Flashback, March 1861: Confederate Congress Adopts Pro-Slavery Constitution

Declaring its principles immediately, the Provisional Congress of the Confederate States of America adopted a document that, in nearly all respects, was identical to the U.S. Constitution. The most significant differences, however, involved what the seven seceding states had in common: ownership of slaves, which received special protection.

The last two sentences are so unexceptional that, not too long ago, there would have been a “dog-bites-man” quality to them. But some events and commentary over the last year or so suggest, amazingly enough, that the place of slavery as the primary cause of the Civil War is still very much a live question.

(See, for instance, Virginia Governor Bob McConnell’s statement that he didn’t include slavery in a proclamation of Confederacy History Month because he didn’t feel that it was a “significant” factor for his state, or claims by the Sons of Confederate Veterans that slavery wasn’t the “sole” cause of the conflict.)

How, these people ask, could slavery cause the conflict when a majority of Southern whites did not own slaves, when several border states that (barely) stayed in the Union permitted slaveholding, and when so much of the North was every bit a match for the South in virulent racism?

All granted—and all beside the point.

In a prior post, I discussed how Abraham Lincoln’s Second Inaugural Address—most famous for its eloquent phrase, “with malice toward none, with charity for all”—logically identified the exact way in which slavery lay behind the origins of the war. It involved Southerners’ insistence that the institution be extended into new territories, and the resistance by Northerners to this idea. “All knew,” he said, that “somehow” slavery was the war’s cause.

Some Southern naysayers (the temptation is overwhelming to call them “slavery deniers”) would undoubtedly scoff at citing on this point Lincoln, the Confederacy’s greatest rhetorical foe. He would say such a thing, wouldn’t he? they might ask.

Contemporary Southern Voices on Slavery

But you don’t have to turn to a Northerner to see how the origins of the war were perceived in its own era. You can turn to sources impossible to turn away from—Southern ones.

I’m not even going to discuss here to all the major events of the decade before Lincoln’s election that aggravated North-South relations: the admission of slave vs. free states, the Fugitive Slave Law, Harper’s Ferry, the rise of a Republican Party that opposed slavery’s expansion to the territories, a Democratic Party torn asunder in the election of 1860 by Southern belief that frontrunner Stephen Douglas would not guarantee the introduction of slavery into lands west of the Mississippi.

No, all we have to do is look at what those who mattered in the South—the men who made the laws, who governed, who ruled with the consent of the mass of whites—said or wrote about the place of slavery in their would-be new nation.

Nearly three decades ago, one of my college professors told me he felt textbooks were “a cultural menace to our society.” I think I know what he meant. Already by that point, they were being “dumbed down” so much—so stripped of unusual language or allusions that might be grasped by reading the context of the statement—that, over time, they had become joyless to read and dead on arrival in one’s hands.

How much do high-school history courses encompass primary-document reading outside of texts? And are college history courses that much better in this regard?

I ask these questions because primary documents disclose so much. In the case of slavery as primary cause of the Civil War, they settle the issue resoundingly.

Start with South Carolina, the hotbed of antebellum secessionism. Its secession declaration, released only a few weeks after Lincoln’s election, mentioned slavery no less than 18 times! (If the subject didn’t matter, why did South Carolina keep dwelling on it?)

Slavery Without the Euphemisms

Let’s turn now to the Confederate Constitution. True, some sections, dealing with the structure of the government, departed somewhat from the document molded in Philadelphia by the Founding Fathers. (For instance, the President was limited to a single six-year term, appropriation bills had to pass higher voter hurdles, and Cabinet members were given the right to speak in Congressional debates.) 

But you couldn’t tell many sections of the two documents apart if you placed them side by side.

Except, as I’ve written earlier, those concerning slavery.

Begin with the word itself. The creators of the founding document of the Confederacy had no qualms about using it—unlike many of their descendants in the 20th and 21st centuries, who have preferred to use the far more genteel “servants,” or the Founding Fathers, who couldn’t bring themselves to name at all the African-Americans laboring against their will.

Northern delegates to the Philadelphia convention in 1787, knowing that anti-slavery sentiment was percolating in their states after a momentous war fought in the name of liberty, feared that using the term would enrage many constituents. 

At the same time, they worried that the young nation, hemmed in by foreign powers, would not survive at all without the Southern states.

In contrast, Southern delegates wanted the power and influence of their states recognized as far as possible by counting everyone within their borders as part of the census. 

