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274 9 . Continuity in Secession The Case of the Confederate Constitution Alison L. LaCroix Speaking before the Young Men’s Lyceum of Springfield, Illinois, in 1838, Abraham Lincoln exhorted Americans to embrace the nation’s foundational legal texts, the Declaration of Independence and the Constitution, as their “political religion.”1 American government relied upon “the attachment of the People,” and the project of the Union therefore required that the “best citizens” not undergo an “alienation of their affections from the Government.”2 Twenty-three years later, in his first inaugural address, President Lincoln would invoke the authority of “universal law and . . . the Constitution” to argue that “the Union of these States is perpetual.”3 By the outbreak of the Civil War in 1861, the national obsession with identifying a single true meaning for the federal union constructed by the Constitution had spread to observers elite and ordinary; Northern, Southern, Eastern, and Western; wealthy and poor; male and female; black and white. Historian Arthur Bestor has argued that the Constitution was the channel through which the many political, economic, social, and moral controversies of the period flowed, and that the war was therefore a largely inevitable constitutional crisis.4 In this essay, however, I argue that constitutional text and modes of thought were more than a channel that configured other, more foundational debates. The words of the Constitution, its ways of framing questions, and indeed its very structure dominated the American consciousness to such a degree that even secessionists could not escape it. On the contrary, they sought to embrace it. 1. Abraham Lincoln, Address Before the Young Men’s Lyceum of Springfield (Jan. 27, 1838), in The Political Thought of Abraham Lincoln 16–17 (Richard N. Current ed., 1987). 2. Id. at 11, 15–16. 3. Abraham Lincoln, First Inaugural Address (1861), in 7 A Compilation of the Messages and Papers of the Presidents 3206 (James D. Richardson ed., 1897). 4. Arthur Bestor, The American Civil War as a Constitutional Crisis, 69 Am. Hist. Rev. 327 (1964). Continuity in Secession 275 The best evidence of this Constitution-dominated mind-set comes, paradoxically , from the same individuals who felt they had no choice but to break apart the Union: the leaders of the Confederate States of America. In March 1861, the first seven states to secede from the Union adopted a constitution that looked remarkably similar to the U.S. Constitution, the founding document of the republic from which they had just departed. Four states (Virginia, Tennessee, North Carolina, and Arkansas) had not yet seceded but would soon join the Confederacy, over the protests of the Constitutional Union and Whig parties within each state. So strong was the force of what I have termed the interbellum Constitution5 that it transcended the would-be national boundary created by the departure of some of its members. Moreover, the authority of the text and structures set forth in the U.S. Constitution was viewed by many Confederate leaders as controlling, even as they attempted to launch their new polity. This essay examines two related topics: the structures of constitutional federalism in the Confederacy and the interpretive theories that Confederate leaders applied to the question of the relationship between their own constitution and the one that had preceded it. In both structure and theory, the Confederacy displayed what to modern observers is a surprising aspiration toward continuity with the U.S. constitutional regime. The continuity is evident in the specific textual provisions of the document itself, which duplicated some of the most contested language of the prewar period, including several clauses that suggested a relatively powerful central (or, as contemporaries would have termed it, general) level of government with a robustly powered Congress. The Confederate Congress had the authority to regulate commerce among the Confederate states and to make all laws that were necessary and proper for carrying its constitution into execution.6 The states were prohibited from entering into any “treaty, alliance, or confederation” or levying import or export duties.7 The constitution and the laws and treaties of the Confederate States made in pursuance of the constitution were deemed “the supreme law of the land,” with binding effect on judges in the state, “any thing in the Constitution or laws of any State to the contrary notwithstanding”—a duplication of the supremacy clause of Article V of the U.S. Constitution.8 Moreover, the substantive scope of Confederate legislative power was greater 5. Alison L. LaCroix, The Interbellum Constitution: Federalism in the Long...


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