As Southern States seceded from the United States and formed the Confederate States of America, the matter of transitioning the US Judiciary into the CSA Judiciary required both skill and determination. Issues of jurisdiction, personnel, legal codes, records, writs and ongoing processes had to be considered. Rather than starting de novo, the CSA Provisional Constitution mostly[i] adopted the structure of the US Judiciary and stipulated that “The Congress shall have power to make laws for the transfer of any causes which were pending in the courts of the United States, to the courts of the Confederacy, and for the execution of the orders, decrees, and judgments heretofore rendered by the said courts of the United States; and also all laws which may be requisite to protect the parties to all such suits, orders, judgments, or decrees, their heirs, personal representatives, or assignees.”[ii]
The Permanent Constitution kept intact the judiciary established under the Provisional Government,[iii] which for all intents and purposes mirrored its US counterpart in organizational structure.
However, when the CSA Provisional Constitution provided that “The Supreme Court shall be constituted of all the district judges, a majority of whom shall be a quorum, and shall sit at such times and places as the Congress shall appoint.”[iv] The CSA Permanent Constitution reverted back to the US model, “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.”[v]
The effect of the reversion was that the CSA Supreme Court was never organized, due in large measure to concerns that State supreme courts would fall victim to CSA Supreme Court judicial review, as was the case in the US.;
This raises the question as to the manner and extent that Confederate political factors produced a unique American jurisprudence, although processed through a familiar judicial organizational structure. The trajectory towards centralization resulting from the exigencies of war on the CSA no doubt impacted the political order, including the Confederate judiciaries. Nevertheless, the States’ Rights groundwork forming the basis of the CSA did get its day in court when centralization challenged it. To put it otherwise, political expediencies requisite to a successful war effort were tested in the crucibles of State courts. This may have indeed been the Achilles’ heel of the Confederate war effort, e.g., died of a theory. But to view the courts through the lens of an unsuccessful war for independence misses the point. What needs to be considered is how the CSA judicial system would have developed if there had been no war. Would it have proved to be an important crossroad in American jurisprudence? The answer to that question is an emphatic yes.
The affirmative response to the previous question stems from the distinctiveness of Southern culture and politics. The standard academic position on Southern distinctiveness is that it is mythical, part and parcel of an apologia to rationalize the South’s decision to break from the Union.[vi] This argument is nonsensical. Southern distinctiveness was the reality and the evidence is overwhelming.[vii]
That error notwithstanding, the argument is made that State constitutions, Northern and Southern, all fall within an American norm and are circumscribed in reflecting “cultural and character differences . . . Every American constitution, without exception, acknowledges some aspect of life as private and thus attributes to them no political ramifications, or at least none that are appropriately the subject of constitutional regulation.” Moreover, “the purpose of a constitution is to set out a society’s decisions about its fundamental law and to insulate those decisions from ordinary political processes by precluding changes in the constitution without supermajority approval.”[viii]
This argument naively assumes that constitutions are self-enforcing, that once established constitutional limits are not broached.
The reality is that constitutions are not self-enforcing and that checks and balances and separation of powers often misfire. Also, that the public realm often intrudes upon the private. Centralization presented the most viable threat to constitutional limits between the central and State governments. Based upon the character of the State or region, the pushback from these encroachments vary. The Southern character triggered a vehement pushback, as is evidenced by the secession movement.
But even within the Confederacy, in which the powers of the CSA Government were substantially more limited than was/is the case in the US,[ix] encroachments were frequently at the States’ doorsteps. The response to those encroachments, or the lack thereof, hinged on the character differentiation that is dismissed by Northern apologists for the war.
Anyone who doubts the Confederacy’s deference to character differentiation needs only to consider its relationship with Native Americans. The Confederacy’s acceptance of Native Americans with their respective distinct cultures and attendant judicial traditions is informative. The CSA acknowledged character differentiation, meaning that each State (or) territory within the Confederacy were distinguishable in regard to traditions and cultural values. To impose impose a judicial system on Native American communities within the CSA’s jurisdiction would be an affront to the fundamental principle of Confederate raison d’être, i.e., community self-determination. Taking cognizance of character differentiation is in stark contrast to the Northern/US nationalistic approach. The nationalistic approach views character differentiation as something to be absorbed into a hegemonic Americanism, i.e., Northern culture and values.