Yet there were limits to their unanimity. Many Southerners were already either hoping slavery would disappear (James Madison) or moving in that direction (George Washington).

So, in the end, the South yielded to the sensitivities of the North. Thus, only three-fifths of the slave population would count in censuses; moreover, they even went along with the North’s euphemisms for slaves, i.e., “other persons,” “such persons” and “persons owing service.”

Move forward more than 70 years later, to Montgomery. Now representatives of the seceding states had no compunction about naming this group: “slaves.” In fact, “slave” or “slavery” appears 10 times in seven different clauses.

These clauses were rewritten to build firewalls around the rights of slaveowners, who in this document were guaranteed the right to take their property wherever they wanted in the states or territories. 

They even adopted the hard line of Chief Justice Roger Taney, who ruled in his notorious Dred Scott decision that the peculiar institution could never be prohibited from any territory.

The "James Madison" of the Confederate Constitution

Again, there should be no surprise in any of this. One of the Montgomery delegates, Thomas R. R. Cobb of Georgia, regarded as the "James Madison" of the Confederate Constitution (the original manuscript is believed to be in his handwriting), had written the influential Inquiry into the Law of Negro Slavery in the United States of America (1858), which not only argued that slaves, dating back to Roman times, lacked any recognition as persons but gave short shrift to the extensive manumission that occurred in ancient times.

The other Confederate delegates were fully prepared to follow Cobb’s lead. As William C. Davis noted in Look Away! A History of the Confederate States of America, elected officials in the South formed an oligarchy, largely based on requirements that officeholders own considerable property. 

The key aspect of this wasn't merely land but value. In the mountain areas of states such as Virginia, for instance, the land itself had little value for farming. Possession of slaves, then, constituted value. These officeholders were used to deference from not only slaves but even poor whites.

The most oligarchic Southern state was South Carolina, where not only did property-value qualifications rose with the office but even the election of the President was done through the legislature rather than popular vote. It was also the one gripped the most by secessionist fever. 

But elites were hardly confined to that state: 49 of the 50 Montgomery delegates were slaveowners. Many of them regarded fellow officials as, in effect, members of a club. If ever there was a self-interested founding national document, it was the Confederate Constitution.

Slavery the "Cornerstone" of the Confederacy: Alexander Stephens

Finally, we have the word of Cobb’s fellow Georgian, Alexander H. Stephens. 

Bear in mind that Stephens was as far from a fire-eater as the delegates could get. A Whig Unionist who had become friendly with Abraham Lincoln while the two served in the House of Representatives in the late 1840s, he had only yielded after his state had voted in favor of secession in the winter of 1861. 

His election as Vice-President of the Confederacy was meant to signal to the wider world that the South had seceded with only the greatest reluctance.

Yet even Stephens—what passed for a “moderate” in Montgomery—expressed his admiration for the Confederate Constitution in the most radical terms. 

In a speech in Savannah, Ga., on March 18, only a week after the Provisional Congress had adopted the document, he observed that it corrected one of the major errors of Thomas Jefferson and other statesmen of his time, that “the enslavement of the African was in violation of the laws of nature,” that they also violated “the assumption of the equality of races.”

In contrast, the Confederacy, he noted, “is founded upon exactly the opposite idea; its corner stone rests upon the great truth that the negro is not equal to the white man, that slavery subordination to the superior race is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”

The "Cornerstone" speech--which goes on to liken this "discovery" to the ideas of Galileo and Adam Smith--deserves recognition, along with James Henry Hammond's 1858 "Cotton is King" speech, as the summa of Southern self-delusion, an intellectual justification of pseudo-science by a self-interested elite that would bring untold carnage and grief in its wake to hundreds of thousands across the nation.

One Founding Document That Endured--And Another That Didn't

It took only 10 days for the Confederate Congress to debate its constitution, and only another two weeks before the required five states put the document into force through votes in favor of ratification.

It was in marked contrast to the U.S. Constitution, which required four months of deliberation and nearly another year after that before it went into effect.

But then again, the document forged in bitter behind-the-scenes disputes on slavery, reflected publicly in clauses reeking in ambiguity and embarrassment, endured far longer than the South’s version, passed with overwhelming consensus by an elite anxious to preserve its ancient privileges, and without any ambivalence over its founding principle: not just racism but the all-encompassing moral and legal subjugation based on that belief system.