Skip to comments.On Secession: An Analysis of Texas v. White
Posted on 01/10/2013 7:14:20 AM PST by SeekAndFind
I was recently hired to review the Supreme Court opinion in the case of Texas v. White, 74 U.S. 700 (1869).
The opinion in that matter was written by Chief Justice Salmon P. Chase, who had served in Lincoln's cabinet during the Civil War prior to his appointment as chief justice. In the recent talk of secession, this case is often thrown out as having settled the matter legally, just as the Civil War settled the matter militarily.
This memorandum of course does not address the wisdom of secession and does not advocate secession. It is devoted solely to analysis of whether Texas v. White is, as is suggested, binding precedent as to the future legality of a state attempting to secede.
1. Secession was not the ultimate issue in Texas v. White.
Texas v. White is often cited as a case which definitively and directly ruled on Texas' right to secede. That is not the case. Texas v. White was a case about government bonds. It's all a little boring but it's important to understand just how far removed the decision is from what it is often presented to be.
In 1851, the Federal Government issued bonds to the State of Texas as payment for the resolution of a boundary dispute. The bonds were payable to the State of Texas, or bearer, meaning that Texas could redeem them itself, or sell them on the secondary market. The Texas legislature then passed an act which indicated that the bonds could not be sold unless endorsed by the Governor of Texas.
Texas redeemed most of the bonds prior to the Civil War, but it still had a few left when the war broke out. These were not yet signed by the governor.
(Excerpt) Read more at americanthinker.com ...
Great article. Secession is not a “legal” question anyway, it’s a political question. Those who believe the word secession is a scary word do so at their own peril.
Not me, I’m not afraid of it. In fact, this the most powerful and potent tool we have...the unalienable right to free association.
“...this case is often thrown out as having settled the matter legally...”
What a load of hogwash. Liberals get a favorable ruling and drag out this statement.
Does it also apply to the Dred Scott decision?
These idiots love to pontificate that “the Constitution is a living, breathing document” but woe unto anyone who suggests that Roe v. Wade be re-examined.
The Supreme Court is neither omniscient nor omnipotent, though they insist on acting that way.
The decision not to prosecute treason was political but not made by SCOTUS. It was a decison of theexecutive branch. As to the author’s contention that Chase contradicted himself by declaring that the union of states was declared perpetual by the Articles. He asks how can the Articles declaration be used when they were replaced. But the Articles never claimed to be perpetual. It claimed the Union of States was perpetual. That is what Chase referenced. The adoption of the Constitution did nt abrogate laws passed under its auspices. The Northwest Ordinance remained law of the land and the statehoods of the Old NW were governed bythat law. The passing of the Articles had no bearing on the nature of the perpetual Union.
If secession was/is illegal then why does West Virginia exist?
It should still be a part of Virginia as no state shall be formed within the boundaries of an existing state without the consent of the state and the Congress. Last I checked Virginia never consented to the Western counties forming their own state.
The article is thorough and accurate but that is irrelevant in the real world.
Until Versailles on the Potomac is as bankrupt and unsupported as the Politburo and CPUSSR in 1991, any serious effort at secession will result in imprisonment at best, and more likely example murders ala Ruby Ridge or Waco. Anyone who advocates secession and thinks otherwise is a fool.
The right to secede, as expressed in the Declaration of Independence, and decadence and corruption of central authorities is beside the point. As long as a corrupt authority can fight to preserve itself, it will. If it were not corrupted, no one would be seeking to leave it. Laws and rights be damned, coerced union is about the honor killing and perpetual servitude for one party, and unquestioned domination by the other. It was ever so, in every generation.
By the time a people are ready for secession, things are probably so bad the constitution is just a worthless piece of paper anyway. By that time who cares what the courts of corrupt and abusive govt says. Secession seems to reside outside of the laws.
You might be right, but I think the Beast on the Potomac would cast this as an dangerous armed uprising and bring in UN troops if only as stage props. The globalists within and without this system would see this as the opportunity to be done once and for all with Americans and their anarchic love of personal liberty. Atrocities would be staged and blamed on the “rebels” and likewise run though the mass media.
All persons and all liberties are expendable to the Statist. There is nothing they would not do, and no one they would not kill, in order to perpetuate their false god, be it Eternal Rome, the Thousand Year Reich, or whatever name you wish to apply to the degenerate and oppressive State.
I see the nationalists are out in full bloom!
