-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.
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?
“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.”
NoWay:
“James Madison would be the last person to want his personal beliefs on the Constitution to be held as foundation for interpretation.”
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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?
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.
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.”
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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.
Bob,
Sorry … Jim’s post was yesterday at 6:13pm not 6:30
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.
Besides as I said much earlier, I’m all for Texas seceding and taking some other States with it.
“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..
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.
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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
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.
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.
Bob, Esq.:
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.
“If that is the[y} can[,]”
Please excuse these and too manyother typos due to my lack of proof reading prior to submission.
“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.
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?
Nal: “My perpetuity concept?”
Yes; see above.
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.”
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.