Reframing the Fathers' Constitution: The Centralized State and Centrality of Slavery in the Confederate Constitutional Order

Benjamin H. Hill rose before a rapt audience in Atlanta, Georgia, on April 4, 1861. Months earlier, he had spoken against secession in the state senate. His message had now changed. As a delegate to the Montgomery, Alabama, constitutional convention and member of the Provisional Congress of the Confederate States of America (CSA), Hill did not need his famed oratory to secure the crowd's attention. He came bearing constitutional meaning: "We have not abandoned the provisions of the old Constitution, nor set at nought the wisdom of its framers. The framers of the new do not claim to be more wise than those of the old." Nevertheless, Hill continued, "They have improved upon the old—not because they were wiser—but because they had the light of seventy-three years' experience to guide them." In this strange constitutional moment, Hill made one principle clear to his constituency. "In short," he proclaimed, "the General Government, in all its jurisdiction, is required to protect Slavery." If a bloody clash with the United States ensued, the Confederacy stood ready because "[w]e can keep our negroes at work to support us while we send our young men to war." On the prospects for reunion, the once cautious Hill vowed, "If it is to go back to the Old Constitution,… I am utterly, utterly, and forever opposed to it!" Musing on changes and continuities, this constitutional framer plausibly fulfilled his promise "to speak candidly with you to-night." But there was much Hill could not say. Those "seventy-three years' experience" separating an eighteenth-century Philadelphia hall from the Montgomery framers' convention ensured that the meaning of the Confederacy's constitutional order would only become visible over time and under duress.¹

"Deratification" swept the lower South in early 1861. Constitutional tissue was severed by word, perception, and deed. With the ceremony of conventions and formality of ordinances, six southernmost states had purported to resume perfect sovereignty by February 1861. Texas soon followed, and four states of the upper South had cut their national sinews by May's end. Yet unbridled statehood was fleeting, as southern leaders sought consolidation with existential haste. Gathering in Montgomery on February 4, delegates scripted a political community and legal identity, the Confederate States of America. The convention created a provisional constitution four days after convening and began drafting a "Permanent Constitution," adopted on March 11. The body rendered itself into a Provisional Congress, wielding authority throughout the following year.²

The Confederacy awoke under looming dangers with an appetite for order, security, and state capacity. "We must meet [Abraham] Lincoln with a President of our own. We want the military resources of the South concentrated at once," U.S. assistant secretary of state William Henry Trescot urged in January, upon resigning his post.³ Before abandoning the U.S. Senate, Florida's David L. Yulee proposed "a Southern Government as soon as possible, adopting the present Federal Constitution for the time, and a Southern Army."⁴ Attentive to risks, financier Gazaway B. Lamar counseled the Provisional Congress on the imperative of constitutional bonds, "to clinch the people for their support hereafter, when things change and the burdens become onerous." Lewis M. Stone, an Alabama secession convention delegate, anticipated "a real, substantial Government—one armed with all the power to resist any shock to which we may be subjected; a Government complete in all its parts, established upon an immovable basis, and possessed of all the elements of national strength."⁵ At stake was the viability of secessionists' aims: a slaveholding republic, a South without a North.⁶

State conventions swiftly ratified the new Confederate constitution. Only Texas held a referendum.⁷ As Alabama delegate Robert Jemison Jr. concluded, it is "our duty … to check the popular impulse" and to "present to the world an unbroken front." The people out-of-doors did not speak; they followed. As one troubled delegate observed, "You then have made the Congress; the Congress made the Constitution, and the Constitution is not submitted...