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 “<i>Texas v. White</i>”

  1. @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.)”


  2. “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.)

  3. 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.

  4. 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?

  5. 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.”

  6. @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.

  7. 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.

  8. @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?

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