Texas v. White

-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.

H/T: Salon, Internet Archive, VC, WSJ.

91 thoughts on “Texas v. White

  1. Nal:

    Just reading some of the things that take place in a secession,its quite obvious that when Governor Perry was kicking that about did he really think it through?
    I doubt it your own currency,your own Army ,Navy etc.

  2. “What can be indissoluble if a perpetual Union, made more perfect, is not?”

    **************

    I had no idea Justice Chase was channeling grand Master Jedi Yoda as he wrote those words. Help him, he did.

  3. It is an injustice that the right of Texas to secede from the Union is not available and I wish them Godspeed in regaining and utilizing that right.

  4. The five to three decision, read on April 15, 1869, by Chief Justice S. P. Chase, held the Union to be indestructable and, thus, not dissoluble by any act of a state, the government, or the people. The court, therefore, repudiated the doctrine of state sovereignty, but it clearly supported the federal in contradistinction to a consolidated system of government, for the decision continues: “But the perpetuity and indissolubility of the Union, by no means, implies the loss of distinct and individual existence or of the right of self-government by the states.” On the remaining points the court recognized Paschal’s authority to represent the government of Texas, ruled that the contract between White and Chiles and the Texas State Military Board was unlawful since it furthered the Confederate cause, and held that since White and Chiles were unlawful holders, they could not transfer the bonds.

    ***********************

    Damn and just when you think money is not the issue….Just when you think you have state Sovereignty….

    But the question begging in my mind that has never been answered because it was never presented….was did Texas have the right to get out based upon the contract (Joint Resolutions, both state and Fed) when slavery was “Abolished”…What people do miss is the Original Borders of Texas went all the way up to Southern Montana….Texas was forced to cede the area North of the Imaginary Mason-Dixon Line….Was not this the Missouri Compromise?

    But then the 4th Section of the 14th Amendment is passed which abrogates the payments for property:

    Section 4.
    The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

    Which answers the question…..But then again when exactly was the Amendment passed and eventually ratified by 3/4 of the states at that time….Seems to be about 1867/8….then begs the question of…congress shall pass no laws….that deprive….so…if this is still the law….then is the 14th Amendment as written in conflict…..with other parts of the Constitution…ah what has been decided is section 5….saves…the whole….he Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Seems like a grab of the 10th to me….but call me skeptical…..

    Great article nal….

  5. Article XI. Canada acceding to this confederation, and adjoining in the measures of the united States, shall be admitted into, and entitled to all the advantages of this union; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States.

    ——————————————————————————–
    Using the logic of Chase, it would appear Canada has a standing invite to join the Union and there does not even have to be a vote on the matter.

  6. AY–I’m not a Canadian, eh?

    Interesting about the Amero…If the Federal Reserve is unable to inflate the Amero as it has the dollar, then I’d say the entire notion is DOA.

    Also, adding on to my previous post re the logic of Chase…

    It seems to me (and I am not a lawyer, though I did play one on stage, so I can at least act like one) that Chase is applying a term from a previous contract and making it operative in a subsequent agreement in order to obtain the desired result.

  7. Before the Civil War, there were movements in the northern states to secede, and no one argued that secession was unconstitutional.

    Justifying the use of force under the logic that the union was perpetual is just another rationalization.

    Lincoln started the northern participation in the Civil War to protect Fort Sumpter, showing again the importance of property rights.

    Nice to see this article posted on September 11th. If, magically, no one had died that day, do we think the wars would have been averted?

  8. Catullus,

    Let us just say….The RESULT was desired….It was the conflated way to get there…They were applying laws that did not exist at the time of the initial suit…And we have laws against post facto laws…Not that this has ever bothered a court before…. in its reasoning…

  9. Martin,

    No but hell no…We had been involved in other pursuits to achieve the desired results before…just more covertly….We had all of the reasons to get involved when the USS Cole was bombed…we used that excuse in WWI and II…

  10. Martin:

    “Before the Civil War, there were movements in the northern states to secede, and no one argued that secession was unconstitutional.

    Justifying the use of force under the logic that the union was perpetual is just another rationalization.”

    *********************

    Demanding that one perform the solemn promise upon which we have all relied and, upon that reliance, materially and unalterably changed our respective positions, is just another rationalization too, I suppose.

    Do you know what a rationalization is? Lincoln started the “northern participation in the Civil War,” as you call it, because American troops and its flag were fired upon by insurrectionists. Even then, he tried everything possible to avoid the conflict. A square kilometer, more or less, in Charleston Harbor was hardly the reason as any school boy with a history book and a mind to read it knows.

    The fact that there were some Northerners, like Frederick Garrison, calling for Northern secession is about as red a Red Herring as I can imagine. I suppose there were Southenrners in the South calling for loyalty to the Union, too. General George Thomas–the “Rock of Chickamauga” — a Virginian who fought for the North, comes to my mind. Neither man represented the prevailing sentiments in their respective areas.

  11. 1. Would Scalia hold that there is no way for (say) Haiti to leave the Union, if it were admitted one day, and even if all sides decided that that was for the best? It seems to me that Scalia’s argument, as presented, would hold that, and this result, I claim, is nonsensical politically. It turns the Constitution into a “suicide pact”.

    2. If the Articles of Confederation declared the Union to be perpetual, did they mean by virtue or the Articles, later superseded? And why would this clause alone continue in force, if all the others were made of no effect.
    This expression is of a wish or hope, that the union be perpetual, similar to the the wish, or commitment, that a marriage be perpetual. A wish is not an authorization to some to compel by arms others to stay, as United States President James Buchanan said in his Fourth Annual Message to Congress on the State of the Union December 3, 1860. (wikipedia:secession)

  12. mespo, you say “Even then, he tried everything possible to avoid the conflict. ”

    I agree that he tried everything he could to not be seen as the aggressor, to not fire the “first shot”, to get the South to fire the first shot. He did not try abandoning the fort, so one can not say he tried “everything”.

    He could not hold the fort, it seems obvious, so why insist on losing it in a fight? Because he felt he was “right” and the federal government was “entitled” to have a fort in South Carolina? And he wanted to preserve the union at all cost. At the cost of violating his oath to uphold the constitution for example.

    Even John Yoo argues the same way: that the president’s highest constitutional duty is to protect the country. Funny, it isn’t mentioned in the oath of office. . .

