Confederate Constitutionalism

[David Ireland]

My understanding is that the proposed rebel constitution was almost exactly the same as the federal Constitution albeit with a few more protections for slavery, a bit less centralization, and an express prohibition on protective tariffs. Is this true?

Who were the primary people involved in drafting this document, and can we read their speeches debating this like we can the Philadelphia and state conventions in the 18th Century? What's the best book on confederate constitutionalism?

Am I wrong to understand the rebels as mostly just longing to reinstate the Articles of Confederation and to undo the Federalist Constitution of Hamilton, Randolph, Marshall, and early Madison before he became hostile to Marshall's vision?

Did Marshall have any children or grandchildren who fought?

 

[OpnCoronet]

A lot of questions requiring deep study and discussion in their own right.

As to the Confederate sense of Constitutionalism; I think, at its most basic core, is their belief that it was the individual states that created the U.S. Constitution, rather than all the people who chose to be governed by it.

I believe there is a library of many past discussions on this very subject, a person really interested in this particular subject will find it quite detailed and informative.


P.S. The Constitutional Convention in Philadelphia, was secret and had no official record. We know what we know of it, due to the writings of participants from their notes and memories. James Madison was the only one, I belie, who kept and complete and detailed recording of the sessions and, by his request, was not published until after the deaths of all the participants.

 

[Rusk County Avengers]

The notion that the CS Constitution was just the US one with "Confederate States" inserted is a terrible miscarriage of history that needs to be swept into the dustbin. There are quite a number of differences some bad, others exceptionally great in my opinion that would be wonderous today. But that's an opinion, many would have a different one.

For example:
1. God deliberately inserted into the preamble
2. Presidency limited to one 6-year term
3. Explicit protections for slavery, though it leaves abolition open but only to the States to decide
4. Congressional bills had to be on ONE subject and nothing could be added on
5. The CS Government couldn't make any laws or bill restricting or benefiting an industry, or by extension a company (No lobbyism by industrial/corporate interests in modern terms)
6. Line item veto
7. If I remember right, State courts could override Federal courts under certain circumstances
8. Money appropriated from one State could not be spent on improvements in another State
9. In a Congressional bill, the exact amount of money had to be specified in the bill and where it was going
10. The US Bill of Rights is copied pretty much exactly, however the main difference is that instead of being a separate document. they integrate it directly into the CS Constitution as its own section

And a bunch of other small, easily overlooked stuff. Sometimes just different wording for the same thing.

Here is a pretty good online comparison:

Constitutions of the United States and Confederate States: A Comparison — Civil Discourse

When the new Confederate States came together to form a constitution, they based it on the U.S. Constitution with some revisions it to account for amendments, legislation, and events that had happened since the first document was written. They also added sections and language that specifically prote

civildiscourse-historyblog.com

As for who and where, its still too early in the morning after a long hard week for me to remember those specifics. But basically representatives from the original seven seceded States, most if not all were representatives of their States in the US Congress, they met in Montgomery Alabama and when they sat down and wrote the CS Constitution they were literally forming the CSA with it. Pretty different from the USA that more or less was formed de-facto before such a document was written and then had the Articles of Confederation as a constitution until sometime after independence when the US Constitution was adopted in, what was it 1789 or 1791?. Still early, impressed I've remembered this much.

 

[RedRover]

Who were the primary people involved in drafting this document, and can we read their speeches debating this like we can the Philadelphia and state conventions in the 18th Century? What's the best book on confederate constitutionalism?

The Provisional Constitution of the Confederate States (1861) was adopted by the "Provisional Congress of the Confederate States" at Montgomery, AL Feb. 4, 1861.

Jeff Davis's describes the process in his post-war narrative, (p. 229):
Jeff Davis: Rise and Fall of the CS Government, vol. I, Google Books.

Am I wrong to understand the rebels as mostly just longing to reinstate the Articles of Confederation and to undo the Federalist Constitution of Hamilton, Randolph, Marshall, and early Madison before he became hostile to Marshall's vision?

Yes, incorrect. The permanent Confederate Constitution (adopted March, 61, and in effect from Feb. 22, 62) states explicitly it forms a "federal" government, and a "permanent" one, rather than a simple confederacy of States as in the articles of Confederation (1781-89).

The United States Constitution (1787) was adopted to form a "more perfect union..." for similar purposes.

Besides the interesting comparison of the US and CS Constitutions noted previouslay above, here is the text of the Provisional (61) and permanent (62-65) constitutions of the Confederate States:
Confederate Constitutions: Google Books

Did Marshall have any children or grandchildren who fought?

Yes. Most of the Marshalls of Fauquier County, VA, and elsewhere, fought for the South, including the grandsons of Chief Justice John Marshall.

In the Constitutional ratifying convention of Virginia in the 1780s, John Marshall argued in promotion of the federal constitution, "the people give power and they may take it back. They are the masters who gave it, and of whom the servants hold it."
Many federalist ideals were retained by his grand-sires, though many voted with the Whig Party by the '50s (the federalists being shut out of politics largely by the 1820s). They mostly opposed the secession movement, many voting the "Constitutional Union" party ticket in 1860 (Virginia went to that party in the election of that year), and in the crisis many supported anti-secessionist Robert E. Scott of Fauquier to the secession conventions to oppose the measure. After secession, etc., they took up arms to oppose the US invasion of Virginia, etc.
The Marshalls had little political influence in the period (the Confederacy evidently being dominated politically by the Democrats), and most took the field as officers and common soldiers.

One of the chief justice's grandsons, Col. James K. Marshall, was killed in Pickett's charge leading Pettigrew's brigade.

Col. J.K, Marshall, 1839-1863.

Another, Lt. Col. Thomas Marshall of the 7th Virginia Cavalry, was killed in action the next year.

From the pen of one of his "compeers" (his regimental chaplain) in the war,

Lt. Col. Tom's brother Fielding, himself a Confederate veteran, wrote after the war of holding similar views:

"When I deny the right of any state to secede, I do not deny the right of revolution in a state or states. As in the individual to defend himself from oppression there is the right of self-defense; so in the states there is the right of revolution, to throw off oppression whencesoever it may come. There was not right of coercion, under our Federal Constitution nor of secession of a state.
I went out of the old Union and took up arms as a revolutionist when Lincoln called on me to bear arms against old Virginia, who refused to furnish her quota of 75,000 men to fight our fire-sides... She exhausted every argument for peace, to the verge of submission."

Another of the Chief Justice's grand-sons, Col. Charles Marshall of General Lee's staff, in the midst of the fighting in September, 1863 was asked his opinion on the idea the south was fighting to preserve slavery at Antioch church, evidently stated, "if I thought the south the fighting the war to preserve slavery, I should quit." [Chamberlaine, William W., Memoirs of the Civil War...86.]

The children and grandchildren of the Chief Justice's dozen brothers and sisters in Virginia, Kentucky, and elsewhere, evidently held similar views.

J. Marshall,
Hernando, FL.