-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.
Nal,
So the constitution is a ‘perpetual union’ based on some transitive relation between Madison and Story?
Seriously?
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.
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.
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.
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.”
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.
Jim:
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.”
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.”
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With acknowledgment and kudos to my blog friend Buddha, I offer this retort:
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?”
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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.
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”.
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.
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?
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.
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?
Mike
http://en.wikipedia.org/wiki/The_Constitution_is_not_a_suicide_pact
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.
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.
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.
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.
Catullus:
Actually, it does. The phrase “to form a more perfect union” does exactly that, as pointed out by J. Chase.