  13. “Using the logic of Chase, it would appear Canada has a standing invite to join the Union and there does not even have to be a vote on the matter.”

    Catullus,

    Canadians are far too smart to ever want that, though they could only make us better. Great country, beautiful and great people, too cold though.

  14. “I claim, is nonsensical politically. It turns the Constitution into a “suicide pact”.

    Martin,

    This is a tad hysterical from my perspective. Suicide Pact? Really. More like creating a nation where its people are agreeing collectively to band together. Once that bond becomes breakable though, it becomes every person for themselves. In the case of the South’s treason it was motivated by greed and the evil belief they had the right to enslave and despoil people. Is that what you’ve been hiding in your writing here? Are you one of the people who still believes in the South’s treason and rapacious greed?

  15. Mike Spindell–if the south was treasonous as you claim, then why were none of the political and military leaders ever tried and convicted of the offense?

  16. Nal–“It is clear that Lincoln saw supporting the perpetuity of the Union was supporting the constitution.”

    Which is somewhat problematic as the Constitution mentions nothing of the perpetuity of the union.
    I think Martin nails it down rather well in one of the above posts–point #2.

  17. Catullus,

    Read history…After the American Civil War, no person involved with the Confederate States of America was tried for treason, though a number of leading Confederates (including Jefferson Davis and Robert E. Lee) were indicted. Those who had been indicted received a blanket amnesty issued by President Andrew Johnson as he left office in 1869.

    I think this answers your question…..They were going to but for that thing called amnesty……

    Read about 40 acres and a mule…that too was undone by Johnson….really….All the Southerners property was seized by Orders of Sherman….

    The only part of the Southern property that was not transferred back to the original owner was the Plantation owned by Robert E Lee…it is now known as Arlington Cemetery…

    I think seizing of property is a greater burden that conviction of a crime…don’t you?

  18. Catullus:

    Which is somewhat problematic as the Constitution mentions nothing of the perpetuity of the union.

    Actually, it does. The phrase “to form a more perfect union” does exactly that, as pointed out by J. Chase.

  19. Nal–“Actually, it does. The phrase “to form a more perfect union” does exactly that, as pointed out by J. Chase.”

    Chase is grasping a very large straw indeed as perfection and perpetuity are two very different things.

  20. The ruling in Texas v White had the net effect effect of creating an ex post facto law for a crime, something expressly forbidden by the Constitution.

    By declaring that secession did not occur Texas, along with the other states, was engaging in rebellion, a treasonous act. This was punishable by death. No ex post facto law can deal with anything but a civil matter.

    Also, the ‘perpetual’ and ‘more perfect’ union basis is flawed. First off, the perpetuity of the Articles lasted only 8 years. Secondly, the ‘more perfect union’ phrase is found only in the Preamble to the Constitution. Preamble don’t carry any legal weight unless there is text in the actual document to buttress any statement made in the Preamble.

    Also, mighty convenient that Justice Chase dismissed the case against Jefferson Davis a mere 6 weeks before rendering the opinion on Texas v White. This act removed the possibility of the right to secession from being properly argued on its merits.

  21. The ruling in Texas v White had the net effect effect of creating an ex post facto law for a crime, something expressly forbidden by the Constitution.

    By declaring that secession did not occur Texas, along with the other states, was engaging in rebellion, a treasonous act. This was punishable by death. No ex post facto law can deal with anything but a civil matter.

    Also, the ‘perpetual’ and ‘more perfect’ union basis is flawed. First off, the perpetuity of the Articles lasted only 9 years. Secondly, the ‘more perfect union’ phrase is found only in the Preamble to the Constitution. Preamble don’t carry any legal weight unless there is text in the actual document to buttress any statement made in the Preamble.

    Also, mighty convenient that Justice Chase dismissed the case against Jefferson Davis a mere 6 weeks before rendering the opinion on Texas v White. This act removed the possibility of the right to secession from being properly argued on its merits.

  22. I think if Texas left leave the union it would immediately be re-seized by an invasion force Mexican troops and easily retaken. Given this very credible possibility — I don’t think Rick “Blow Dry” Perry really thought through his scenario. The bellowing whine from the Anglo Texans would be enough to cause no one to shed even a single tear.

  23. Nal you say “The phrase “to form a more perfect union” does exactly that”

    I think that a union that has to be held together by force is a less perfect union. Why do you think it is a more perfect one? Are you a closet tyrant?

  24. Martin,

    Fine, but in the context of your response my comment was a fair one. your point appeared to be that a State joining the Union under a condition of non-secession would be like committing suicide. I disagree, since to me you can’t form a stable nation, with the ability of large sections to secede at their pleasure.

  25. Mexica–“I think if Texas left leave the union it would immediately be re-seized by an invasion force Mexican troops and easily retaken.”

    Given the overall anti-Mexican/anti-illegal immigrant sentiment in the mind the American electorate, it would be an easy sell to rush them to the defense of the weak and innocent new Republic of Texas.
    Let’s assume though for fun, that the Mexican government would actually be so crazy as to invade the new Republic of Texas. A simple internet search reveals that as of 2001, 36% of Texans had firearms “in or around” the home.
    http://www.washingtonpost.com/wp-srv/health/interactives/guns/ownership.html

    Any military force entering the Republic of Texas would be faced with a protracted guerrilla war, and the US probably would not even have to invade, but the passions of the remaining American people would certainly demand their rescue, after-all, don’t we already do that with regularity in other parts of the world?

  26. Mike, you ask “Are you one of the people who still believes in the South’s treason and rapacious greed?”

    The lesson from the civil war and slavery is not that the people in the south are insensitive to humanity, being blinded by the availability of cheap labor, upon which their lifestyle was based, and which was non-negotiable, but that we today are insensitive to humanity and blinded by the availability of cheap labor, upon which our lifestyle is based, and which is non-negotiable.

  27. Mike you say “you can’t form a stable nation, with the ability of large sections to secede at their pleasure.”

    Then the question becomes, “what procedure should a state follow if it wishes to secede”, rather than “a state may never secede”.

  28. Catulus:

    “if the south was treasonous as you claim, then why were none of the political and military leaders ever tried and convicted of the offense?”