The Choctaw Nation detected the distinct trajectories of the Confederate and US systems. Desiring to maintain its character differentiation from extinction, in February 1861 it passed a solemn resolution stating, in part,
Resolved by the General Council of the Choctaw Nation assembled, That we view with deep regret and great solicitude the present unhappy political disagreement between the Northern and Southern States of the American Union, tending to a permanent dissolution of the Union and the disturbance of the various important relations existing with that Government by treaty stipulations and international laws, and portending much injury to the Choctaw government and people. Resolved further, That we must express the earnest desire and ready hope entertained by the entire Choctaw people, that any and all political disturbances agitating and dividing the people of the various States may be honorably and speedily adjusted; and the example and blessing, and fostering care of their General Government, and the many and friendly social ties existing with their people, continue for the enlightenment in moral and good government and prosperity in the material concerns of life to our whole population. Resolved further, That in the event a permanent dissolution of the American Union takes place, our many relations with the General Government must cease, and we shall be left to follow the natural affections, education, institutions, and interests of our people, which indissolubly bind us in every way to the destiny of our neighbors and brethren of the Southern States, upon whom we are confident we can rely for the preservation of our rights of life, liberty, and property, and the continuance of many acts of friendship, general counsel, and material support. . . .
The Confederate government was true to its principles. It not only gave non-voting representation in the Confederate Congress to Native Americans, but recognized complete title to the lands that the US Government promised, but failed to deliver. The Confederacy’s relations with the Seminole Nation is typical. “Though the Seminole Nation had never secured from the United States the customary letters-patent to the land which they were settled after their (sic) removal from Florida, the Confederates not only recognized a full and complete title to the lands but agreed to issue the neglected letters ‘under the Great Seal of the Confederate States, and signed by the President, upon parchment, so that it may not decay or its letters fade’”.[xii]
Unlike the US Government’s policies to either assimilate or exterminate Native American culture, the Confederate Government treated the Indians with guarded respect, even to the point of accepting Indians on equal terms as potential States. In what is now Oklahoma, the provisional CSA Congress passed the following “TREATY WITH CHOCTAWS AND CHICKASAWS on July 12, 1861:
ARTICLE XXVIII. In consideration of the uniform loyalty and good faith, and the tried friendship for the people of the Confederate States of the Choctaw and Chickasaw people, and of their fitness and capacity for self-government, proven by the establishment and successful maintenance by each, of a regularly organized republican government, with the the forms and safe-guards to which the people of the Confederate States are accustomed, it is hereby agreed by the Confederate States, that whenever and so soon as the people of each of said nations shall, by ordinance of a convention of delegates, duly elected by majorities of the legal voters at an election regularly held after due and ample notice, in pursuance of an act of the Legislature of each, respectively, declare its desire to become a State of the Confederacy, the whole Choctaw and Chickasaw country, as above defined, shall be received and admitted into the Confederacy as one of the Confederate States, on equal terms, in all respects, with the original States, without regard to population; and all the members of the Choctaw and Chickasaw Nations shall thereby become citizens of the Confederate States, not including, however, among such members, the individuals of the bands settled in the leased district aforesaid. Provided, That, as a condition precedent to such admission, the said nations shall provide for the survey of their lands, the holding in severalty of parts thereof by their people, the dedication of at least one section in every thirty-six to purposes of education, and the sale of such portions as are not reserved for these or other special purposes, to citizens of the Confederate States alone, on such terms as the said nation shall see fit to fix, not intended or calculated to prevent the sale thereof.[xiii]
Even while in a territorial status within the Confederacy, Indians controlled their political destinies:
ARTICLE XIV. So far as may be compatible with the Constitution of the Confederate States and with the laws made, enacted, or adopted in conformity thereto, regulating trade and intercourse with the Indian tribes, as the same are limited and modified by this treaty, the Choctaw and Chickasaw Nations shall possess the otherwise unrestricted right of self-government, and full jurisdiction, judicial and otherwise, over persons and property within their respective limits; excepting only such white persons as are not, by birth, adoption or otherwise, members of either the Choctaw or Chickasaw Nation; and that there may be no doubt as to the meaning of this exception, it is hereby declared that every white person who, having married a Choctaw or Chickasaw woman, resides in the said Choctaw or Chickasaw country, or who, without intermarrying, is permanently domiciled therein with the consent of the authorities of the nation, and votes at elections, is to be deemed and taken to be a member of the said nation within the true intent and meaning of this article; and that the exception contained in the laws for the punishment of offences committed in the Indian country, to the effect that they shall not extend or apply to offences committed by one Indian against the person or property of another Indian shall be so extended and enlarged by virtue of this article when ratified, and without further legislation, as that none of said laws shall extend and apply to any offence committed by any Indian, or negro, or mulatto, or by any white person so by birth, adoption or otherwise a member of such Choctaw or Chickasaw Nation against the person or property of any Indian, negro, mulatto, or any such white person, when the same shall be committed within the limits of the said Choctaw or Chickasaw Nation as hereinbefore defined; but all such persons shall be subject to the laws of the Choctaw and Chickasaw Nations respectively, and to prosecution and trial before their tribunals, and to punishment according to such laws, in all respects like native members of the said nations respectively.[xiv]
The Confederacy’s posture towards Indians is highly significant in understanding what might have been had war not disrupted the original Confederate political order, particularly its judicial system. The war resulted in a shift from States’ Rights towards national centralization. According to Frank E. Vandiver, “the techniques of administration and business management [President] Davis adopted during the war, the experiment he conducted in rudimentary economic planning, in social control, in national mobilization . . . represented fundamental changes in the South.”[xv] Somewhat overstated, but nevertheless the war did put to the test the Confederacy’s commitment to States’ Rights. The exigencies of the war notwithstanding, the Confederacy’s commitment to States’ Rights had a dogged persistence in the Confederacy, particularly in its judicial systems. The courts within the Confederacy were the bulwarks of character differentiation within its political order. It’s willingness to admit into the Confederacy a Native American State, i.e., a Choctaw/Chickasaw nation, makes it highly unlikely that it would tolerate the absorption of the established States into a unitary nationalism, one in which national judicial supremacy would be part and parcel.
