that the U.S. Constitution does, to a certain extent, allow for a certain amount of centralization at the national level. Why do we know this? Publius (author of the famed Federalist Papers) and the Antifederalists both agree as to the outcome of the proposed Constitution. The Antifederalist Federal Farmer, in Letter I, pointed out that the U.S. Constitution was “clearly designed to make us one consolidated government.”

This point becomes vividly clear when DeRosa examines the tricky business of judicial review and the tendency of the Supreme Court to ignore or diminish the states’ authority originally guaranteed by the Tenth Amendment. Since “the emerging American empire had neither the time for recalcitrant states nor the disposition to nurture their consent,” it chose to prostrate the states before the mighty national government. DeRosa notes that “[t]he Federalists were working toward constructing a nationalistic political and economic empire and the Confederates toward constraining one.”

What distinguishes the C.S.A. framers is their belief that states could rule themselves more justly than the federal government. Do not underestimate the importance of this theme: many of the Federalist framers did not believe that the states could act justly.

Alexander Hamilton, in Federalist 8, unabashedly claimed that the states, driven in part by a desire for “pre-eminence,” will always fight over land and economic policies. He argued that the states would soon imitate the conflicts between the European countries: “We should in a little time see established in every part of this country, the same engines of despotism, which have been the scourge of the old world.” Hamilton resolved that a strong national government was needed to check the “despotic” tendencies of the states. Passions of greed and envy will be quelled—to an extent—by turning the United States into a “commercial empire.”

The South clearly understood itself to be different from the industrial North. Hamilton blatantly states that the new Union would diminish the fundamental differences between the states. Although Hamilton does not admit it, commerce detaches the natural attachment citizens have for their traditions, communities, and families and redirects their attention to the business of making money.

Desire for pre-eminence, virtue, and piety is moderated and replaced with a uniformity of interest: profit. But this is precisely what concerned Thomas Jefferson and his fellow Southerners. Detachment from our communities leads to a “corruption of morals” and causes a “degeneracy…which soon eats to the heart of its laws and constitution.” Obviously the Southern fondness for agrarianism is rejected by the defenders of Wall Street.

The real question then becomes whether a state could secede if it no longer believed the federal government’s actions were advantageous to that state. The Southerners maintained that the U.S. Constitution was a “compact” whereby one party may secede if the other party does not fulfill its obligation. The national government did not, as South Carolina claimed, protect the interests of the Southern states. According to DeRosa, this compact theory is contrary to the Federalists’ belief that although the states have rights, they are not sovereign. The Southern states, following John C. Calhoun, interpreted the Constitution as implicitly giving the states the right of secession. The Northern states, following Abraham Lincoln, believed in consolidation of powers and denied the right of secession. DeRosa admits that the U.S. Constitution is “ambiguous” regarding this point.

Reflecting upon the constitutions of 1787 and 1861 can assist us in understanding the true meaning of constitutionalism and, more importantly, the limits of government. DeRosa rightly notes that “the contributions the Confederate framers made to past debates and what they have to offer regarding contemporary ones have been neglected.” He stresses that state governments rule themselves more efficiently and justly than a national government, precisely because the citizens of each state are capable of controlling their legislatures. He concludes by arguing that “Limited government was the Confederate ideal, and state sovereignty was more conducive to that Southern preference than was the alternative, national sovereignty.” True and proper republicanism, then, is seen more clearly in the C.S.A. Constitution than in its noble predecessor.

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