Research Matters: Alison LaCroix on "Continuity in Secession: The Case of the Confederate Constitution"

Research Matters is a regular feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Professor Alison LaCroix, the Ludwig and Hilde Wolf Teaching Scholar, wrote, “Continuity in Secession: The Case of the Confederate Constitution,” for a forthcoming volume, tentatively titled Nullification and Secession, edited by Sanford Levinson of the University of Texas at Austin School of Law and published by University of Kansas Press. In her paper, LaCroix examines constitutional federalism in the Confederate States of America and the interpretive theories that Confederate leaders applied to the question of the relationship between their own constitution and the U.S. Constitution. She argues that early-19th-century Americans embraced a “Constitution-dominated mindset” — and that, partly as a result, the Confederates continued to follow many of the principles and institutions established by the founders, even as they were breaking away. 

Q. Why did you write this piece?
A. I had talked with Sandy Levinson about his edited volume, which focuses on secession and nullification. Federalism — which is what my first book was on — is obviously related to those issues. I’m working on a second book project now, on the early 19th century, and I’ve been thinking a lot about the period between 1815 and 1861, between the War of 1812 and the Civil War. Nullification and, later, secession are tremendously important issues for that period. Relatedly, in my American Legal History class, which focuses on early American legal history from the colonial period through Reconstruction, I assign the Confederate Constitution. It’s always a fun source to teach because the students are astonished by what they see in the Confederate Constitution. Most of them have never read it, and it is not what they expect. I knew it was a good thing to focus on and that I wanted to look at it more.

Also, in my new book project, part of the argument is about the way people made constitutional arguments in the early 19th century. Ordinary people felt like they had access to the Constitution and used constitutional arguments, and the Confederate Constitution is the triumph of that spirit in a place we wouldn’t expect to see it.

Q. One of the things that surprised me was the reverence you described for the text and structure of the Constitution in the early 19th century. Where did that come from — and is it unique to that time period?
A. I think it’s very distinctive to that period. In the 1820s, people looked around and most of the founders had died — the last of the Constitutional Convention delegates to die was James Madison, in 1836; John Adams and Thomas Jefferson had died in 1826 — and there was a sense in America of crisis and uncertainty. It was as though the cohort that came of age in the early nineteenth century were the adolescents, and they did not wanting to mess things up. They had often asked the founders for advice, but then the founders weren’t there anymore. 

Q. So, it was the ultimate breaking away from the parents?
A. Yes — and I think they felt that the remaining anchor they had, and the thing they could stick to, was the Constitution. They venerated it because it was something the previous generation had given them, and in that sense it was something they could all agree on. But there was incredibly wide debate about what the Constitution meant or required. The position of the South, especially once the Civil War was imminent, was that southerners were the real inheritors of the original Constitution. And this is part of why the Confederacy adopted as much of the U.S. Constitution as they did — it was to say, “We’re the true inheritors of 1789, not you who have deviated from the path.”

Q. Is it at all surprising then that the Confederacy stuck so close to the U.S. Constitution?
A. I think it’s surprising from a 21st century perspective. Even though many of the drafters of the Constitution were slaveholders, and even though they built in a lot of protections for slavery (even if they didn’t use the word slavery), we tend to think that the Reconstruction amendments and the civil rights revolution of the 1960s picked up on something that was there in the document all along. So how could a war that everyone understands to have been a rebellion of slaveholding states — and about slavery — be anything other than a repudiation of the founding document of the Republic? You see this even in the way we talk about the Civil War armies — it’s the rebels or Confederates versus the Union troops or the federals. Today when we look at the Civil War, we think: if you didn’t believe in the Union — Lincoln’s union, a union without slavery — then how could you believe in the Constitution? But the Confederates didn’t believe that that’s what the Union was about. Of course, there were some important differences in the two constitutions. When the drafters of the Confederate Constitution made changes, they made meaningful changes. The most important change was that the Confederate Constitution specifically protected slavery. That protection arguably gave more power to the Confederate Congress, which again is surprising, given the common view that the Confederacy was founded on states’ rights.

Q. You mentioned earlier that students tend to be fascinated by the Confederate Constitution. What grabs them?
A. A lot of the discussion focuses on how structurally similar it is to the U.S Constitution. They’re also struck by one of the biggest differences, which is that the Confederacy never had a supreme court. It was provided for, and possibly even required by the text of their constitution, but they never established it. It was this alternative universe of how things could have been set up. Everything we do in modern constitutional law focuses on the Supreme Court, and then you see this mirror image, which doesn’t have the Supreme Court. 

Q. And the Confederates even looked to the U.S. Supreme Court for guidance, right?
A. Yes. Once the Confederacy was up and running, its leaders thought, “Well, we don’t have any precedent.” But then they decided, “Oh, yes, we do. We have all the precedents of the U.S Supreme Court.” And analytically, they could claim that because they claimed to be continuous. It is totally fascinating to me that they then adopted precedents from John Marshall, who was a strong Unionist, and arguments of U.S. attorneys general in support of broad executive power.

Q. What do hope readers will take from this paper?
A. How different and distinct the Constitution of the nineteenth century was from what we view as the Constitution today. Constitutional lawyers, and historians, and members of the public, typically focus on the founding, then the Civil War and Reconstruction, and then everything that came after in the twentieth century when they identify obvious moments of fundamental constitutional and political change. There’s a sense that, in the early nineteenth century, they were just getting ready to fight the Civil War, as if everything was a dress rehearsal for the conflict that everyone knew was coming. But in fact law and politics were so much more unsettled than that. They were incredibly dynamic, and early-nineteenth-century commentators often made arguments that were the opposite of what would be good constitutional arguments today.