What the Confederate Constitution Got Right

In today’s hypersensitive society, saying anything nice about the South, and especially the Confederacy, could very well be a death sentence in many job fields, not to mention academia. The clowns of “cancel culture” will be out in force. This should come as a shock to no one, for the South has always had to defend itself, first in the halls of Congress, then militarily on the battlefield, but, since 1865, in the annals of history.

For surely today the South is seen as the most defensive region in the country, but that’s because it is the most attacked and maligned region in the country. The smears and denigrations have only increased in recent years, culminating with the latest campaign to erase our past with the destruction of Confederate monuments and memorials.

It’s unfortunate that we Southerners are forced to defend ourselves, our region, our history, and most particularly the so-called “Lost Cause” against attacks from without but, sadly, also from assaults by those who should be in sympathy with us. Clearly, I’m talking about conservatives and right-leaning Republicans. But now that emotions are at a fever pitch, almost no one will defend the South and the cause of the Confederacy. These days they are running from it like the plague.

Take former Speaker of the House Newt Gingrich, for example. He represented Georgia in the US House and holds a Ph.D. in history, so, at least on paper, he might be seen as one who understands the true history of the South. Yet during an appearance on Fox News several years ago, Gingrich remarked that the Confederate flag represented those who “defended slavery and slave trading.” I was a bit surprised but not overwhelmingly so. Obviously, one could make a halfway acceptable argument on the slavery issue, but slave trading?

Since he gave no explanation, we can only assume what he intended. If he meant the domestic slave trade, that practice had been ongoing since colonial days and involved every slave state in the Union, even those that remained loyal during the war but also the Northern colonies, and later states, when the institution was still legal in that region. In fact, there were slave auctions in Kentucky, for example, in November 1865.

American participation in the international slave trade, by far the worst, came to an end in 1808 by an act of the US Congress. And in 1861, the Confederate Constitution outlawed the foreign slave trade. In fact, the first bill vetoed by Jefferson Davis involved that detestable exchange. The President of the Confederacy had no desire to re-open the international slave trade. These facts are seldom, if ever, mentioned by court historians.

Rich Lowry, the editor of National Review, wrote an article a few years ago entitled “Mothball the Confederate Monuments,” arguing that there is “no reason to honor Jefferson Davis, the blessedly incompetent president of the Confederacy. New Orleans just sent a statue of him to storage — good riddance.” I guess we should expect as much from a man who wrote a book in praise of Lincoln and credited him for “saving the American Dream.”

There is no good reason to denigrate President Davis over these current issues, especially by one who clearly has no understanding of the man or his presidency and the enormous difficulties he faced in trying to win independence for the South. It is only because of his fear of the slavery issue that Lowry made such inappropriate remarks.

Jefferson Davis was a man greatly respected in the United States before the war, far more than Lincoln. If a nationwide poll could have been taken in 1860, the vast majority of Americans would have recognized Mr. Davis, but Mr. Lincoln not so much.

Davis had tremendous experience in government – a West Point graduate, military service in the army during the Mexican War, election to both houses of Congress, and a term as US Secretary of War under Franklin Pierce, a stint that has been praised by many historians as one of the best in American history. His restructuring and modernizing of the US army created the nucleus that Lincoln later transformed into the largest army in the world. So, Davis was an obvious choice to lead the new Southern nation, and to be able to hold it together for four exhausting years against overwhelming odds is a feat worthy of praise, not derision.

As for slavery, it was legal and protected in the Confederacy; this much is true. But it was also legal in the United States and had been in America since the earliest colonial days, including the four years of “civil war,” and remained so throughout Lincoln’s life. In fact, Lincoln did more to protect slavery – by pushing for the Corwin Amendment – than he ever did to abolish it. Slavery was only abolished in December 1865 with ratification of the 13th Amendment. This was eight months after his assassination. In short, the US flag flew over legalized slavery, and the international slave trade, far longer than did the Confederate flag.

But in our current politically correct climate, it is becoming nearly impossible, as well as undesirable, for anyone to defend the Southern government. The very minute anyone says anything remotely positive about the Confederacy, they are immediately attacked with two of the biggest and sharpest arrows in the PC quiver: the race card and the slavery card. How can one have a reasoned argument with anyone who, just minutes into the discussion, attacks with accusations of racism? This has caused people on our side of the political spectrum to run in sheer terror and distance themselves from any association with the Confederacy. Being painted with such a brush is too much for many to bear.

