SECESSION AND THE CONFEDERATE CONSTITUTION.
Some advocates of secession justified it as a revolutionary right, but most of them based it on constitutional grounds. The 1860 South Carolina Declaration of the Causes of Secession quoted the states 1852 declaration, which said that "the frequent violations of the Constitution of the United States by the Federal Government, and its encroachments upon the reserved rights of the States," would justify the state in withdrawing from the Union.
The South Carolina secession ordinance, following the procedure that Calhoun had prescribed, simply repealed the states ratification of the Constitution and subsequent amendments. The secession ordinances of other states did the same.
The Confederate Constitution proved to he somewhat inconsistent in regard to state rights. It contained no provision for secession, though its preamble averred that each Confederate state was "acting in its sovereign and independent character." One article (like the Tenth Amendment of the U.S. Constitution) affirmed that the "powers not delegated" were "reserved to the States." The states, however, were limited in important ways. For example, they could not (just as the states of the Union could not) pass any law "impairing the obligation of contracts." They could not get rid of slavery, for the citizens of each state were to "have the right of transit and sojourn in any State . . . with their slaves."
Congress was forbidden to impose duties or taxes to promote or foster any branch of industry" but in some ways was given even greater powers than the U.S. Congress. The ambiguity regarding territories and slavery was removed. The Confederacy could "acquire new territory," and Congress could "legislate" (nor merely make "rules and regulations") for the territories
. In all of them "the institution of negro slavery" was to be "recognized and protected by Congress and by the territorial government." Congress could make all laws necessary and proper" for carrying out its specified powers. If this or any other clause should lead to a dispute over the constitutionality of a law, the Confederate courts (rather than state legislatures or conventions) would presumably decide the issue. This was implied by the following provision: "The judicial power shall extend to all cases arising under the Constitution."
In sum, the new Constitution was more national
than the old one with regard to slavery, which it guaranteed as a nationwide institution. The document provided no more basis for nullification or secession than its predecessor had done--despite the preambles reference to the member states as "sovereign" and "independent." Nevertheless, there remained room for the reassertion of state rights in the Confederacy.