No State surrendered their sovereignty...please point out where they did? I can point to three ratification documents that make it clear they intended to resume governance to themselves should it become to necessary to their happiness. So either the signers of these documents were frauds and flat out stupid and didn’t read the invisible clause in Article 7 where they surrendered their sovereignty. Or, maybe, just maybe the nationalists have it ALL wrong. Hmmm. I wonder which is correct...historical fact or the perpetual Union philosophy.
Was the first American Revolution “Legal”?
And you found that where in the Constitution?
“The “perpetual” Union nonsense was just a figment of a couple of presidents imaginations. A truly silly idea to boot.”
I met a traveller from an antique land
Who said: Two vast and trunkless legs of stone
Stand in the desert. Near them on the sand,
Half sunk, a shatter’d visage lies, whose frown
And wrinkled lip and sneer of cold command
Tell that its sculptor well those passions read
Which yet survive, stamp’d on these lifeless things,
The hand that mock’d them and the heart that fed.
And on the pedestal these words appear:
“My name is Ozymandias, king of kings:
Look on my works, ye Mighty, and despair!”
Nothing beside remains: round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far away.
Ozymandias - Percy Bysshe Shelley
You are going to like this post. Thanks Psalm 144
Sophistry. The facts are these:
1) The Supreme Court will rule in the best interests of the federal government not the states. They are nine paid employees of the federal government. Regardless how Texas v White was decided, today’s Court has no desire to let the Constitution or precedent interfere with their desired outcome.
2) If the State of Texas were to secede, they should not ask for permission from the U.S. Government. They should already be smart enough to figure out what the answer is going to be. How far do you think America’s founders would have gone if they had asked for England’s permission to form a new country? If you believe in secession, just do it.
I see that you are from the if you can’t dazzle ‘em with brilliance, baffle them with BS school of thought. Where exactly are the requirements for secession listed in the Constitution?
If Texas were to try a legal form of secession, the way to go about it would be to use the clause that allows them to split into five states and threaten to do this if they are not allowed to secede peacefully. Would Obama be willing to have eight more senators in the Senate appointed by a Republican governor to foul up his Senatorial fig leaf and prevent his nominations from passing? Hell, no. THAT’S how Texas can leverage their way into a peaceful secession if they were to choose to do it.
“The South has contended only for the supremacy of the constitution, and the just administration of the laws made in pursuance to it.
“Virginia to the last made great efforts to save the union, and urged harmony and compromise.”
Robert E. Lee, Dec. 1866
Spot on OrangeHoof!
The days of the nationalists and “perpetual Unionists” are coming to the close. Their Constitutional “theories” are being laid bare for the ridicule they deserve.
They bathe themselves in legal theory while ignoring facts. Nationalists are NOT to be trusted. They undermine the very unalienable rights the Founders fought and died for. And in doing so, the MOCK their sacrifice.
The Founders, Framers nor Ratifiers did NOT create a “national” government...that is a fact. The federalists may have wanted one and crafted a way to get there. But the simple facts are, the Constitution would never have been ratified had the people of the States believed they were surrendering their sovereignty.
Fear the nationalists, even the ones calling themselves “Conservative!” They are seeking ways to usurp more of your unalienable rights.
Wonder why this President has had so many Generals and Admirals resign? They are privy to better information than we, regarding illegal arab campaign money and stolen election. Instead of attacking fellow citizens, I would suspect a significant group of high ranking would “advise” nobama to seek safe asylum outside the USA.
Exactly Jospehm20. People who war against secession war against unalienable rights. A law cannot over rule an unalienable right. Unalienable rights can be delegated, but not surrendered. And as such, when delegated, the delegation can be rescinded. Secession rescinds a delegated power. That’s all it is...and no law created can nullify that.
Not even Texas v. White nor the make believe “perpetual Union” baloney made up out of whole cloth.
The requirements for seccession are easily found in the 10th Amendment. Powers not specifically granted to the federal government are left to the states, or to the people.
The Constitution is detailed in how a state can join the union, but makes no mention of how a state may leave. The fact that the Constitution does not discuss it, means it was a power deliberately left to the state. There is not the -slightest- indication that the founders meant the union to be a suicide pact, where one could enter and never leave.
The civil war only decided one thing. That is what happens when a populous industrial region fights a rural agricultual region.
If and when that time comes as forced by nobama there will be no asking for permission.
Just like in 1836, Texas will stand against the tyrant. Come and Take it, like Don’t Mess with Texas is an ingrained mindset, not just a slogan.
The absence of one party to a legal requirement is not justification for that item being legally binding. For example, I cannot go to a bank and simply deem you to have cosigned the loan by virtue of your absence. ~ To assert that the assent of a State, even if it was in rebellion, is not really required when the Constitution explicitly demands it is to deny the Constitution's position of the highest law of the land.
