On March 11, 1861, the Confederate Congress, meeting in Montgomery, Alabama, adopted a permanent constitution for their new nation to supersede the provisional constitutional they had hastily adopted a little over a month before. Civil War Emancipation has already dealt with the latter document as it pertained to slavery. Today, it will deal with the permanent constitution on the same issue.
Like the provisional constitution, it was largely based on the U.S. Constitution, but with significant differences. As Stephanie McCurry writes in yesterday’s Disunion in the New York Times, “They purged the text of all of the ambivalences, compromises and hedges about slavery, representation and the power of the federal government that had plagued the republic since the founding.” Also, like the provision constitution, the permanent Confederate Constitution dealt with slavery directly, not obliquely and by implication as in the U.S. Constitution. Clearly, the Confederate States of America was to be a slaveholders’ republic and felt no need to fudge that fact in its highest law.
The permanent Confederate Constitution also added to the provisions dealing with slavery in the provisional document. In addition to the sections in the provisional constitution on fugitive slaves (Article IV, Section 2, Clause 3) and the ban on the foreign importation of slaves except from the United States (Article I, Section 9, Clause 1 and 2), four new clauses in the permanent Confederate Constitution dealt with peculiar institution.
Article I, Section 2, Clause 3 dealt with the taxation and enumeration of slaves, interestingly retaining the three-fifths clause from the U.S. Constitution. “Representatives and direct taxes shall be apportioned among the several States, which may be included within this Confederacy, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all slaves.“
Article I, Section 9, Clause 4 made slaves a sancrosanct type of property within the Confederacy, with special protection under law. “No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.“
Article IV, Section 2, Clause 1 guaranteed the right of slaveholders to freely transit and stay with their slaves unmolested within any state of the Confederacy. “The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.“
Article IV, Section 3, Clause 3 established that in any new territories gained by Confederacy, slaveholders would enjoy the same property rights to their slaves as in the existing states. “The Confederate States may acquire new territory; and Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the Confederate States, lying without the limits of the several Sates; and may permit them, at such times, and in such manner as it may by law provide, to form States to be admitted into the Confederacy. In all such territory the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected be Congress and by the Territorial government; and the inhabitants of the several Confederate States and Territories shall have the right to take to such Territory any slaves lawfully held by them in any of the States or Territories of the Confederate States.“
Clearly, slavery was a more important part of the permanent Confederate Constitution than in the U.S. Constitution. It constitutes one of the most significant differences between the two documents. And slavery would not have been such an important part of the permanent Confederate constitution had slavery not been the raison d’etre for the founding of what amounted to a slaveholders’ republic.