    ****************

    All Southern rank and file could be pardoned and reinstated as U.S. citizens if they took an oath of allegiance to the Constitution and the Union and pledged to abide by emancipation. High Confederate officials, Army and Navy officers, and U.S. judges and congressmen who left their posts to aid the southern rebellion were excluded from this pardon. This was part of Lincoln’s 10% Plan. After Lincoln’s assasination, President Johnson rebuffed the Radical Republicans and continued Lincoln’s generous 10% plan for Southern rank and file.

    However several prominent Southern leaders were indicted for treason like Jefferson Davis, Robert E. Lee, and James Longstreet.Through the intervention of President Johnson and General Grant most high ranking Southern officials were pardoned. Grant had no authority to pardon anyone at Appomatox Courthouse, but he insisted to President Johnson that he honor the terms Grant had promised to Lee.

    Grant said to the President, “I have made certain terms with Lee, the best and only terms. If I had told him and his army that their liberty would be invaded, that they would be open to arrest, trial, and execution for treason, Lee would never have surrendered, and we should have lost many lives in destroying him. My terms of surrender were according to military law, and so long as General Lee observes his parole, I will never consent to his arrest. I will resign the command of the army rather than execute any order to arrest Lee or any of his commanders so long as they obey the law.”

    President Johnson granted amnesty just before he left office. This did not exonerate their obvious treason it merely negated punishment for it. Those pardoned were still subject to politcal disabilities.

  29. Martin:

    “The lesson from the civil war and slavery is not that the people in the south are insensitive to humanity, being blinded by the availability of cheap labor, upon which their lifestyle was based, and which was non-negotiable, but that we today are insensitive to humanity and blinded by the availability of cheap labor, upon which our lifestyle is based, and which is non-negotiable.”

    **********************

    With acknowledgment and kudos to my blog friend Buddha, I offer this retort:

  30. Jim:

    Preamble don’t carry any legal weight unless there is text in the actual document to buttress any statement made in the Preamble.

    Not true. In Joseph Story’s Commentaries on the Constitution:

    We have the strongest assurances, that this preamble was not adopted as a mere formulary; but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government.

    This is what J. Chase did, he used the Preamble to discern the characteristics of the “more perfect union.”

  31. Long before Texas v. White, Joseph Story wrote in Book III, Chap. 5:

    But a constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature, for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty, necessarily requires, that every interpretation of its powers should have a constant reference to these objects. [emphasis mine]

    Story was nominated to the Supreme Court by Madison. The claim that the “perpetual union” of the Articles of Confederation was rendered null and void by the Constitution is a fantasy not shared by the founders.

  32. Nal, I disagree and offer the below as evidence, including one piece from the same Joseph Story.

    In 1788, Virginia delegate and future U.S. president James Monroe (1758–1831) wrote Observations upon the Proposed Plan of Federal Government. There (as reprinted in The Founders’ Constitution), Monroe expressed his opinion that the preamble would be an important part of the Constitution: “The introduction, like the preamble to a law, is the Key of the Constitution. Whenever federal power is exercised, contrary to the spirit breathed by this introduction, it will be unconstitutionally exercised, and ought to be resisted by the people.”

    Forty-five years later, U.S. Supreme Court justice Joseph Story (1779–1845) wrote in Commentaries on the Constitution (as reprinted in The Founders’ Constitution) that the preamble’s “true office [function] is to expound [explain] the nature, and extent, and application of the powers actually conferred [presented] by the constitution.” *

    *Please note, as stated above, the phrase ‘actually conferred by the Constitution’.

    The U.S. Supreme Court, however, has given no weight to the preamble when interpreting the Constitution. In the 1904 case of Jacobson v. Massachusetts, for example, the Reverend Henning Jacobson claimed that the preamble’s “blessings of liberty” made it illegal for Massachusetts to force him to have a smallpox vaccination. The Supreme Court rejected the notion. It said, “Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States.”

    Furthermore, on the subject of sovereignty, which is key, the Supreme Court had these rulings…

    The legal effect of the Declaration of Independence was to make each new State a separate and independent sovereign over which there was no other government of superior power or jurisdiction. This was clearly shown in M’Ilvaine v. Coxe’s Lessee, 8 U.S. (4 Cranch) 209, 212 (1808), where it was held:

    “This opinion is predicated upon a principle which is believed to be undeniable, that the several states which composed this Union, so far at least as regarded their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign states, and that they did not derive them from concessions made by the British king. The treaty of peace contains a recognition of their independence, not a grant of it. From hence it results, that the laws of the several state governments were the laws of sovereign states, and as such were obligatory upon the people of such state, from the time they were enacted.”

    And a further expression of similar import is found in Harcourt v. Gaillard, 25 U.S. (12 Wheat.) 523, 526, 527 (1827), where the Court stated:

    “There was no territory within the United States that was claimed in any other right than that of some one of the confederated states; therefore, there could be no acquisition of territory made by the United States distinct from, or independent of some one of the states.

    “Each declared itself sovereign and independent, according to the limits of its territory.

    “[T]he soil and sovereignty within their acknowledged limits were as much theirs at the declaration of independence as at this hour.”

  33. To the non-lawyers, such as myself, who read this blog, these discussions on the Constitution and the Civil War are always fascinating and informative. This is the fourth or fifth such discussion that I can recall and there is always something new or something worded differently that provides insight.

    I just want to thank each of you.

  34. The Declaration of Independence has something to say about perpetual union: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it”.

    The Declaration is not trying to establish a law here; it is expressing the common sense of the people of that time, and I think of all time.

    Governments, naturally, do not want to be abolished, and want to claim a “right to life” other than the consent of the governed, and to assert that “right to life” by force.

    The interpretation that some people here give seems to be that the “consent of the governed” is the consent of the people alive at the time, and that the consent of those presently living is constrained by the actions of those now long dead. This is a “new speak” conception of freedom: that the founders desired to withhold from us a right that they themselves recognized as self-evident and unalienable, and which they felt compelled to exercise on their own behalf.

  35. Let’s cut to the chase here and get beyond the “lawyerly” back and forth citations of what the constitution means and bring us into the real world.
    To begin with the whole States’ Rights issue is just a ruse for those who wanted to continue to allow tyranny within their individual bailiwick. In my lifetime and before, it meant the right of the South to impose Jim Crow laws and ensure that black people were kept subservient. Further ensuring that the dubious “Southern Nobility” remained in power.

