-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.
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. 🙂
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….
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.
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.
Bob, Esq.:
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.
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.”
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
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?
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]
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.
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.
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.
Bob,Esq.,
I’m following this closely as I find Jim’s presentation persuasive.
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?
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.
Nal:
Well, we know one constitutional issue resolved by war — the existence of the Constitution itself.
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.
“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.
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.
Jim,
What point are you making with your chain of sovereign title search you provided above?