Those who are so critical of the South and the Confederacy, whether on the political Left or the Right, are guilty of “presentism,” which is the application of modern thoughts and attitudes to interpret the past. In other words, judging past generations with current thinking. Yes, slavery is abhorrent to rational people today, but in the mid-nineteenth century it was not seen in so negative a light. Attitudes were certainly changing by the 1860s, but slavery was a fact of life in the United States, as it had been around the world throughout all of human history. With abolitionists in the extreme minority, and not nearly so accepted in the North as establishment historians and Hollywood might have you believe, most Americans at the time had an attitude of passive indifference, particularly Northerners.

So, if we can separate emotions from logic, then we can have a rational discussion and defend aspects of the Confederate government without supporting slavery. No respectable person today is arguing in favor of slavery, while attacks on anyone for supposedly doing so is just another example of race-baiting, which is as bad as racism. For in our modern era, racism is seen, quite correctly, as the vilest mindset one can have, so by accusing someone of it, especially without any evidence and for simply holding a different opinion on a historical question, is just as revolting.

With that in mind, Southerners can praise our Confederate forebears for the vision they had for governing their republic and the protections they built into their Constitution to ensure the new country remained true to its principles. In short, Southerners, through the Confederacy, sought to keep Jefferson’s Republic alive from political forces bent on killing it. And, with the loss of the Confederacy, those Lincoln forces succeeded in killing it.

In Jefferson’s America, which lasted roughly six decades, the states had a tremendous amount of autonomy. The country was highly decentralized. Through most of those sixty years, there were no internal federal taxes, very low tariffs, no standing army, almost no national debt, a constitutional treasury system, and a belief in a strict interpretation of the Constitution and a strong emphasis on the Bill of Rights. It was among the freest and most prosperous places on Earth.

Lincoln’s America, and the Republican political vision for the future, was quite the opposite, comprising a centralized nation consisting of internal taxes, high tariffs, a standing army, profligate spending and a national debt, a national banking system, a fiat currency, federal funds for internal improvements, aid to business, and a great emphasis on Northern manufacturing. And when Northern citizens questioned Lincoln’s War, many were jailed without charges or trial, including newspaper editors who printed critical opinions. Similar attacks on civil liberties did not occur in the Confederacy.

The South sought to keep Jefferson’s governing vision in place and the only way that could be accomplished was through secession and building an independence nation of their own. So, in 1861 the Confederacy was born with a constitutional convention in Montgomery, Alabama.

The Confederate Constitution crafted by the Southern Framers was nearly identical to the US Constitution except for some important changes, which only made the Confederacy more Jeffersonian, not less.

Let’s briefly examine a few:

1. The states were greatly strengthened and better protected against federal encroachment. One of the great complaints about the Tenth Amendment was that it did not contain a remedy for the states to employ when the federal government overstepped its bounds. Thomas Jefferson, James Madison, and John C. Calhoun advocated nullification, with Calhoun devising a practical application for a state to nullify federal laws. The Confederate Constitution did not contain a provision for nullification but gave the states an even stronger power – impeachment. The individual states, through their legislatures, could remove any federal official, whether a judge or some other officer, from the boundaries of that state by impeachment, thus assuring the Confederate government could not police any of the individual states.
2. Protective tariffs were outlawed. A centerpiece of Lincoln’s mercantilist economic policy was his passionate belief in high protective tariffs. As he once said as a young man, “Give us a protective tariff and we will have the greatest country on earth.” He was poised to raise tariffs to the highest rates in US history. And he did so, increasing the tax multiple times as President. Lincoln was obsessed with economics and wanted to enact all of Henry Clay’s American System. This is what the South feared above all else. Their past experience with such policies had resulted in economic hardship for their largely agricultural region.

The South’s longstanding economic argument on trade was this: A tariff is a tax on imports for the purpose of gaining revenue to run the legitimate operations of the federal government. Raising tariffs for the purpose of protecting favored industries was not the intent of the founders because it placed the federal government in a position of picking and choosing industries to protect, and that practice, along with Hamiltonian subsidies, what he called “bounties,” to businesses, was inherently corrupt.

