During this lockdown and quarantine, I recently re-watched Ken Burns’s epic documentary series on the Civil War, serenaded with the dulcet, non-rhotic tones and mellifluous commentary of the late Shelby Foote. I also read several speeches and essays by one of our Fathers of Confederation, Thomas D’Arcy McGee. The Confederation Debates and much of the public discourse in British North America of the 1860s focuses on the Civil War and its potential consequences for Canada. Thomas D’Arcy McGee, to the extent that he endures in our national memory today at all, mostly features as the “Poet of Confederation” and for having earned the ignoble distinction of becoming the first of only three Canadian politicians ever to die by assassination. But we should also treat him as a serious political thinker and theoretician of federalism, constitutional monarchy, and parliamentary government.

The combination of Burns’s documentary and McGee’s writings prompted me to read for the first time the Constitution of the Confederate States of America, and it contained for me two surprises: first, that its text expressly rejects the “States’ Rights” narrative, which, in turn, has greatly contributed to the “Lost Cause” mythology; second, more innocuously – if it’s even possible to examine a secessionist polity steeped in slavery and expressly founded upon racial inequality in such a manner – its small concession (dare I say, surrender?) to parliamentary government.

In his Notes on Federal Governments, Past and Present from 1865, McGee effectively sums up the abomination that was the Confederate States of America:

“The distinguishing feature above all others of this Southern Constitution is that it provides for a servile, or enslaved class, as a permanent basis of power. Saying nothing in this place of the morality or immorality of such a doctrine, it is to be remarked that it is boldly, defiantly at war, with all the received opinion of Christendom.”[1]

The text of the Constitution of the Confederate States of America itself decidedly rejects the core tenets of States’ Rights, and should thus obliterate the myth that the Civil War – or the “War of Northern Aggression,” as neo-Confederates would say – was about states’ rights and academic questions of subsidiarity within a constitutionally entrenched division of powers between two orders of government. The southern states seceded, as they made clear in their declarations of secession, as a pre-emptive strike for preserving and perpetuating slavery, their “peculiar institution.” The fact that some border states of the Union retained slavery does not derogate from this view, especially considering that the Confederate States of America actually claimed Missouri and Kentucky because they were slave states. The Confederacy never claimed Ohio or Iowa.

Abraham Lincoln claimed for the first two years of the war, before issuing the Emancipation Proclamation, that the Union fought the Confederacy to reinforce the indissolubility of the United States of America and not to abolish slavery. But the declarations of secession of the several states and the Confederacy itself from the outset in 1860 and 1861 made clear that it intended to perpetuate and spread “the institution of negro slavery,” as its constitution says. Article I, Section 8, Paragraph 4 even made any statute law attempting to tamper with or outlaw slavery unconstitutional! (“No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.”) Article 4, Section 2, Paragraph 1 also provided for a perverse freedom of mobility for slavers to transport their slaves throughout the Confederacy. Furthermore, whatever the motivations of any individual Confederate soldier, the southern states seceded from the United States and re-organised themselves into a rival federation, the Confederate States of America, with the express and manifest goal of not only perpetuating slavery within their own borders, but with the additional aspiration of expanding slavery to any additional territories that it might have annexed (Article 6, Section 2, Paragraph 3). For a polity the existence of which apparently has nothing to do with slavery and everything to do with states’ rights, its constitution sure mentions slavery an awful lot.

The Confederate Constitution not only enshrines the abomination of slavery; it also deliberately quashes the key tenets of states’ rights. The preamble of the Confederacy’s constitution both plagiarises that of the US Constitution of 1787 and contains a bizarre contradiction:

We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity invoking the favor and guidance of Almighty God do ordain and establish this Constitution for the Confederate States of America.

The Confederacy at once claims to recognise the “sovereign and independent character” of each of its constituent states but then also seeks “to form a permanent federal government.” That sounds very much like a claim of indissolubility and perpetuity –despite the fact that all the states which formed the Confederacy had seceded from another federation. You could engage in a Clintonian parsing and say, “But this wouldn’t preclude the secession of a few states.” But that doesn’t sound like a policy which would secure the permanence of a federal polity and federal order of government. It sounds like a self-defeating proposition which would doom a federation to disintegration and outright dissolution. For instance, what if Virginia, which housed the capital of the Confederacy in Richmond, seceded from the Confederacy? Then they’d have to establish their federal district (Article I, Section 8, Paragraph 3) quite quickly, and perhaps keep moving it around as needed.