To elaborate: Even if the Executive issued an Executive Order instructing the various Government Agencies to confiscate firearms, and the legislature were to pass [ordinary] legislation making all private firearm possession prohibited, and the Supreme Court were to declare these acts legitimate would not make them legitimate. Why?
Because the Second Amendment says "the right of the people to keep and bear arms shall not be infringed", and firearms are certainly arms, and such as above is certainly infringement.
The State of West Virginia was erected during a period of time in which there was no Virginia state goverment to assent or dissent the application of the loyal citizens of West Virginia for accession as a loyal state in the Union.
The absence of a State government to assent is precisely the point: a State government was required, by the Constitution, to assent... it did not. Therefore, for WV & VA to both be States, Secession must be valid: for either VA could not secede from the US and WV could not be a State, or VA could secede and WV could secede from that secession [and join/stay with the Union].
Here here again!
This is refreshing to see...people defending an unalienable right. The nationalists, even the conservative one’s, don’t know what to do with this type of reasoning. They love their little “nuances” or “penumbras” of legal theory. But as I mentioned about, secession is NOT a legal question anyway. It’s a political question.
Conservative nationalists bother me the most. First, because I used to be one until I got off the power politics bandwagon and actually learned history. Second, because the consequences of the “nationalism” they promote, just their kind of nationalism leads exactly to the oligarchy we have today. Either way, progressive or conservative nationalism leads to the same place...crushing unalienable rights.
Let me off the nationalist train please; I want nothing to do with it. It’s very ugly, dirty, backroom deal making and immoral. No thanks.
Though certainly not perfect, I’ll take my chances with a Union of sovereign States where diversity and liberty have a much better chance.
Needed to be said again.
Grrreat post. Very interesting column as well as seriously informed posters reflected in their comments following.
I don't think that option is any longer valid. It was part of the articles of annexation, yes, when Texas first joined the union. But when Texas re-joined the union after the Civil War, I believe that option was made null and void.
Were it still in effect, though, six other states would be in for a rude surprise -- because the original dimensions of Texas would apply. Which means that
1. Oklahoma would lose its panhandle.
2. Kansas would lose all of West Kansas north of the panhandle.
3. Nebraska would lose everything south of the North Platte River and north of the panhandle (which would include the Nebraska panhandle).
4. Wyoming would lose everything south of the North Platte and north of the source of the Rio Grande.
5. Colorado would lose everything east of the source of the Rio Grande
6. New Mexico would lose everything east of the Rio Grande.
So, not only would the new, improved Texas gain ten Senators, but four Democrat Senators in Colorado and New Mexico would be displaced.
That is what I was taught.
Indeed RitaOK, this is the conversation of the early 21st century. But it will be a battle for sure. We’ve all been infected by a disease called nationalism and the antidote are history and facts.
It simply cannot be demonstrated that the signers of the ratification documents that “acceded” to the Constitution thought they were “surrendering” their sovereignty. Read the history of North Carolina’s ratification attempts. They failed until the Bill of Rights was passed believing it would ensure the newly created federal government wouldn’t trample on their State. Sadly, they were wrong. The other Wayward Sister, tiny Rhode Island waited almost two full years after NH ratified the Constitution to do so as well. Even then, they had to be kind of coerced into it by a very close 32-30 vote. Two votes. Is there any credibility to their desire not to be part of the new Union or where they just a bunch of redneck hayseeds like the nationalists make current day secession supporters out to be. Did you know that Rhode Island did not even send delegates to the Philadelphia Convention.
These and many other facts are the facts the nationalists do not want people to know. For when we do, we will bring down their little empire in Washington DC by breaking away from it.
Now, to be fair, I can’t blame all nationalists, just about everyone of us in this generation have been infected with this disease. But once we take the antidote (facts and history), we must fight to restore that which was usurped. The intentional nationalists (both progressive and conservative) are the real enemies of liberty. And they will be who we will do battle with always remembering though that our cause is just and right. There’s is about power and control over people.
“Secondly, why would one think the US military would take the side of a tyrant who has shown them and America disdain?”
Why do you think substantial numbers would mutiny?
“I don’t think there would be many who would attack fellow patriots by some Presidential Order.”
I think many would follow orders to ‘suppress insurrection’ with greater or lesser degrees of enthusiasm.
If we come to civil war the fractures will be as many and complex as those in the Spanish Civil War.
There need not be a shot fired. We had a peaceful secession already...in 1787. No one was shot, hung, or arrested back then.