    It also meant, again in the South, the further imposition of a “class” system, that kept the “Poor White Trash” (PWT’s) in their place, pacifying them by the knowledge that at least they were better off then black people, who had to act subservient to them. Defend States Rights all you want with your nitpicking favorable citations, but at least be honest about where you are coming from.

    When you look at a US map, with the State outlines super-imposed, you see a hodge-podge of shapes making little sense. If you further look at a table of population per State you see strikingly large variants, yet each one of these “sovereign entities” is entitled to equal representation in the Senate. The idea of these areas as “sovereign entities” is anachronistic.
    However, maintaining this fiction is quite useful to those who are empowered behind the scenes. It ensures that cash is the dominant force in the country and it is far easier to corrupt government on a local level. “States Rights” advocacy is far from a noble effort to preserve The Constitution. It is the lynch-pin of a group of people who want to undermine freedom in the service of their particular political belief system.

  36. Mike,

    Ken Macleod is a sociologist by training but also a damn fine science fiction writer. In one of his books, the protagonist is worrying about how initiate first contact with an alien species. One of his concerns is explaining that some humans still practice nationalism. He likens it to having to tell someone you’ve just met that you have a venereal disease. When you look at Earth from space, there are no lines and labels.

  37. “When you look at Earth from space, there are no lines and labels.”

    Gene,

    Ain’t it the truth and that is the sorrow and the pity of human advancement.

  38. Bob,Esq. 1, September 12, 2011 at 11:32 am

    Jim,

    What point are you making with your chain of sovereign title search you provided above?

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~

    The point being that Salmon Chase made an incorrect ruling and used convoluted logic in doing so. Even the SCOTUS must use honest thought when ruling. They can use what is expressed in the Constitution or what is implied if that implication has solid foundation. Previous rulings must also be considered. These are the things I provided.

    Keep in mind that Texas v White is a ruling made during Reconstruction.The case was brought under a Governor appointed, not elected. He (Governor Elisha Pease) was appointed by Gen. Phillip Sheidan, one of the most barbaric Union Generals of the war. Had it not been ruled that the states were in rebellion and not secession, he, and all his cohorts could have been subject to trial for their prosecution of the war. This was not lost on the Chief Justice, Salmon Chase. He was Lincoln’s Treasury Secretary.during the war.

    Also of note is that Salmon chase dismissed the case against Jefferson Davis a mere 6 weeks before ruling on Texas v White. He informed Davis’ lawyer that a Nolle Prosequi (no further proceeding) had been entered. This was necessary as Davis would have defended secession on its merits. Chase himself had thought Davis would win. Texas v White was a contrived case that allowed Chase to rule on secession in a tangential way, never addressing it properly. Texas v White was case about ownership of bonds.

    Here is a quote from Chase (in 1867) when the govt was building a case against Davis.

    By that time [seven months after Davis’ capture and incarceration awaiting trial], prominent Northerners — especially those in the legal profession — had seen the weakness of the government’s case against Davis and the handful of Confederates yet being held. One who saw it was the Chief Justice [Salmon P. Chase] who would rule on their appeal in the event one was needed, which he doubted. “If you bring these leaders to trial it will condemn the North,” Chase had warned his former Cabinet colleagues in July, “for by the Constitution secession is not rebellion.” As for the rebel chieftain, the authorities would have done better not to apprehend him. “Lincoln wanted Jefferson Davis to escape, and he was right. His capture was a mistake. His trial will be a greater one. We cannot convict him of treason. Secession is settled. Let it stay settled.”

    The reason I dug to find actual legal grounds why the Texas v White ruling is incorrect is that so many don’t want to hear about the background and setting to this case…only the legal justification. I can provide the background and legal points necessary to show the ruling was wrong.

  39. In Cohens v. Virginia (1821) J. Marshall wrote:

    The people made the Constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake resides only in the whole body of the people, not in any subdivision of them. [emphasis mine]

    An attempt by a part to unmake what the whole has made is usurpation.

  40. Jim,

    That’s an excellent presentation on the judicial realism behind Texas v. White, but it doesn’t explain the reason you put forth that extensive chain of sovereign title above.

    Are you claiming that ultimate sovereign title was never ceded to the Fed and thus the states retained within its soil the sovereign right to secede just as they retained the sovereign right to exercise the power of eminent domain?

    See how that notion of specifically enumerated powers thing works?

  41. Nal,

    Do you really think you can bypass Article V and amend the text of the document with dicta from a SCOUTS opinion?

    Do you have any idea what you’re arguing for? Perpetuity means irrevocable under any circumstances; which would contradict Article IV’s guarantee of a republican form of government. A guarantee against tyranny.

    Consider this:

    What if the North decided to ‘make slavery legal’ and certain states seceded because it objected to said tyranny?

    Gonna tell me that your imaginary perpetuity clause in the constitution bars those states from seceding? Bullshit. See the Declaration of Independence and Article IV’s guarantee of a republican form of government.

  42. Blouise,

    I find Jim’s argument compelling as well. However his chain of sovereign title presentation was a series of reasons without a claim. Chain of sovereign title is a purely timeless objective argument; whereas a judicial realism argument is wholly dependent on the circumstances of the time.

  43. Bob,Esq. 1, September 12, 2011 at 5:29 pm

    Jim,

    That’s an excellent presentation on the judicial realism behind Texas v. White, but it doesn’t explain the reason you put forth that extensive chain of sovereign title above.

    Are you claiming that ultimate sovereign title was never ceded to the Fed
    and thus the states retained within its soil the sovereign right to secede just as they retained the sovereign right to exercise the power of eminent domain?

    See how that notion of specifically enumerated powers thing works?

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

    Where do you want me to go with this, Bob? I could give extensive background on the previous threats of secession and how the Federal Govt did/did not respond. I can show how president James Buchanan felt that he had no grounds on which to keep the Southern States in the Union. I can show numerous occasions when secession was brought up and it never entered the realm of the judiciary. It was always seen as a political issue.

    The Court cases I cited is for those that want to dance on the pinpoint of logic that it was proper that the Court hear this issue. They show that, even if the Court had jurisdiction, Chase did not follow already set judicial guidelines and made a ruling contrary to established legal principles.