Furthermore, Article 6, Section 3 copies the Supremacy Clause of the US Constitution verbatim and would therefore reject the doctrine of nullification, the idea that states can, as creators of the federal order of government, decide upon the constitutionality of federal laws, and thus, in effect, not abide by them within their borders. This idea formed a key tenet of “States’ Rights.”

This Constitution, and the laws of the Confederate States made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the Confederate States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.

Overall, the preambular clause and this provision made this polity closer to an indissoluble centralised federation which bound the states together and made them subordinate in key respects to a higher order of government than to a decentralised confederation which the member-states remained free to leave. If that were the case, the Confederacy’s constitution would have said as much, like an equivalent to Article 50 in the Treaty of Lisbon, and clearly acknowledged that states can leave the Confederacy at their will. These drafters contended themselves with regurgitating the 10th Amendment of the US Constitution as Article VI, Section 6 (“The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.”), even though, in what logically must have been their view, this very wording proved insufficient to enshrine “States’ Rights” in the United States. The Confederate Framers had the chance at the Montgomery Convention to draft a constitution which boldly proclaimed “States’ Rights,” but the text shows no evidence that they did so. Nothing in the text expressly affirms this doctrine. These depraved flesh merchants instead dealt in ambiguity and innuendo.

Any reasonable purposive or textualist analysis of the Constitution of the Confederate States of America shows that it both rejected “States’ Rights” and sought to preserve and perpetuate slavery; while these slave states remained in the United States, the former merely provided a mendacious smokescreen for the latter, but the Confederacy readily dispensed with this ruse altogether. The Confederates largely plagiarised the US Constitution of 1787 — including the Supremacy Clause, which negates “States’ Rights” — but beefed it up with enthusiastic endorsements of slavery. This paragon of liberty and democracy also kept the proceedings of its Congress secret and closed throughout the entirety of its short existence; as such, no formal complete record of the proceedings of the Confederate Congress exists.[2] Neo-Confederates today call Lincoln a tyrant because he suspended habeas corpus during the Civil War. But what they neglect to mention is that Davis did the same in the Confederacy and that, furthermore, the Confederate constitution explicitly made habeas corpus provisional and not absolute (Article 1, Section 9, Paragraph 3).

Having gotten the indubitable out of the way, I’d like to turn to the more quixotic part of this constitution. In his analysis, McGee noted what he considered the three most striking differences between the US Constitution and the Confederate Constitution, the last and most important I have already dealt with:

The principal departures from the original of 1789, in the new instrument were:

1. That the presidential term should continue for six years instead of four years; while a second election is prohibited.

2. That the chief officer of each executive department may have a seat on the floor of either House, with right of speaking, but not of voting.

3. The “institution of negro slavery” as it exists, is recognised, with the right of extension into any future territory colonised from the Confederate States.[3]

McGee objected to the second point because it would, in his view, have taken the worst from both presidentialism and parliamentarism. It would have created a strange, almost semi-presidential, chimera. He said:

In the second provision, they advanced half way towards the British doctrine of ministerial accountability to the legislature; but there they halted. To give their ministers a seat merely in Congress without a vote, seems neither to attain the object of the United States system, of holding the president accountable, even to impeachment, for his Cabinet; still less does it attain the object of the British, which, by holding the head of the State inviolable, yet maintains that he shall act only on advice, and thus makes responsible the advisers.

McGee was referring to Article 1, Section 6, Paragraph 1 of the Confederate Constitution. For the most part, it directly transcribes the Ineligibility Clause of the US Constitution, which enforces a strict separation of powers between the executive and legislature by prohibiting officials in the executive branch from simultaneously serving in either house of Congress, but it tacks on intriguing and seemingly contradictory sentence at the end:

Sec. 6. (I) The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the Confederate States. They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the Confederate States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the Confederate States shall be a member of either House during his continuance in office.

But Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department.

Both the President and Vice-President of the Confederacy, Jefferson Davis and Alexander H. Stevens, respectively, wrote memoirs which shed some light on this issue. Jefferson Davis confirmed – since we can’t actually look at the Confederacy’s secret congressional proceedings– that the Confederate Congress never enacted legislation to promulgate that constitutional provision into force; Davis believed that this system “would have tended to obviate much delay and misunderstanding” between the executive and legislature.[4] Stevens (who achieved this amazing feat of appearing both baby-faced and militant at the same time) often disagreed with his president, and he would have preferred to go much further than the option that this constitutional provision left to the Confederate Congress. Stevens’ account in his history of The War Between the States (as many Southerners call the Civil War) explains the contradiction inherent with the final product and suggests that he would have agreed with Thomas D’Arcy McGee.