It is notable that the CSA’s States’ Rights based judicial system did not result in chaos. To the contrary; the result was a deliberative consideration of the constitutional boundaries between the States and CSA, which explains why the CSA Supreme Court was never organized. The long-term implications of this possibility on the Confederate political order are profound when one considers the prominent role SCOTUS has played in US political development. In other words, had the Confederacy survived the Southern people and its Native American allies would not be subject to the ideological whims of nine lawyers occupying their all too powerful positions on US Supreme Court.
[i] The exception being the organization of the CSA Supreme Court: “The Supreme Court shall be constituted of all the district judges, a majority of whom shall be a quorum, and shall sit at such times and places as the Congress shall appoint” Article III, sec. 1, cl. 3 (http://avalon.law.yale.edu/19th_century/csa_csapro.asp, accessed on December 28, 2015). The Permanent Constitution reverted back to the US model: “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”, Article III, sec. 1, cl. 1 (http://avalon.law.yale.edu/19th_century/csa_csa.asp, accessed on December 28, 2015).
[ii] Ibid., cl. 4.
[iii] “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”, Article VI, sec. 1. (http://avalon.law.yale.edu/19th_century/csa_csa.asp, accessed on December 28, 2015).
[iv] Article III, section 1, clause 3, http://avalon.law.yale.edu/19th_century/csa_csapro.asp.
[v] Article 1, section 1, clause 1, http://avalon.law.yale.edu/19th_century/csa_csa.asp.
[vi] James A. Gardener, “Southern Character, Confederate Nationalism, and the Interpretation of State Constitutions: A Case Study in Constitutional Argument” (76 Tex. L. Rev. 1219), 1252.
[vii] See Susan-Mary Grant, North Over South: Northern Nationalism and American Identity in the Antebellum Era (University of Kansas Press, 2000); David Hackett Fischer, Albion’s Seed: Four British Folkways in America (Oxford University Press, 1991); and Kevin Phillips, The Cousins’ Wars: Religion, Politics, and the Triumph of Anglo-America (Basic Books, 1999).
[viii] Gardener, 1257-1260.
[ix] See DeRosa, The Confederate Constitution of 1861: An Inquiry into American Constitutionalism (University of Missouri Press, 1991).
[x] The War of the Rebellion: a Compilation of the Official Records of the Union and Confederate Armies (WR), I, ser. 1, 682; http://ebooks.library.cornell.edu/m/moawar/text/waro0001.txt; accessed on 03/06/2016; Courtesy of Cornell University Library, Making of America Digital Collection.
[xi] War of the Rebellion, 682, http://ebooks.library.cornell.edu/m/moawar/text/waro0001.txt
[xii] Seminole Treaty, Art. XLIII. The Seminole Nation paid a high price for its affiliation with the Confederacy. The US Government’s treaty with the Seminole Nation stipulated: “Whereas the Seminole Nation made a treaty with the so-called Confederate States, August 1st, 1861, whereby they threw off their allegiance to the United States, and unsettled their treaty relations with the United States, and thereby incurred the liability of forfeiture of all lands and other property held by grant or gift of the United States . . . requires a cession by said Seminole Nation of part of its present reservation, and is willing to pay therefor a reasonable price, while at the same time providing new and adequate land for them . . . (TREATY WITH THE SEMINOLE, 1866; Oklahoma State University Library, http://digital.library.okstate.edu/kappler/Vol2/treaties/sem0910.htm#mn36; last accessed on 03/06/2016. The US Government’s motive for taking the Seminole Nation’s land was sure punitive, but also pragmatic. It needed the territory “to locate other Indians and freedmen thereon” (ibid, Article 3; http://digital.library.okstate.edu/kappler/Vol2/treaties/sem0910.htm#mn8.
[xiii] The Statutes at Large of the Provisional Government of the Confederate States of America,
from the Institution of the Government, February 8, 1861, to its Termination, February 18, 1862; [Documenting the American South, [University of North Carolina at Chapel Hill, http://docsouth.unc.edu/imls/19conf/19conf.html; last accessed on 03/07/2016].
[xv] Frank E. Vandiver, Jefferson Davis and the Confederate State(Oxford: Claredon Press, 1964), 21-22.