Although last year (1987) we celebrated the bicentenary of the United States Constitution, this year marks its ratification. In observing this anniversary, we look to the roots of American Democracy, study its origins, proclaim its successes, and contemplate reform.
Over the decades numerous reforms have been made in the form of amendments; 12 adopted in the first year of the government, and another 14 in the period from 1865 to 1971. Yet in that time only once had a general overview of the entire document been taken, with a view to overall and general reform. That occasion was the meeting in convention in Montgomery, Alabama of the delegates of those states that had seceded from the Union under the 1787 Constitution.
The 1787 Convention in Philadelphia and the 1861 Convention in Montgomery were similar in a number of ways. Both sought to remodel the nature of the federation in which they had previously been joined: the former to strengthen a weak federal government; the latter to put checks on a federal government deemed to have usurped unauthorized power. Both conventions were tied to secession. That in Philadelphia would build a new Union consisting of only such states, no less than nine, as might ratify its new constitution, despite express language in the existing constitution that the union under the Articles of Confederation was "perpetual," and that unanimous consent of the 13 States was required to amend the Articles. The Montgomery Convention was composed of states which had already withdrawn from the second union, and sought to establish yet a third.
The major difference between the two conventions was the degree to which each adhered to the mandate of its call. The Philadelphia Convention opened with delegates from seven states on May 25, 1787, coming together for the sole and express purpose of revising the Articles of Confederation, but produced a document greatly exceeding their call. Rather than a mere revision of the Articles of Confederation, an entirely new federal system was devised. The 11 states which ratified that document, in effect, seceded from the "perpetual union" of 1777, leaving North Carolina and Rhode Island behind.
The Confederate Convention, on the other hand, came together with a mandate that the new union be based upon the principles of the 1787 Constitution. The delegates in Montgomery were more restrained than their counterparts in Philadelphia, and the Constitution which was submitted for ratification in 1861 bore a great more resemblance to its parent document than did the 1787 Constitution. There was general agreement among the Southern Delegates that the failure of the old confederacy had been due to a perversion of its institutions rather than to problems inherent in those institutions. A belief in the soundness of the United States Constitution prevailed in most Southern minds. Yet there was also a determination to institute reforms, correct abuses, and remedy deficiencies that the experience of 72 years under the Constitution had indicated would be beneficial.
This article will look at these modifications as it examines the Constitution created by the Confederate Convention of 1861.
The preamble itself is non-substantive, insofar as it has never been considered as a source of any delegated power. However, as early as the ratification debates in 1787 and 1788 the language of the preamble gave rise to arguments about the nature of the Union. In the Virginia Convention, Patrick Henry had stormed, "What right had they to say We, the people, instead of We, the States?" Henry argued that such language would lead to the interpretation of the Constitution as creating a consolidated government rather than a federal union. James Madison, in No. 39 of The Federalist, argued against this interpretation, declaring that, in the act of ratification, each State acted "as a sovereign body independent of all the others, and only had to be bound by its own voluntary act." Had it been available, the journal of the 1787 convention would have shown that the preamble had originally read "We the people of the States..." naming each state, and had been approved by the Convention in that form. A problem with this language arose when the Philadelphia Convention adopted the final form of Article VII, providing for ratification by less than all of the states. This could have resulted in declaring that it was ordained and established by the people of a state who had, in fact, rejected it and were not part of the new union. Therefore, when the Committee on Style presented the final draft of the proposed constitution to the Convention, they had abbreviated this portion of the preamble to such of the states as might unite under the new constitution by the phrase, "We the People of the United States."
As time passed, however, it seems that the fears of Patrick Henry rather than the reassurances of James Madison ruled the debates on federal power. Therefore, the Confederate Convention was determined that their new constitution would be clearer on the matter. As a result, the preamble of the Constitution of the Confederate States declared that it was ordained and established by "We the people of the Confederate States, each State acting in its sovereign and independent character," and reciting that its purpose was, inter alia, "to form a permanent federal government," thereby emphasizing the federal nature of the union.
The first article of the United States Constitution is the longest and most important, containing the most inclusive grants of power to the federal government. The reforms made by the Confederate Convention under this area were directed toward three areas: election reform, the impeachment power, and congressional taxing and spending power.
