All Commentary
Saturday, May 1, 1993

The Question Still Lives

All elected representatives of the people might do well to preserve, protect, defend, and read the Constitution of the United States every day.


Stephen Cain is a freelance historian and author who currently resides in Thailand.

After the first battle of Bull Run in 1861, Confederate President Jefferson Davis rode out to find a young relative who had been wounded and was reportedly sinking fast. After traveling many miles and witnessing painful scenes, but seldom finding the Confederate troops in the positions where his guide thought they would be, Davis decided to abandon his search.

Just as night approached, he accidentally met an officer of the relative’s unit and was directed to the temporary hospital to which the wounded of that command had been removed. It was too late. The young relative had died just before Davis arrived. Only the boy’s corpse lay before the Confederate president.

All around lay other young men suffering in different degrees from the wounds they had received at Bull Run. Davis tried to console them as best he could. He expressed sympathy to one bright, refined-looking youth from South Carolina, who appeared to be severely if not fatally wounded. The youth responded with what well might have been his last words: “It’s sweet to die for such a cause.”

Today, 132 years later, historians still debate what exactly the “cause” was that the South Carolina boy died for.

It is implausible that the boy so deeply believed that slavery was such a wonderful thing that he was proud to lay down his life for it. Confederate General Joseph E. Johnston wrote in his Narrative of Military Operations During the Civil War that the laboring “class, in the Confederacy as in all other countries, formed the body of the army.” Most Confederate soldiers were common people who did not own slaves or were too poor to have a vested interest in slavery. These men more likely fought and died for the reason given by the man most remembered for the burning of Atlanta, Union General William T. Sherman, in his Memoirs: “I always acted on the supposition that we were an invading army.”

Abraham Lincoln himself denied repeatedly that slavery was the issue in the Civil War. In his 1861 inaugural address, Lincoln said “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.”

In any case, Confederate President Davis, who to his dying day long after the Civil War remained an “unreconstructed” rebel, insisted that the central issues under contention were limited federal government and the right of a free people to withdraw from a union they had voluntarily entered (“compact” as he called it) when it no longer served their purposes, much as the Soviet republics have done in recent times.

Davis asserted that “the government of the United States broke through all the limits fixed for the exercise of the powers with which it had been endowed, and, to accomplish its own will, assumed, under the pleas of necessity, powers unwritten and unknown in the Constitution, that it might thereby proceed to the extremity of subjugation.” If Davis were alive today, he might pose some interesting questions by way of comparison with Civil War times: If Quebec votes to separate from Canada, would the rest of Canada be justified in making war on Quebec to force it to rejoin Canada? If Scotland secedes from Great Britain, which is entirely possible, should Scotland be invaded and forced at gunpoint to rejoin Britain on Britain’s terms?

One of Davis’ favorite quotations was the Tenth Amendment to the U.S. Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Confederate president begrudgingly admitted losing the Civil War on the battlefields: “We have laid aside our swords; we have ceased our hostility; we have conceded the physical strength of the Northern states.”

“But the question still lives,” wrote Davis after the war. “The contest is not over, the strife is not ended. It has only entered on a new and enlarged arena. The champions of constitutional liberty must spring to the struggle . . . until the government of the United States is brought back to its constitutional limits.”

 

Constitution of the C.S.A.

Although the Confederate government in practice ended up being far from a model of either efficient management or sound economic policy, the written basis of the alliance at least, the Confederate Constitution, embodied some ideas still relevant even today.

The permanent Constitution of the Confederate States, adopted on March 11, 1861, was mostly taken verbatim from the U.S. Constitution, with the words “Confederate States” substituted for “United States.” The preambles to both use very similar language. The words “We the people of the United States,” in one, are replaced by “We, the people of the Confederate States,” in the other; another clause, “each State acting in its sovereign and independent character” is added in the Confederate preamble. Both Constitutions comprise seven Articles, but the Confederates incorporated within them the 12 Amendments that had been made to the U.S. Constitution as of 1861 (including the first ten that are known as the Bill of Rights).