So, the Confederate Constitution prohibited it: “nor shall any duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry.”

3. Government spending was strictly controlled. Under the Confederate Constitution, many safeguards were built into the system to guarantee tax dollars were spent in accordance with the powers granted to Congress. Aside from a few special situations, all regular appropriations, such as a budget, required a two-thirds vote of both houses of Congress. Spending within a state, what was then called “internal improvements,” usually enacted to “facilitate commerce,” was prohibited. Both of these changes would have ensured that our current corrupt practice of “earmarks” would, most likely, never have developed.

Another change that would also have helped end corrupt practices is often overlooked: “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.”

The importance of this provision cannot be overemphasized. There have always been massive cost overruns and the inevitable fraud associated with government spending projects. In 1838 Senator John C. Calhoun spoke about it on the Senate floor: “We all knew when a public building was once commenced that it was never finished under five times the original estimate.” The Confederacy wanted to put an end to so disreputable of a practice.

And if you consider this provision along with the ban on both protective tariffs and funding for internal improvements, it would have been next to impossible for the ongoing concept of “crony capitalism” to have materialized in the Confederacy.

The President was also given a line-item veto so that specific items in a spending bill could be rejected, which would have also helped end earmarks and crony capitalism. There was also no “general welfare clause” in the Southern Constitution, which has been abused by politicians in our day, giving them the excuse to spend money and reward their friends and constituents with tax dollars.

4. Structural changes. The President had a six-year term but could only serve one, which would save the country from nasty re-election bids, and cabinet officers could speak on the floor of Congress but could not vote, so the executive branch could make their case on appropriations and laws that were needed to run their departments.

The document made it more difficult to admit new states because it took a two-thirds vote of each house of Congress, rather than a simple majority, which, had that provision been included in the US Constitution, might have averted the war because the small republic might not have expanded, and it was territorial expansion that caused so much turmoil, just as Calhoun warned it would.

The Confederate Constitution was also easier to amend because it only took three states to call a convention to consider new amendments.

It also protected the integrity of the ballot and the innate corruption therein, for it decreed that “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.” And that has been a problem throughout our history.

And, lastly, it essentially outlawed “Omnibus Bills” that today can run to thousands of pages and encompass everything Congress can think of. But listed under the restrictions placed on the Confederate Congress is this little-known gem: “Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.” Quietly sticking unpopular, and unrelated, items in a massive bill would be impossible.

Setting slavery, emotions, and presentism aside, can any reasonable person, especially anyone calling themselves a conservative, object to any of these changes? Would not our country benefit today if we adopted at least some of them?

We have no way of knowing what kind of country the Confederacy would have been, since the entire history of the short-lived Southern republic, save a few early months, was beset by invasion, total war, and conquest. We can rest assured, however, that slavery would have soon died an early death, as it was in the process of doing around the world, and would have eventually ended in the Southern Confederacy as well. Economics and technology, as well as changing attitudes, would have made sure of that.

We can also rest assured, without much debate or discussion, that Lincoln’s purpose was the end of Jeffersonian governance and they achieved it at the point of a bayonet. Lincoln’s objective, and that of his party, was not to “save the Union” of our fathers but to destroy it and to build a centralized mercantilist empire in place of Jefferson’s Republic. The South saw Lincoln and the Republicans for who they were and no longer wished to remain a part of this transformation of the American Union. So they withdrew, standing on the same principle of self-determination their colonial forebears stood on in 1776.

But the South’s attempt at self-government failed, not because of the flaws in Jeffersonian governance but because of an illegal invasion by a superior power. The Confederates fought valiantly against overwhelming odds for their independence. That is why the Confederate battle flag is seen around the world as a symbol of defiance of tyranny. The example of our Southern forefathers should be one of honor, right along with our colonial ancestors, and not one of shame and disgrace. They tried to protect the Jeffersonian Ideal but, as Lincoln desired, it has perished from the Earth.

The views expressed at AbbevilleInstitute.org are not necessarily the views of the Abbeville Institute.

Ryan Walters

Ryan S. Walters is an independent historian who lives and writes in North Texas. He is the author of five books, including The Jazz Age President: Defending Warren G. Harding. He can be reached at ryanswalters.net.

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