Election reform was addressed by the Confederate Convention in revisions of the the first clauses of both Section 2 and 3 of Article I. Section 2 deals with the election of members of the House of Representatives. In the United States Constitution it specifies that electors for the members of the House shall have the same qualifications as those for electors of the most numerous branch of the state legislature. Before the adoption of the 15th, 19th, and 26th Amendments, voting qualifications were left entirely in the discretion of the states. It came to pass that, in the years after the adoption of the 1787 Constitution, several states extended the franchise to people of foreign birth who had not been naturalized citizens of the United States. The Confederate Convention thought this to be an improper exercise of State sovereignty, and this clause was amended to require that voters, in addition to having the aforementioned state qualifications, "shall be citizens of the Confederate States," and further, 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."
In addressing the election of senators under Section 3, the Confederate Convention again imposed a restriction on the States not found in the 1787 Constitution. The United States Constitution specified that senators were to be elected by the legislatures of the states, but no provision was made for the time at which elections were to be held. The time for senatorial elections was left open to political manipulation in the states, and the politicians took advantage of it. Often, when there was a change of dominant parties in a state's legislature, the new majority party would attempt to have federal senators elected far in advance of the beginning of the terms of office in order to ensure a senator of the 'right' party was elected. For example, in Tennessee the Democrats gained ascendancy in the legislature in the 1856 elections. In 1857 the General Assembly elected a Democrat, A. O. P. Nicholson, to succeed Whig Senator John Bell, even though Bell's term in office would not expire until 1859.
The Confederate Convention put an end to such blatant political shenanigans by inserting the constitutional requirement that the election take place "at the regular session next immediately preceding the commencement of the senator's term of office."
In the matter of election reform, the Confederate Convention placed some restrictions on State's Rights; but this was not the general trend of the reforms coming out of Montgomery. In the area of the impeachment power the role of the states in the federal scheme was increased. The fifth clause of Section 2, Article I, delegated to the House of Representatives the sole power of impeachment. This clause in the Confederate States Constitution was altered by adding the following language:
"except that any judicial or other Federal officer, resident and acting solely within the limits of any State, may be impeached by a vote of two-thirds of both branches of the legislatures thereof."
This language was designed to enable a state to begin the process of removing a federal officer who might be guilty of impeachable offenses, without waiting for actions from the Federal House of Representatives. To place this in a modern context, a state legislature would be able to enact a Bill of Impeachment against a federal district judge, whose district is solely within the bounds of one state, but not against a federal circuit judge, whose circuit encompasses several states. Final determination of impeachment was, however, still strictly a federal matter, the sole power to try all impeachments being retained by the federal Senate.
As was evident by the attention it received, the power of Congress to tax and spend was considered by the Confederate Convention to be the power most in need of reform. This was accomplished by increasing the role of the executive department in the budget-making process, by placing more express restrictions on the purposes for which Congress could levy taxes, and by placing more express restrictions on the purposes for which Congress could appropriate funds.
The role of the president in the budget-making process was expanded in two ways. The first was the introduction of the line-item veto into Section 7 of the first Article. This provision allowed the president to veto single appropriations in a spending bill without vetoing the entire bill. This provision since found its way into the constitutions of 46 states, including Tennessee, and has often been studied and urged for use in the United States.
The other area in which the role of the executive branch was expanded was in the very initiation of the budget process. The Confederate States Constitution contained a new clause specifying that Congress could appropriate no money except by a vote of two-thirds of both houses, unless the appropriation had been estimated and asked for by a department head and submitted to Congress by the president. (The expenses and contingencies of Congress and the payment of claims judicially established against the government were exempted from this provision.) This placed the burden of preparing a federal budget on the executive department. Congress could only pass a contrary spending bill by an extraordinary majority.