If Obama is Jackson/Lincoln revisited, then we’ll see. But I’m not remotely convinced there would be shooting. Just saber rattling and very tense negotiations.
West Virginia came into being because the western counties setup a rump government headed up by Pierpont. The convention to setup the West Virginia government had persons representing counties that they did even live in. When the vote came on whether the specified counties were to secede from Virginia, the western counties were occupied by Union troops. The vote totals were substantially less the vote totals held 3 years previously when Virginia voted to secede. I believe in some counties, the vote totals were in the hundreds. Of the counties that presently make up the state of West Virginia, about half voted to secede when Virginia seceded.
Lee’s quote is quite accurate about Virginia trying to hold the Union together. During the secession convention, Virginia voted not to secede (I think the date was Apri 3, 1861) and sent a delegation to Washington. Lincoln refused to meet the delegation. After Lincoln called up troops to invade the South, Virginia refused to be a party to the invasion and seceded.
I understand that and I hope this would be the case. I look at the implosion of the Soviet Union as an example. Despite the fact that secession was an express right in the Soviet constitution, troops were sent in to occupy the Baltic states as soon as they threatened to exercise that right.
Only when the Soviets were too bankrupt to pay for the violent enforcement of compulsory union did the USSR come unraveled.
Meanwhile, we have the deliberate, made for TV examples of Ruby Ridge and Waco before us. There is a reason the federal government initiated these actions and saw to it that they were public spectacles. They were intentional demonstrations of power and ruthlessness.
There should be no doubt that the statists would resort to homicides - many and spectacular - to sustain the status quo. Intimidation, punishment and murder is at the heart of every dedicated statist, because without those there is no control over dissidents.
There need not be a shot fired, but at present there most certainly would be.
“I think many would follow orders to suppress insurrection with greater or lesser degrees of enthusiasm.”
I’ve seen no recent evidence that our soldiers and Marines are Nazis, gestapo and eizengruppen who would goosestep into their homes and kill their mothers and fathers in bed.
Perhaps you can point out recent training exercises where our troops were encouraged to murder US citizens by the thousands.
So you're assuming that it's one lone guy or a few protestors against federal tanks? What if the first pictures are of armed mobs in the streets killing each other, or militia or paramilitary groups seizing federal buildings or stringing up dissenters?
Besides assuming that the federal government would be the ones to initiate the use of force, you may also be assuming that the military hasn't learned anything in 50 or 150 years -- that they'd go in with tanks against protestors or mobs, rather than use other tactics and technologies.
There can be all kinds of views on this...maybe there would be killings, maybe not.
What we know for sure is that unalienable rights will not defend themselves...that’s just a fact.
The fundamental question is whether or not we have the fortitude, convictions and courage of the Founders. That’s the question. They had the same fears...as did the secessionists in 1860.
Further, there need not be 100% support in a State to move to secession...just a very vocal minority back up a State Legislature.
Then we see what happens and so will the rest of the world see it this time as well. There was no internet in 1860 and not broadcast media either. Every secession movement throughout history is different. This one will be as well.
“Perhaps you can point out recent training exercises where our troops were encouraged to murder US citizens by the thousands.”
Waco is a relatively recent example where the military assisted in the murder of scores of US citizens.
Cadre would not be military, it would be ‘law enforcement’, but I have no doubt that presently many or most would ‘suppress domestic terrorists’ as defined and identified by their chain of command.
Who shall guard the guards is a question that has given every tyrant sleepless nights, but on balance in the course of human history, the guards do what their paymasters and centurions tell them to do.
Agreed on all points.
If and when this begins, some States will stand up with the people against the tyrannical Administration. The only way anyone will conquer Texas or Montana or any of number States is to nuc us and I am 100% certain any such Presidential order will be refused and turned against him.
To put all in perspective, Texas nor Texans feel any animosity toward the United States of America, we love America just as many other patriots do. I do not think secession will become necessary. The more dictatorial nobama becomes (i.e. Executive Orders bypassing Congress) the less even the mainstream dems will maintain their backing. At that point either nobama will back off or will be escorted to the plane taking him to his true friends in the muslim world.
“I put more faith in the patriotism of our military.”
These days the Lon Horiuchis may outnumber the Robert E. Lees.
“The article is thorough and accurate but that is irrelevant in the real world.”
What Chairman Mao had to say is a lot more relevant, given today’s circumstances.
In the coming struggle, who will prevail?
Some of us see the glass as half full most of the time and others always see it as half empty.
And we tech nerds see the glass as twice as large as it should be. :)
“Some of us see the glass as half full most of the time and others always see it as half empty.”
I see a future glass as behind a curtain, contents unknown.