    One more point on the actual case: Since the ruling was so broad, Chase should have recused himself from the case as he was unfit to render an impartial ruling. Why? Well, he was a member of Lincoln’s Cabinet and, had secession been found to be Constitutional, the whole of the Lincoln administration could be found complicit in the pretext and conduct of the war. Hanging was a real possibility for some of these men, including Phillip Sheridan, the Union General that had appointed Pease as Governor of Texas. Pease was Governor at the time the case was put before the SCOTUS. Chase himself ‘could’ have been found guilty of some crimes in his position as Secretary of Treasury.

    I would refer you to my earlier quote from Chase as to how he felt about secession as late as 1867, a period when he was Chief Justice. Why the sudden about face on his part? That is shown in the ruling of Texas v White itself. Below is a quote from Chase in the ruling.

    “It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.”

    The above quote makes it obvious why such as ruling was necessary on the part of Chase and others. What would have flowed from secession being found to be Constitutional would have been disastrous for any associated with the Lincoln Administration.

    I can give you more on the background of secession in our history if you like, but don’t want to make any one post too long.

  44. The basis for the indivisibility of the Union from any constituent part is found in the Letter of July 20, 1788 from James Madison to Alexander Hamilton. Hamilton was much concerned about a New York anti-federalist contingent who sought conditional ratification of the Constitution reserving the right to secede if the fancy overtook them. Virginia, too, considered such a conditional acceptance but despite entreaties from Patrick Henry, it was overruled. The Father of the Constitution answered the notion of future dissolution of the Union at the caprice of any state as follows:

    My dear Sir N. York Sunday Evening [July 20, 1788]
    Yours of yesterday is this instant come to hand(1) & I have but a few minutes to answer it. I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and forever.It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification. What the New Congress by virtue of the power to admit new States, may be able & disposed to do in such case, I do not enquire as I suppose that is not the material point at present. I have not a moment to add more than my fervent wishes for your success & happiness. Js. Madison

    [P.S.] This idea of reserving right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection.

    [emphasis mine]

  45. Bob, Esq.,

    This is, at this moment, outside the realm of the Supreme Court but, if I’m following Jim’s argument properly, shouldn’t I be thinking of certain similarities between the pretext of Texas v. White and the present day issue regarding torture?

  46. I found this while researching the matter under discussion here. It is an article from the New York Times Archive entitled “The Right of Secession” and published on Nov. 10, 1860.

    Excerpt from that article (this excerpt followed a quote of the very same letter from Madison that mespo just quoted):

    “New-York finally abandoned her claim, and “adopted the Constitution in toto, and FOREVER.” And so did all the other States. No one of them has any right to secede, — or to withdraw from the obligations and responsibilities of the Union. In the language of Judge SPENCER ROANE, President of the Electoral College of Virginia, in 1808, “it is treason to secede.”

    http://www.nytimes.com/1860/11/10/news/the-right-of-secession.html?scp=29&sq=November+10%2C+1860&st=p&pagewanted=all

  47. OK..since we’re now quoting Madison….

    The Constitutional Convention in 1787 considered adding to the the powers of Congress the right “to call forth the force of the union against any member of the union, failing to fulfill its duty under the articles thereof.”

    This clause was rejected after James Madison spoke against it. He said,

    “A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.”

  48. Bob, Esq.:

    Gonna tell me that your imaginary perpetuity clause in the constitution bars those states from seceding?

    My perpetuity concept? I’ve cited Lincoln, Chase, Story, and Marshall. There’s also John Quincy Adams, Daniel Webster, Madison, and Andrew Jackson (through Edward Livingston).

    I guess I imagined all of those people too.

  49. Blouise:

    Judge Spencer Roane was married to Anne Henry, the daughter of Patrick Henry. I imagine family dinners at the Henry house in Scotchtown were quite tense when the subject of the ratification of the Constitution came up and the implications thereof.

  50. Jim:

    You quote Madison’s words correctly if not in context. Madison was assuredly no believer in centralized despotism, likewise he was no pure believer in federalism either, as I demonstrated on another thread concerning Madison’s views on state nullification of federal law. He was in fact a believer in the hybrid form of government found in the Constitution, of which he was rightly proud.

    http://jonathanturley.org/2011/09/11/is-this-man-the-founder-of-the-republican-party/

    9/11/2011 @ 8:40 p.m.

  51. This is one of those arguments in futility….What did someone mean by some word…I think sometimes the decision is made before the decisions are rendered which are a mere means to an end….In order to uphold one is the denial of another….I recall a colleague of Nader which taught me property law…that said sometimes bad decisions make bad laws but you are stuck with them…so learn how to use them to your advantage….I think White is one of those decisions…Just like Marbury…

    Just like the Noriega decision that said that the 4th Amendment has no applicability outside of the US…Justifying using him to our advantage and when he was no longer a use…then he is tried on drug charges that I full well believe were condoned by the US and all of its many agency’s for many years….and when he became a greater liability then it was time to take him out…..That is just my opinion….

  52. mespo,

    Poor Patrick … wine probably helped … or made it worse. Didn’t the excesses of the French Revolution cause him to modify his anti-federalist views? I remember reading that he died of stomach cancer … drank some sort of poison to kill himself?

    I didn’t know his daughter was the judge’s wife. Learn something new all the time on this blog. :)

  53. Jim,

    As I said before, your arguments regarding the inherent contradictions regarding the Texas v. White decision are compelling. However the chain of sovereign title analysis is an entirely different kettle of fish and doesn’t help Texas at all. It puts Texas on equal footing and in privity of estate with the 13 original colonies subject to a declaration of covenants and restrictions against tyranny dated July 4, 1776. Kind of like a non-abandonable paper road prohibiting tyrannical things like slavery.

    The issue here though is whether the constitution is irrevocable and exists in perpetuity; and that is an absurd notion at best.

  54. Mespo: (quoting Madison) “Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and forever.”

    Mark,

    As you know, Madison’s track record on compacts requiring unanimity and lasting forever is rather poor. After all, his biggest embarrassment was Article VII was it not? I believe Article 13 of the Articles of Confederation required unanimous rescission before he could pave the way for an Article VII ratification of a subsequent compact; did it not?

    Acceptance of your argument that the constitution is irrevocable and exists in perpetuity necessitates the negation of the foundational premise upon which our republic is based–i.e. no tyranny. And by tyranny I don’t mean how it’s depicted in film and television; I mean the exercise of power beyond which that no one has a right to–whatever form that may take.

