-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.
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?
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.
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?
From Abraham Lincoln Inaugural Address, 4 March 1861, Lincoln said:
I hold, that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual.
It is clear that Lincoln saw supporting the perpetuity of the Union was supporting the constitution.
“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?
“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.
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. . .
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)
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.
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…
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…
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?
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.
Catullus,
Think NAFTA….You are already subject to the Jurisdictional Authority of the US…..
Also,
Consider this…
The Amero….Some say not….Some say yes….but it is for you to decide if this is fact or fiction…
http://en.wikipedia.org/wiki/North_American_currency_union
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.
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….
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.
“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.
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.