-Submitted by David Drumm (Nal), Guest Blogger
On November 9, 2011, Justice Antonin Scalia will preside over the reenactment of Texas v. White (1869). The event is part of the Frank C. Jones Reenactment Lecture hosted by the Supreme Court Historical Society.
Each side get 20 minutes to present their case and then Justice Scalia will render his opinion. These reenactments are apparently enjoyed by the Justices who participate.
That the case involved bonds seems insignificant when compared to the gravity of the question of jurisdiction: was, or was not, the State of Texas one of the United States. If Texas was not a state, the Supreme Court would have no jurisdiction. Chief Justice Salmon P. Chase (above) recognized the monumental nature of this question, “[w]e are very sensible of the magnitude and importance of this question … and we must determine it in the exercise of our best judgment, under the guidance of the Constitution alone.”
J. Chase discusses the origins of the Union of States and notes that the Articles of Confederation declared the Union to “be perpetual.” And then comes the money quote:
And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?
What impeccable logic!
J. Chase therefore concludes:
Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null.
The ordinances of secession, enacted by the States of the Confederacy, were not constitutional.
Screenwriter Dan Turkewitz wrote to 10 Supreme Court Justices (including O’Connor) regarding a comedy about Maine seceding from the United States. J. Scalia responded (in part):
To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.
Constitutional issues are not resolved by war. This constitutional issue was resolved by the brilliant (in spots) decision of Salmon P. Chase. Reading some parts of this decision taxes one’s attention span.
It is now time for the commenters to present their case.