    Accordingly, the notion that our constitution shall exist in perpetuity and is irrevocable makes these words completely meaningless:

    “When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

  55. Blouise,

    The only similarities between the torture issue and Texas v. White that I see at the moment come down to simple judicial realism. Unless I’m missing some other more specific point you’re raising?

  56. “This is one of those arguments in futility….What did someone mean by some word”

    AY,

    I have to agree with you on this. This all comes down to whose ox is being gored politically and the reactions of the ox’s owner. In its’ War of Treason the South was seeking to uphold its’ institution of slavery by actually spreading the practice to all new members of the Union. Like the German Generals and Hitler after WW1, their abysmal loss need to be justified, since if God was on their side how could they lose? Prior to the War the abolition movement put too much heat on them and so they needed leverage to threaten with and what better than secession. In the end they were trying to perpetuate a disgusting institution for the benefit of their wealthy classes and maintain in their States the oligarchic set up that kept both Black and White people impoverished.

    Today it is very hard for even racists to justify slavery as an institution, as it is for its successor Jim Crow. However, if you can just find the right words and justifications you can frame it into portentous language that removes the underlying visceral roots from the discussion. Find whatever quotes and decisions they might, those who would justify secession are merely after the fact justifying their particular political prejudices. I believe this is so because it is obvious that a country can’t set up a governmental structure that allows for elements to secede without being a Potemkin institution.

    This is not only true here, but throughout the world. Study the rise of the institutions of feudalism and the power of kings, that was constantly challenged by other nobility and their holdings. The “States” were formed under similar circumstance and should have become merely local districts of governance, however, the “nobility that ran each State did not want their power impinged upon and therefore the Constitution did have unseemly modifications Nevertheless, by logic the power to secede
    peacefully could not exist, or you would have had chaos by 1800.

    As to the question of the Declaration of Independence stating that we had the right to rise up against tyranny when governments became despotic, there is no dichotomy here. People and local entities do have that right and it is called revolution. It always exists within the range of possibilities
    people have when they are unhappy with their government. At times it may be justified in the minds of those wishing to overthrow what they deem to be despotism. If that is the can then from the standpoint of the government being rebelled against, that rebellion is treason. Those that would seek to justify the South’s actions after all these years would cloud that fact in the blather of citation. From the point of Lincoln’s election the South made plans to rise up and undo it. Their firing on Fort Sumpter was an act of revolution from a federal perspective and Lincoln answered back. Jeff Davis, Bobby Lee and the rest were traitors Lincoln’s convenient assassination and by Johnson’s capitulation in failing to follow through with Reconstruction. Pathetically, in many ways the South lost the War, but won the peace for many, many years.

  57. “If that is the[y} can[,]”

    Please excuse these and too manyother typos due to my lack of proof reading prior to submission.

  58. Bob, Esq.:

    Acceptance of your argument that the constitution is irrevocable and exists in perpetuity necessitates the negation of the foundational premise upon which our republic is based–i.e. no tyranny.

    The argument that the constitution is irrevocable is obviously false and is not my argument.

    The argument that acceptance of the constitution is irrevocable is also not my argument. As implied by Marshall above, the way out of the Union is for the whole people to assent to it.

  59. Nal: “As implied by Marshall above, the way out of the Union is for the whole people to assent to it.”

    Nal,

    First, your claim is categorically false since a complete rescission under Article V would require only 2/3 of the states.

    Second, you never responded to my earlier hypothetical:

    What if the North decided to ‘make slavery legal’ and certain states seceded because it objected to said tyranny?

    You’ve painted your argument a tad too broad.

  60. Mike,

    The Declaration is a legal instrument; a statement of the condition precedent to the very existence of the republic.

    The existence of tyranny severs the legal bonds automatically as a matter of law. Whether or not that devolves into a civil resolution or a revolution is a secondary matter at best.

  61. Bob,Esq. 1, September 13, 2011 at 10:27 am

    Jim,

    As I said before, your arguments regarding the inherent contradictions regarding the Texas v. White decision are compelling. However the chain of sovereign title analysis is an entirely different kettle of fish and doesn’t help Texas at all. It puts Texas on equal footing and in privity of estate with the 13 original colonies subject to a declaration of covenants and restrictions against tyranny dated July 4, 1776. Kind of like a non-abandonable paper road prohibiting tyrannical things like slavery.

    The issue here though is whether the constitution is irrevocable and exists in perpetuity; and that is an absurd notion at best.

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

    How the issue as you describe it relates to Texas v White is beyond the scope of the issue brought before the Court. These things did not need to be decided to determine ownership of bonds. Slavery? That’s another kettle of fish (red herrings) that was legal, like it or not, for a good part of our early history. Let’s not go there.

    A ruling narrowly crafted would have served best. It is obvious that the People of Texas owned the bonds originally. The bonds were then sold for the benefit of the People Of Texas. No matter what government was in control; the bonds were sold for the benefit of the same People. To then install another government and try to repossess the bonds is disingenuous. I would remind you that the reconstruction govt was not one installed by the People of Texas. It more closely resembled a provincial military dictatorship. How could such a government represent the People of Texas? Remember govt of, by and for the People?

    In all likelihood, the People of Texas, under any elected form of govt, would not have brought this suit in the first place. The bonds were once owned then sold. Payment was received. End of story.

    I would argue that all prior acts throughout our history showed that the aggregate unit of ‘We The People’ was confined to the State. The only instances when ‘We The People’ would be understood to mean the United States would be in powers delegated to the federal govt. In those cases, it was the states that authorized the United States to function on their behalf. No need to decide otherwise except to subvert the Constitution.

    On a slightly different note, but actually pertaining more to the issue at hand, is something I found that Scalia recently wrote:

    “I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. 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. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”) Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.”

    Admittedly, this is not a legal ruling. It was a response to a screenwriter’s question. it is revealing about Scalia’s reasoning, however. It makes one wonder how he could, in an unbiased way, hear the case as it comes up in November.

    Here’s the link about this…. http://www.newyorkpersonalinjuryattorneyblog.com/2010/02/scalia-there-is-no-right-to-secede.html

  62. “The Declaration is a legal instrument; a statement of the condition precedent to the very existence of the republic.”

