A ForgottennDocumentnby Clyde WilsonnThe Confederate Constitution ofn1861: An Inquiry into AmericannConstitutionalismnby Marshall L. DeRosanColumbia, Missouri: University ofnMissouri Press; 182 pp., $32.50nAfew months after the close of thenAmerican Civil War there was anbrief but intense and interesting correspondencenbetween Lord Acton, thenEuropean historian of liberty, and GeneralnR.E. Lee, hero of the defeatednConfederacy, on the issues of the war.nIn the course of this correspondencenActon commented that Appomattoxnhad been a greater defeat for the causenof constitutional liberty over despotismnthan Watedoo had been a victory. It isnan arresting statement that ought tonhave received more attention from loversnof liberty and students of constitutionalismnthan it has.nDeRosa’s study of the ConfederatenConstitution provides one way to approachnthe unexamined question raisednby Acton. The book is a good deal morenthan its title suggests; its subtitle shouldnbe taken seriously. The author has,ncorrectly, viewed the Confederate Constitutionnneither as anomalous nor insignificant,nbut rather as an illuminatingnpart of American constitutional history.nThis is in itself a feat of intellectualncourage, because nothing is harder thannto discuss the issues of the Americannwar rationally and fairly. Invariablynthere is the attempt to close off debatenand understanding by the shout ofn”Slavery!” Nothing is easier for a scholarnthan to succumb to this pressure. Yetnnothing is a surer sign of either ignorancenor dishonesty. Such was the flawnof the otherwise excellent public televisionnseries on the war. ProfessornDeRosa has avoided this common fallacynand treated the constitutional issuesnof the war—and in its most essentialnaspect it was a constitutional dispute —nseriously.nREVIEWSnThe Confederate framers took thenhigh ground. They intended to found anlasting federal republic, and their deliberationsnwere carried out on a seriousnintellectual plane. This is in itself remarkablenwhen we consider that theynwere at the time under the greatestnmilitary threat that any large group ofnAmericans has ever suffered — that is,nunder prospect of intense invasion bynsuperior military forces from every direction—nand that their more rabid opponentsnhave managed to hand down asna historical “fact” the partisan chargenthat the Confederacy representednnothing but the attempt to found anslavocracy.nAt stake was possession of the Rathers.nSoutherners always said and believed—nthroughout the antebellumnconflicts, the war, and after — that theirnonly goal was to preserve the AmericannConstitution as it had been handedndown, that theirs was an eminentlynconservative effort. Yet victors write thenhistory, and the North was able tonco-opt the Founders, portraying thenConfederacy as a wicked rebellionnagainst American principles. So thenNorthern cause got the credit for conserving,nbut also, very curiously, thencredit and elan for being revolutionary,nof having proclaimed new and wonderfulnprinciples. It perhaps explains thenmagical power of Lincoln to say that henmanaged by rhetoric and victory toncombine the prestige both of preservationnand revolution.nThe Confederate Constitution, asnhas been often observed, embodied thenConstitution of the United States, withnminor adjustments. It is these adjustmentsnthat form the subject of ProfessornDeRosa’s analysis and that are useful innunderstanding the U.S. Constitution.nFor the changes represented a heritagenof very seriously considered reactions tonthe experience of practice with thenConstitution of 1787, Therefore, theynare of interest in American constitutionalnhistory and, as the author suggests, ofnpertinence to some of the dilemmas ofntoday. Put another way, the few butnsignificant innovations in the ConfederatenConstitution represent correctionsnof portions of the U.S. ConstituHon thatnnnhad not worked to intent. In terms ofnpolitical philosophy, the innovationsnembody the amendments made by Calhoun,nthe greatest American politicalnthinker of the 19th century, to thencommentary of “Publius” in The Federalist,nwhich, after all, had been writtennbefore the Constitution was ratified,nmuch less put into effect.nThe Constitution of the Confederacyndid not establish slavery. It left thenmatter to the states, just as did thenConsdtution of the United States, andnit contained a stronger prohibitionnagainst the African slave trade than didnthe old Constitution. Its innovationsnrelated to other matters. Broadly speaking,nthey were of two types: those thatnspelled out the federal nature of thensystem to be established; and those thatnmade adjustments to the functioningnof the federal government, parhcularlynthe Presidency, in certain respects. Innthe first instance, the ConfederatenConstitution merely made explicitnwhat had been intended by the TenthnAmendment, so explicit that agendaorientedncentralists could not evade it.nIt also put certain small but significantnlimits on the power of taxation andnexpenditure; that is, it expressed a realnbias in favor of the free market andnlimited government, to correct the sectionalnand class favoritism that hadnbeen carried out by congressional majoritiesnunder the old government. Thisnshould be of interest to all real friendsnof free markets and limited government.nMost interesting were the changes innthe federal executive and judiciary.nThe Confederate Constitution clearlynintended to make the President thenhigh and honorable Chief Magistratenthat had been intended by the U.S.nConstitution, rather than the partynleader that he had devolved into. ThenPresident was to serve one six-yearnterm, at one stroke abolishing the reelectionnquestion and the second-termnimpasse. He had a line-item veto innappropriations, meaning a checknagainst irrelevant riders in congressionalnbills, which under the Americannsystem had already developed into antremendous abuse. There were limitsnMARCH 1992/35n