A few months after the close of the American Civil War there was a brief but intense and interesting correspondence between Lord Acton, the European historian of liberty, and General R.E. Lee, hero of the defeated Confederacy, on the issues of the war. In the course of this correspondence Acton commented that Appomattox had been a greater defeat for the cause of constitutional liberty over despotism than Waterloo had been a victory. It is an arresting statement that ought to have received more attention from lovers of liberty and students of constitutionalism than it has.

DeRosa’s study of the Confederate Constitution provides one way to approach the unexamined question raised by Acton. The book is a good deal more than its title suggests; its subtitle should be taken seriously. The author has, correctly, viewed the Confederate Constitution neither as anomalous nor insignificant, but rather as an illuminating part of American constitutional history. This is in itself a feat of intellectual courage, because nothing is harder than to discuss the issues of the American war rationally and fairly. Invariably there is the attempt to close off debate and understanding by the shout of “Slavery!” Nothing is easier for a scholar than to succumb to this pressure. Yet nothing is a surer sign of either ignorance or dishonesty. Such was the flaw of the otherwise excellent public television series on the war. Professor DeRosa has avoided this common fallacy and treated the constitutional issues of the war—and in its most essential aspect it was a constitutional dispute—seriously.

The Confederate framers took the high ground. They intended to found a lasting federal republic, and their deliberations were carried out on a serious intellectual plane. This is in itself remarkable when we consider that they were at the time under the greatest military threat that any large group of Americans has ever suffered—that is, under prospect of intense invasion by superior military forces from every direction— and that their more rabid opponents have managed to hand down as a historical “fact” the partisan charge that the Confederacy represented nothing but the attempt to found a slavocracy.

At stake was possession of the Rathers. Southerners always said and believed—throughout the antebellum conflicts, the war, and after—that their only goal was to preserve the American Constitution as it had been handed down, that theirs was an eminently conservative effort. Yet victors write the history, and the North was able to co-opt the Founders, portraying the Confederacy as a wicked rebellion against American principles. So the Northern cause got the credit for conserving, but also, very curiously, the credit and elan for being revolutionary, of having proclaimed new and wonderful principles. It perhaps explains the magical power of Lincoln to say that he managed by rhetoric and victory to combine the prestige both of preservation and revolution.

The Confederate Constitution, as has been often observed, embodied the Constitution of the United States, with minor adjustments. It is these adjustments that form the subject of Professor DeRosa’s analysis and that are useful in understanding the U.S. Constitution. For the changes represented a heritage of very seriously considered reactions to the experience of practice with the Constitution of 1787, Therefore, they are of interest in American constitutional history and, as the author suggests, of pertinence to some of the dilemmas of today. Put another way, the few but significant innovations in the Confederate Constitution represent corrections of portions of the U.S. Constitution that had not worked to intent. In terms of political philosophy, the innovations embody the amendments made by Calhoun, the greatest American political thinker of the 19th century, to the commentary of “Publius” in The Federalist, which, after all, had been written before the Constitution was ratified, much less put into effect.

The Constitution of the Confederacy did not establish slavery. It left the matter to the states, just as did the Constitution of the United States, and it contained a stronger prohibition against the African slave trade than did the old Constitution. Its innovations related to other matters. Broadly speaking, they were of two types: those that spelled out the federal nature of the system to be established; and those that made adjustments to the functioning of the federal government, particularly the Presidency, in certain respects. In the first instance, the Confederate Constitution merely made explicit what had been intended by the Tenth Amendment, so explicit that agenda-oriented centralists could not evade it. It also put certain small but significant limits on the power of taxation and expenditure; that is, it expressed a real bias in favor of the free market and limited government, to correct the sectional and class favoritism that had been carried out by congressional majorities under the old government. This should be of interest to all real friends of free markets and limited government.

Most interesting were the changes in the federal executive and judiciary. The Confederate Constitution clearly intended to make the President the high and honorable Chief Magistrate that had been intended by the U.S. Constitution, rather than the party leader that he had devolved into. The President was to serve one six-year term, at one stroke abolishing the reelection question and the second-term impasse. He had a line-item veto in appropriations, meaning a check against irrelevant riders in congressional bills, which under the American system had already developed into a tremendous abuse. There were limits on the degree to which the Congress could exceed the President’s spending recommendations, and Cabinet Secretaries had seats on the floors of Congress, to enhance the process of deliberation beyond the exchange of formal messages, with the intent of increasing economy and accountability in. the public business.

So far as the judiciary was concerned, the Confederate Constitution reflected the pure Jeffersonian principles of the early Republic. The right of judicial review was concurrent—shared by the state and federal courts. For the most basic principle was that the people ruled—that government rested upon the consent of the governed, the people, and that this did not mean simply whatever temporary majority happened to get control of the Supreme Court or Congress or presidency. It meant rather the consent of the people acting through all branches of their state and federal governments. At bottom were, as Jefferson had said, two different ideas of government: a national authority with power to coerce obedience to the governing elite (Hamilton); or a system of dispersed power that trusted the rule of the people through diverse institutions of power and consent (Jefferson). The Confederate Constitution represented the second alternative, and therefore, the author writes, “there is much to be learned from the theories that gave life and death to this American constitution.”

DeRosa does not focus simply upon the Civil War, but provides deep background. In every question he gives us an original and illuminating discussion of basic ideas with the agreements, disagreements, and ambiguities at the time of the Founding; follows these ideas through the antebellum conflicts; and shows how the conflicts issued in particular features of the Confederate Constitution. This is a work of interest to all serious students of American constitutional history and political philosophy.

More impressive even than the content of DeRosa’s book is the intellectual tone and approach, the spirit. He works in the same spirit as did the Founding Fathers and the Confederate framers. He regards the Constitution as an object of reverence and rationality. This is the true JefFersonian spirit. 36/CHRONICLES which animated Calhoun, who once observed: “Constitutions are human contrivances, and what man does and his reasons for it, surely ought not to be beyond his capacity fully to comprehend.” This is the proper spirit to approach the Constitution, as an instrument of self-government to be rationally preserved and employed by free men.


[The Confederate Constitution of 1861: An Inquiry into American Constitutionalism, by Marshall L. DeRosa (Columbia, Missouri: University of Missouri Press) 182 pp., $32.50]