    Bob,

    I’m not arguing that, nor am I arguing that people, even here, don’t have the right to revolt to oppose what they see as tyranny. I’m just stating that if your do engage in a revolt here, which secession was from the Federal perspective, then from Federal Government’s point of view you were committing treason by seceding. Obviously you know my sympathies did not lie with the South, but the fact remains if you know you are revolting (and they did) then you can’t grant yourself absolution after the fact. I took a small part in The Movement of the 60’s and we admitted that it was a revolution, even if some of us like myself eschewed violence and later realized our leadership was at times as bad as the government’s. I’m not going to cite “The Declaration” now as a retroactive justification..

  63. Bob, Esq.,

    My thoughts turned to the torture issue after reading Jim’s post yesterday at 6:30pm especially the following:

    “Chase should have recused himself from the case as he was unfit to render an impartial ruling. Why? Well, he was a member of Lincoln’s Cabinet and, had secession been found to be Constitutional, the whole of the Lincoln administration could be found complicit in the pretext and conduct of the war. Hanging was a real possibility for some of these men, including Phillip Sheridan, the Union General that had appointed Pease as Governor of Texas. ”

    If the torture issue should by some avenue come before the Supreme Court, wouldn’t certain Justices have the same problem, due to the party appointing them (as they all proved in the decision regarding the vote count in Florida in the Gore-Bush election)? In other words, could Bush, Cheney, etc “hang”?

    What I’m trying to do is understand the motivation that Jim suggests was behind Chases’s ruling by likening it to present day circumstances where I could imagine certain Justices driven by similar motivations.

    A reach, I know, but Jim’s argument is one of the best I’ve read on this matter over the last 2-3 years I’ve been on this blog.

  64. Mike S:

    “I’m just stating that if your do engage in a revolt here, which secession was from the Federal perspective, then from Federal Government’s point of view you were committing treason by seceding.”

    ***************************************

    Right you are. It’s all about perspective. From the point of view of King George III, the American colonists opposing the king’s rule were commiting treason. Under the law of Great Britain at the time he was undoubtedly correct. From the view of the law of the United States, the Southern states were engaged in open rebellion and hence its leadership were engaged in treason. Had the South won the war, I’m sure its law would have exonerated it as an act of liberation from oppression.

  65. James Madison would be the last person to want his personal beliefs on the Constitution to be held as foundation for interpretation. It is very clear that Madison thought the Constitution should be interpreted by looking to the interpretations adopted by the states at their conventions for ratification.

  66. NoWay:

    “James Madison would be the last person to want his personal beliefs on the Constitution to be held as foundation for interpretation.”

    ******************

    That’s why he scrupulously avoided anything to do with the Federalist Papers which laid out the basis and interprettaion for the new Constitution in Madison’s own words even as he sought its ratification.

    Noway, do you know anything at all?

  67. “As a guide in expounding and applying the provisions of the Constitution . . . the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it received all the authority which it possesses” (Farrand, IV, 447-48)

    The amount of deference that should be given to the Federalist Papers in constitutional interpretation has always been somewhat controversial. As early as 1819, Chief Justice John Marshall noted in the famous case McCulloch v. Maryland, that “the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the Constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained.” Madison himself believed not only that The Federalist Papers were not a direct expression of the ideas of the Founders, but that those ideas themselves, and the “debates and incidental decisions of the Convention,” should not be viewed as having any “authoritative character.” In short, “the legitimate meaning of the Instrument must be derived from the text itself.”

  68. NoWay:

    I’ll ignore the obvious because you find an author who tells me to do so and who supposedly quotes another Founder telling me to ignore the words of the Founders. After all, why should we accept the words of the author about the meaning of his work. Let’s take your word instead. Do you really have to leave your common sense at home to be a Republican stooge?

  69. @Mespo

    The quote I presented was from Max Farrand’s compliation. More precisely, the words are those of James Madison; taken from a letter to Thomas Ritchie dated Sept. 15, 1821.

    The legitimate meaning of any contract must come from the text itself. The meaning attributed to that text (in case of confusion) must come from the ordinary sense given to that text. When it comes to our Constitution, the records of the state conventions provide the best source for determination of the meaning of that text.

    The Federalist Papers, like their counterparts (the Anti-Federalist Papers) were the opinions of one person. They were not agreed upon by any body of men. In fact, those written by Hamilton came from a man who was not even present for most of the Convention. And those written by John Jay came from a man who was not even invited to the Convention. The Oath of Secrecy prevented Jay from knowing what took place at the Convention. (Do you have any reason to believe that the Oath was violated?)

    Why does Mark Esposito need to rely on insults? Is that the level of civility that Professor Turley expects from his guest bloggers?

  70. NoWay:

    “Why does Mark Esposito need to rely on insults? Is that the level of civility that Professor Turley expects from his guest bloggers?”

    *****************************

    I guess the reason is because I detest those who would intentionally mislead and obfuscate out of base political purpose. Madison didn’t want publication of his notes during his lifetme to avoid the sophistry folks like you constantly engage in when debating — taking quotes out of context and flat out falsehoods.

    Actually Madison knew his words would be used in the future and fully intended their publication. He said, “a publication after the death of all the Framers ‘may be most delicate and most useful also . . . As no personal or party views can then be imputed, they will be read with less of personal or party feelings, and consequently, with whatever profit, may be promised by them.'” (Farrand, IV, 475).

    “James Madison died on June 26, 1836. In his will leaving his papers to his widow, Madison wrote that “it was not an unreasonable inference that a report of the proceedings and discussions . . . [of the convention] will be particularly gratifying to the people of the United States, and to all who take an interest in the progress of political science and the course of true liberty.” [John Kaminski, a review of Madison’s Gift]

    As Prof John Kaminsky, Director of the Center for the Study of the American Constitution, notes “Given the importance of the Constitution in our lives today, Madison’s notes have become invaluable for an understanding of the original meaning of the Founders. It is remarkable to think that throughout the first fifty years of the republic under the Constitution, no one–not even Chief Justice John Marshall–had access to Madison’s notes.”

    Maybe that explains Marshall ‘s reticence to use Madison’s words — he didn’t have them.