The change in the old Constitution which authorized Congress to pass a law to allow Cabinet Ministers to occupy seats in either House of Congress and to participate in debate on subjects relating to their respective departments was the one in which I took the most interest. The clause as it stands did not go as far as I wished. I wanted the President to be required to appoint the Cabinet Ministers from one or the other House of Congress. This feature in the British Constitution I always regarded as one of the most salutary principles in it.[5]

Stevens’ choice of words, even, betrays his Anglophilia here; he uses the British and Commonwealth term “Cabinet Minister,” when Americans usually call them “Cabinet Secretaries.” Stevens wanted what he regarded as full Cabinet Government, which contrary to popular belief does not “fuse” the executive and legislature but entails a much narrow separation and forces them to act in concert. But this would still probably have evolved into something more like semi-presidentialism in the manner of the Weimar Republic or the French Fifth Republic because the Office of President of the Confederate States of America still held the same authorities as the President of the United States and some semblance of a democratic mandate, at least more so than a hereditary Sovereign.

But this idea of allowing – even encouraging – members of the executive branch to serve simultaneously as members of Congress did not originate with Stevens in the Confederacy. It first appeared in the United States in 1833 when Joseph Story, a justice on the Supreme Court, published commentaries on the US Constitution of 1787. He despised the aforementioned Ineligibility Clause and argued that cabinet secretaries should serve as members of Congress as well so that the executive could “tak[e] ‘open and public responsibility’ and mak[e] ‘a bold and manly appeal to the nation in the face of its representatives.’” Story also argued that appointing cabinet secretaries from Congress would provide an antidote to the Spoils System then emerging and promote “‘statesmen of high public character […] who could command public confidence” instead of “‘personal and party favorites’ of ‘gross incapacity’ and ‘ignorance.’” [6] Story thought that this system would promote executive accountability, and he was right. He even used the phrase “to command confidence,” which we in the Commonwealth Realms often do. It is not a coincidence that Story’s critique emerged in the 1830s, by which time the principles of Cabinet Government– that the Sovereign acts on the advice of cabinet and that ministers take responsibility for all acts of the Crown, both individually and collectively, before the people’s representatives in the House of Commons – had firmly emerged in the United Kingdom. These ideas would later spread to the self-governing colonies in British North America and British Australasia in the 1840s and 1850s.

Furthermore, the US Congress almost forced a kind of ministerial Question Period on the Lincoln administration during the Civil War, in 1864, as a protest against “executive secrecy.” American political scientist James L. Sundquist explains:

A bill offered by Representative George H. Pendleton, Democrat of Ohio, during the Civil War proposed to authorize cabinet officials to participate in debate on matters affecting their departments and require them to be present for questioning twice weekly, at specific times.[7]

The bill died on the Order Paper, or whatever the Americans call it. The exigencies of war common to both Union and Confederacy almost spurred this evolution of American presidentialism toward semi-presidentialism. Undeterred, however, Pendleton returned to the issue in the 1880s as a Senator and fought back against the claim that the bill would have violated the Ineligibility Clause; in his view, the Constitution only prohibited executive officials from voting as members of either House of Congress but not from answering questions during congressional debates.[8] Perhaps the authors of the Confederate Constitution held the same view.

In any event, McGee was right; a system of government divided against itself, half-presidential and half-parliamentary without the best features of either, cannot stand.

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Notes   

[1] Thomas D’Arcy McGee, Notes on Federal Governments, Past and Present (Montreal: Dawson Brothers, 1865), 43.

[2] Robert G. Cleland, “Jefferson Davis and the Confederate Congress,” The Southwestern Historical Quarterly vol. 19, no. 3 (January 1916): 213.

[3] McGee 1865, 42.

[4] Cleland 1916, 214.

[5] Edmund Arthur Dodge, “Cabinet Officers in Congress,” The Sewanee Review vol. 11, no. 2 (April 1903): 129-130.

[6] James Sundquist, Congressional Reform and Effective Government (Brookings Institution Press, 2011), 58-59.

[7] Sundquist 2011, 59.

[8] Sundquist 2011, 60.