The most extensive restrictions on congressional power were made under Section 8 of the first Article. In the 1787 Constitution, the first clause of that article delegates to Congress the power "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." In the Confederate States Constitution this language read that the power to tax was to "pay the debts, provide for the common defense, and carry on the government of the Confederate States." The "general Welfare" clause had been one relied upon to expand the power of government, in the opinion of the Southern Convention, out of all proportion to the intent of the framers. The substitution of the phrase to "carry on the government" in place of that to provide for the "general Welfare," in the opinion of the Confederate framers, did no more than to convey in clearer language the original intent of the 1787 Constitution. The Confederate Convention went a step further in altering the language of this clause, by providing that no "duties or taxes on importation from foreign nations [shall] be laid to promote or foster any branch of industry," thereby destroying the interpretation of the Constitution allowing protectionist legislation, levying tariffs with the intent of increasing the price of foreign goods rather than for purposes of raising revenue.
A new provision adopted by the Montgomery Convention had the effect of making unconstitutional the funding of cost-overruns in federal contracts. This new 10th clause of Section 9 provided that:
"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 services rendered."
By this provision, contractors seeking Confederate contracts would have to make accurate estimates of their costs and expenses. If an underestimate had occurred, a contractor would be bound constitutionally to the contract price.
Article II
The previous section covered some reforms in the Confederate States Constitution affecting the president's role in the budget process. Reforms were also made in the office of the presidency itself, which altered the term of office and addressed civil service reform.
A great deal of discussion had been had at the Philadelphia Convention on the presidential term of office. The resulting four-year term has been under discussion ever since. Many observers felt that four years was too short a time within which a president could effectuate a distinctive line of policy, but that the politicizing effect of having the president stand for reelection created evils that were best avoided. The reform of 1861 gave the president a six-year term of office, and the president was allowed only one term of office, thereby, it was hoped, correcting both problems as found in the United States Constitution.
By 1861 great concern had arisen over the effect of the spoils system. Every time a new president came into office, all federal employees under the executive branch were subject to termination. This caused a great deal of disruption in the operation of the government, and stripped the government of the benefits of experience. As a result, the Confederate States Constitution provided that only cabinet chiefs and persons in the diplomatic corps could be replaced at the pleasure of the president. Other officers of the executive department could only be removed from office "when their services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty." Any such removals had to be reported to the Senate, along with the reason therefor.
Article III
Despite vocalized dissatisfaction with the federal court system, when the Confederate Convention had finished drafting its new constitution, the judicial article was almost untouched. Much debate was had on this article, and several attempts were made to restrict the power of the Confederate States Supreme Court to review state court decisions. All such attempts failed, and the only change coming out of the Convention was that federal courts were stripped of diversity jurisdiction, an alteration many United States District Judges would like to see in their courtrooms.
Article V
The Confederate Convention made a radical departure from the 1787 Constitution in its revision of Article V, dealing with the amendment process. The Southern States had been discouraged and disillusioned by the failure to obtain a serious consideration of amendments to the U.S. Constitution designed to remedy the problems that had caused them to leave the Union. In response, the C.S. Constitution took the institution of the amendment process out of the hands of Congress and left it solely with the states. If any three state conventions concurred in suggesting amendments, Congress was required to call a convention of all the states to consider those amendments. This convention would be limited to considering only such amendments as the initiating states had concurred in suggesting. If a majority of the states in Convention should agree on any of the proposed amendments, such proposals would be submitted to the states for ratification. The ratifications of two thirds of the states was required for an amendment to become effective.
A great deal of debate has been had over the wisdom of amending the U.S. Constitution by the convention process. Many people feared a runaway convention and the results it might produce. Indeed, there is a precedent for a runaway convention in the Philadelphia Convention of 1787. No such fears were expressed by the Confederate Constitutional Convention. Quite the contrary, the only means of amending the Confederate States Constitution was by convention. The C.S. Constitution, however, prevented the possibility of a runaway convention by allowing consideration only of such amendments as three states should concur in recommending before the convention was called.
Conclusion
The reforms initiated by the Confederate Convention did not die with Confederate independence. Many of them are alive and functioning in the constitutions of the states. Others are found at the center of modern debates on constitutional reform. The Confederate Convention was the only effort since 1787 to effect an overall reform of constitutional government on a federal level. A look into the past may be able to supply some answers for the future.
Mr. Cannon is a member of the Tennessee Bar and has published a number of articles on Confederate history and law.
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