The Confederate Constitution

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. Just out of curiosity, where there any significant opinions issued by the Confederate Supreme Court? Did the Confederacy constitute inferior courts? This site has a very good comparison and breakdown between the United States and Confederate Constitutions. http://www.filibustercartoons.com/CSA.htm

  2. Gerard Magliocca says:

    Hi Josh,

    That’s an interesting question and I do not know the answer. Anyone out there have any insights?

  3. Nate Oman says:

    There was a book published in the 1940s that is a history of the Confederate judicial system entitled, Justice in Grey. According to Amazon, used copies of the book sell for over $1,000. There seems to be a market in writing on the topic if anyone is interested…

  4. arthur says:

    No justices were ever appointed to The Confederate Supreme Court, and the Court never convened. There are some decisions interpreting the Confederate Constitution from the state Supreme Courts of the Confederacy.

  5. The Confederate Supreme Court was never constituted. However, the state courts heard a number of important cases. The state supreme courts of the Confederate states freely cited US Supreme Court (even Marshall Court) opinions. Want to read some of these opinions? They’re in the state reporters. So, sandwiched between the opinions of the VA, GA, ALA, Miss, and NC reports in the pre-war period and the post-war period are the opinions issued when the states were part of the Confederacy.

    In addition to Justice in Grey, which as I recall focused on lower court opinions in the Confederate courts (the successor to the federal courts), Don Fehrenbacher’s Constitutions and Constitutionalism in the Slaveholding South deals with Confederate state supreme court opinions.

    J.P. Norman published a very nice piece on the Confederate state courts’ approach to conscription in the Alabama Law Review recently:
    http://www.law.ua.edu/lawreview/articles/Volume%2060/Issue%203/norman.pdf

    And there’s a really terrific article by Don Nieman on the Confederate Constitution and republicanism in Kermit Hall and Jim Ely’s An Uncertain Tradition