    I’ve lost count of the Supreme Court opinions citing Madison and the Federalist Papers in support of their opinions. We do know that between 1955 and 1984 the Federalist Papers were cited by the Supreme Court in 34% of their opinions on Constituional law — more than twice any other source. (See, The Supreme Court and Opinion Content: The Federalist Papers, Pol. Research Qtrly, Corley, et als, Aug. 2005)

    Finally and just to upset you for your breathtaking breach of anonymity — a no-no on this blog and everywhere else by the way, I’ll quote Jefferson:

    “Ridicule is the only weapon which can be used against unintelligible propositions.”

    Spare me the hurt feelings routine and go back to your Beckian no-nothingness. I see no need to suffer fools gladly regardless of my position on this blog and will continue as I see fit unless restrained by minds and authorities greater than your own and whom I respect more that those of a gnat.

  71. @mespo

    Let’s get something straight, you whining little pissant; I didn’t breach you’re anonymity. If you’ve got a problem, take it up with Professor Turley.

    Introducing Our New Guest Bloggers

    “I have selected three of our best known and most respected regulars: David Drumm (aka Nal), Elaine Magliaro (aka Elaine M) and Mark Esposito (aka Mespo).”

    Of the three, you are the least deserving of any respect. You reap what you sow.

    Back to Madison and the Federalist Papers:

    Madison understood that his records of the Convention would be of interest for the purpose of how the convention proceeded, but he insisted that the sense of the text of the Constitution should come from the sense given to it in the state conventions.

    You want to quote Jefferson? Fine. Here’s Jefferson at his finest;

    “Can it be believed, that under the jealousies prevailing against the General Government, at the adoption of the constitution, the States meant to surrender the authority of preserving order, of enforcing moral duties and restraining vice, within their own territory? And this is the present case, that of Cohen being under the ancient and general law of gaming. Can any good be effected by taking from the States the moral rule of their citizens, and subordinating it to the general authority, or to one of their corporations, which may justify forcing the meaning of words, hunting after possible constructions, and hanging inference on inference, from heaven to earth, like Jacob’s ladder? Such an intention was impossible, and such a licentiousness of construction and inference, if exercised by both governments, as may be done with equal right, would equally authorize both to claim all power, general and particular, and break up the foundations of the Union. Laws are made for men of ordinary understanding, and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties, which may make anything mean everything or nothing, at pleasure. It should be left to the sophisms of advocates, whose trade it is, to prove that a defendant is a plaintiff, though dragged into court, torto collo, like Bonaparte’s volunteers, into the field in chains, or that a power has been given, because it ought to have been given, et alia talia. The States supposed that by their tenth amendment, they had secured themselves against constructive powers. They were not lessoned yet by Cohen’s case, nor aware of the slipperiness of the eels of the law. I ask for no straining of words against the General Government, nor yet against the States. l believe the States can best govern our home concerns, and the General Government our foreign ones. I wish, therefore, to see maintained that wholesome distribution of powers established by the constitution for the limitation of both; and never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly he bought and sold as at market.

    But the Chief Justice says, “there must be an ultimate arbiter somewhere.” True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.”

    You best pick and choose your quotes wisely, Mespo. The Framer’s intent is worthless if not understood in that sense by the States who ratified the Constitution. Jefferson knew of your ilk too well when he spoke of the slipperiness of the eels of the law.

  72. NoWay:

    “you whining little pissant;”

    *****************

    Your call for civility is about as sincere as your commentary. Took a little doing but bringing out the real you was well worth it. Here’s a well-chosen quote just for you: “Pot meet kettle.”

  73. Taken directly from the “Supreme Court Opinion and Content cited above by Mespo;

    “Obviously there are reasons the Federalist Papers should not be the sole primary source in interpreting the Constitution. The essays were written under the pen name of Publius, but actually were the work of three men-James Madison, Alexander Hamilton and John Jay-and were a practical, political writing, responding to criticisms of the proposed Constitution, and specifically meant to influence the ratification vote in New York State (Eskridge 1998; McGowan 2001). As important and influential as these men were, they by no means represented all or even a majority of the framers. They were meant to be commentary, which may not rise to the level of law. The Federalist Papers were “in fact, only one of several hundred salvos in the war of words that accompanied the struggle over ratification” (Rossiter 1964: 53). Madison himself in 1824 cautioned against their uncritical use by acknowledging that, “it is fair to keep in mind that the authors might be sometimes influenced by the zeal of advocates” (Madison cited in Lupu
    1998: 1327 n. 18).”

    Tell us Mespo; Which of the Federalist Papers were cited most? Of those, which were published after the Constitution had already been ratified?

  74. NoWay:

    “Tell us Mespo; Which of the Federalist Papers were cited most? Of those, which were published after the Constitution had already been ratified?

    When fired upon, I don’t have any problem with returning fire.”

    ********************

    You can read the article I cited as well as I can — or maybe not.

    As to your comical plea of self-defense, Indeed you can pop-off, but you should aim the barrel away from your foot there Hop-a-long.

    When you finish your responding rant on this thread turn the light off. It’s over.

  75. “Which of the Federalist Papers were cited most? Of those, which were published after the Constitution had already been ratified?” (no way)

    What??!! Is that a serious question?

    (The FPs were published to promote ratification which took place in June of 1788. The last FP was published in May of 1788 … source? … any eighth grade civics class.)

  76. @Blouise

    “What??!! Is that a serious question?”

    Judging by your answer, not only was it a serious question, it’s a question that you need to have answered.

    One, of the top three most cited Federalist Papers was published after the Constitution had been ratified. Federalist 81 (in two parts) was published on the 25th and 28th of June, 1788. Federalist 78, the second most cited of the Federalist papers, was published on June 14th 1788 (just one week before the Ninth State, New Hampshire’s State Convention adopted it).

    Why is this relevant? It’s relevant because the author if Federalist 78 & 81 did not attend most of the Convention. He left because the others did not concur with his ideas for the new government. He was not present when the role of the Judiciary was settled by the Convention. Hamilton returned to the Convention at the request of George Washington to sit on the Committee of Detail.

    The Federalist Papers were specifically meant to influence the ratification vote in New York. I have yet to see any demonstrated proof of their influence beyond that of New York.

    “(The FPs were published to promote ratification which took place in June of 1788. The last FP was published in May of 1788 … source? … any eighth grade civics class.)”
    :)

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