The Provisional Constitution of the Confederate States of America was an interim constitution adopted by the Confederacy and in force from February 8, 1861 to March 11, 1861. On March 11 it was superseded by the more permanent Constitution of the Confederate States of America.
Montgomery Convention and the Committee of Twelve
On February 4, 1861, in Montgomery, Alabama, a convention consisting of delegates from South Carolina, Florida, Alabama, Mississippi, Georgia, and Louisiana met to set about creating a new form of government based on that of the United States of America. Their efforts resulted in, among other achievements, the drafting of a Provisional Constitution for what came to be known as the Confederate States of America.
Before the Montgomery Convention could accomplish anything, it required a set of guidelines to follow. On February 5, Christopher Memminger proposed a committee of thirteen be created for the purpose of drafting a provisional constitution in order to grant congressional power to the convention. Thomas R. R. Cobb, of Georgia, moved that the committee be twelve, with two members from each state delegation. The Convention settled on the latter, nominating Memminger and Robert W. Barnwell from South Carolina, William S. Barry and W. P. Harris from Mississippi, J. Patton Anderson and James B. Owens from Florida, Richard W. Walker and Robert H. Smith from Alabama, Stephens and E. A. Nisbet from Georgia, and John Perkins and Duncan F. Kenner from Louisiana to the Committee of Twelve. The committee elected Memminger, who had arrived at the convention with a draft already prepared, as their chair.
Key points and differences
All committee members were well educated and had extensive legislative experience. Due to the necessity of a constitution, they worked considerably fast, reporting back to the convention on February 7. Copies were then made and distributed to convention members who spent relatively little time on debate. Their key changes to the committee’s draft was an inclusion of the phrase “Invoking the favor of Almighty God” into the preamble, the addition of an executive item veto, a removal of a congressional restriction of fifteen percent on import tariffs, and a combining of the circuit and district court systems into one district system where each state comprised one district. The Provisional Constitution was then unanimously ratified near midnight on February 8, 1861 and was signed by all present members at noon the day of Jefferson Davis’s inaugural address on February 18, 1861. There are fifty signatures in all, including those of the Texas delegation who were admitted on March 2. The Provisional Constitution was nullified with the ratification of the permanent Constitution of the Confederate States of America on March 11, 1861.
The framers of the Provisional Constitution used the Constitution of the United States as a basis for their own, and thus there are many similarities. There were also several noticeable differences, including the aforementioned changes, as well as a clause which allowed congress to use a two-thirds vote to declare the president unable to perform his duties. Article IV permitted congress to amend the constitution with another two-thirds vote, and Article VI granted congress the power to admit other states into the confederacy. In their haste, however, the Committee of Twelve neglected to include important features such as a ratification process and decided to omit any mention of controversial issues regarding slavery, and tariffs. Such issues were to be decided in the permanent Constitution.
Perhaps the most notable of these neglected issues was slavery. Given the importance of slavery to the secessionist movement of the south, the issue is mentioned rather sparingly in the provisional constitution. The constitution only mentions slavery twice: once in the prohibition of the slave trade, and again in a constitutional guarantee of the return of fugitive slaves or financial compensation equal to the “value of the slave and all costs and expenses.” This absence of further regulations on slavery reflects, among other things, the complexity and variety of political and moral beliefs among convention members.
In his inaugural address, Jefferson Davis said: “We have changed the constituent parts but not the system of government. The Constitution framed by our fathers is that of these Confederate States” and that it differed “only from that of our fathers insofar as it is explanatory of their well-known intent…” Some scholars agree with Davis that the Provisional Constitution sought to clarify many of the ambiguities of the original Constitution. The language of the constitution, however, leads most historians to view the Provisional Constitution as an attempt to grant greater power to the states. For instance, in the preamble, “We the people” is replaced with “We the deputies of the sovereign and independent States.” Words such as “delegated” and “expressly granted” were also used to emphasize the power of the states within the Confederacy.
- Charles Robert Lee, Jr. The Confederate Constitutions, (Chapel Hill: The University of North Carolina Press, 1963), 60.
- Ibid.; Wilfred Buck Yearns, The Confederate Congress, (Athens: The University of Georgia Press, 1960), 23-24.
- Lee, Constitutions, 61-67, 80-81.
- Emory M. Thomas, The Confederate Nation: 1861-1865, (New York, Hagerstown, San Francisco, London: Harper & Row, Publishers, 1979), 63.
- Lee, Constitutions, 69-72.
- Provisional Constitution of the Confederate States of America. Article 1, Section 7.1-7.2 and Article 4, Section 2.3, quoted in Lee, Constitutions, 162, 168.
- Jefferson Davis, Rise and Fall of the Confederate Government, Vol. 1, (New York: D. Appleton and Company, 1881), 234, 236.
- Lee, Constitutions, 68