The New York Herald of March 19, 1861, wrote: “The new Constitution is the Constitution of the United States with various modifications and some very important and most desirable improvements. We are free to say that the invaluable reforms enumerated should be adopted by the United States, with or without a reunion of the seceded States, and as soon as possible.”

The official term of the Confederate president was fixed at six instead of four years, as in the original draft of the U.S. Constitution of 1787. A one-term limit applied; he could not be re-elected.

The Confederate Constitution promoted free trade by prohibiting protective duties levied for the benefit of any particular industry, which practice had previously been a source of trouble for the U.S. government. (Unfortunately, a free trade policy does one no good if one’s ports are blockaded. Lincoln ordered a blockade of Southern ports on April 19, 1861, and it became increasingly effective as the war wore on.)

The cost overruns that have plagued U.S. government contracts in recent decades were simply outlawed in plain language in the Confederate Constitution: “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.” How much could those words have saved U.S. taxpayers had they been in effect since 1861?

The Confederate president was authorized to approve any one appropriation and disapprove any other in the same bill—what is today called the line-item veto—which authority presidents Reagan and Bush have strongly advocated.

“To establish post offices” was written into both constitutions, but the Confederates added, “but the expenses of the Post-office Department, after the first day of March, in the year of our Lord, eighteen hundred and sixty-three, shall be paid out of its own revenues.”

The importation of slaves was forbidden in the Confederate Constitution, except from the other states still belonging to the United States.

Section Eight of the very first Article in the U.S. Constitution lists the powers delegated to Congress. Although the word “welfare” did not have the same connotation it often carries today—there were no “welfare payments” in 1861—it is curious to note that the Confederates eliminated the word from both Section Eight and the preamble. Instead of “To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States,” the Confederates gave their Congress the power “To lay and collect taxes, duties, imposts, and excises, for revenue necessary to pay the debts, provide for the common defense, and carry on the Government of the Confederate States.”

In the years before the Civil War, some Southern representatives in the U.S. Congress had argued that it was unconstitutional for Congress to make appropriations from the common treasury of the United States to pay for local improvements, which would commonly represent political gains for local politicians as well. The Southerners resented what they saw as the mass of such appropriations going to projects in Northern states. The framers of the Confederate Constitution thus sought to rule out “pork barrel” spending by stipulating that no “clause contained in the Constitution shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce; except for the purpose of furnishing lights, beacons, and buoys, and other aid to navigation upon the coasts, and the improvement of harbors, and the removing of obstructions in river navigation, in all which cases, such duties shall be laid on the navigation facilitated thereby, as may be necessary to pay the costs.”

A Confederate provision that was ahead of its time is one that perhaps only law librarians and researchers could fully appreciate:

“Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.”

While the Confederate Constitution has today become little more than a curiosity from a bygone age, the best news of all is that . . . .

 

The U.S. Constitution Still Lives!

Come election time, it is edifying to observe how many candidates for re-election seem to remember suddenly that there is such a thing as a U.S. Constitution. It’s a dead giveaway when a candidate begins using words that voters have not heard him or her use for the past two (or four or six) years: “reduced spending and taxes”; “free trade”; “justice”; “reduced federal interference in our lives”; “law and order”; “the American dream.”

A U.S. president, as spelled out in the Constitution, takes an oath to “preserve, protect and defend the Constitution of the United States.” But just as World War II General George Patton allegedly read his Bible every day, all elected representatives of the people might do well to “preserve, protect, defend, and read the Constitution of the United States” every day. After all, there are only seven original articles, plus the amendments.

With an informed electorate committed to individual responsibility in a free society, it may yet one day be possible to have a president, senators, and representatives, who, to the best of their ability, work to establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, secure the blessings of liberty to ourselves and our posterity, and nothing else.