On Secession: An Analysis of Texas v. White

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Mike Griffith

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Here is one link on the problems with Texas v. White:

"On Secession: An Analysis of Texas v. White," by Cory Genelin, in American Thinker, January 10, 2013
http://www.americanthinker.com/author/cory_genelin/
EXCERPT:

Strangely, after going to the trouble of laying out Texas' procedure for its attempt at secession, Chase, in his argument, practically ignores them. If, as is proffered, Texas v. White holds that no process could ever affect secession, then Chase's reasoning is more implicit than explicit. It is implied that the politicians representing Texas in 1845 were able to forever bind all Texans to the Union, yet the politicians representing Texas 16 years later had no power to unbind them. Did one of these governments have the consent of the governed and not the other? How is it possible for one generation of Texans to grant to their government the authority over every following generation until the end of time? If we assume that the holding in Texas v. White is absolute, and that Chase's criticisms went beyond procedural flaws, then these questions must be answered. There were certainly not answered by Chase.

Chase's argument is particularly troubling in light of his discussions regarding just what a state is. Essentially, Chase seems to say that the State, in the sense of the people, or the nation, lives on perpetually, while the State, in the sense of the government, can come and go. This certainly comports with history. However, as applied to the actual history of Texas, his logic would hold that the ephemeral state (government) can perpetually bind the eternal state (people).​
 

unionblue

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Here is one link on the problems with Texas v. White:

"On Secession: An Analysis of Texas v. White," by Cory Genelin, in American Thinker, January 10, 2013
http://www.americanthinker.com/author/cory_genelin/
EXCERPT:

Strangely, after going to the trouble of laying out Texas' procedure for its attempt at secession, Chase, in his argument, practically ignores them. If, as is proffered, Texas v. White holds that no process could ever affect secession, then Chase's reasoning is more implicit than explicit. It is implied that the politicians representing Texas in 1845 were able to forever bind all Texans to the Union, yet the politicians representing Texas 16 years later had no power to unbind them. Did one of these governments have the consent of the governed and not the other? How is it possible for one generation of Texans to grant to their government the authority over every following generation until the end of time? If we assume that the holding in Texas v. White is absolute, and that Chase's criticisms went beyond procedural flaws, then these questions must be answered. There were certainly not answered by Chase.

Chase's argument is particularly troubling in light of his discussions regarding just what a state is. Essentially, Chase seems to say that the State, in the sense of the people, or the nation, lives on perpetually, while the State, in the sense of the government, can come and go. This certainly comports with history. However, as applied to the actual history of Texas, his logic would hold that the ephemeral state (government) can perpetually bind the eternal state (people).​
Will this opinion of Cory Genelin's overturn Texas v. White?
 
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jgoodguy

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Here is one link on the problems with Texas v. White:

"On Secession: An Analysis of Texas v. White," by Cory Genelin, in American Thinker, January 10, 2013
http://www.americanthinker.com/author/cory_genelin/
EXCERPT:

Strangely, after going to the trouble of laying out Texas' procedure for its attempt at secession, Chase, in his argument, practically ignores them. If, as is proffered, Texas v. White holds that no process could ever affect secession, then Chase's reasoning is more implicit than explicit. It is implied that the politicians representing Texas in 1845 were able to forever bind all Texans to the Union, yet the politicians representing Texas 16 years later had no power to unbind them. Did one of these governments have the consent of the governed and not the other? How is it possible for one generation of Texans to grant to their government the authority over every following generation until the end of time? If we assume that the holding in Texas v. White is absolute, and that Chase's criticisms went beyond procedural flaws, then these questions must be answered. There were certainly not answered by Chase.

Chase's argument is particularly troubling in light of his discussions regarding just what a state is. Essentially, Chase seems to say that the State, in the sense of the people, or the nation, lives on perpetually, while the State, in the sense of the government, can come and go. This certainly comports with history. However, as applied to the actual history of Texas, his logic would hold that the ephemeral state (government) can perpetually bind the eternal state (people).​
Looks like a drive by posting.
 

jgoodguy

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http://www.americanthinker.com/author/cory_genelin/
In summary, Texas v. White, even if given the utmost respect, and considered binding precedent, does not stand for the proposition that no state may ever break its bonds with the Federal Government of the United States. At the same time, if it is considered the final word on the Federal Government's right to prohibit a state from seceding, then that right is far from established.
1. Texas v White describes secession as a political decision not a legal one.
2. A State may break it bonds with the Union by political means.
3. Texas v White is not the final word on secession, the States are. Not a State but all of them.

From Texas V White
6. When Texas became one of the United States, she entered into an indissoluble relation. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.
 
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cash

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From the article in the OP:

"Even if taken as binding precedent, Texas v. White stands only for the proposition that somewhere in the above described events, there was some procedural flaw making Texas' secession invalid. For instance, Chase could be read as saying that the process of secession taken by Texas failed because it was initiated by 'a convention, called without authority' and because it did not receive the ratification of the elected governor and secretary of state.

"Chase makes no statement as to the validity of secession undertaken by a majority vote of a state legislature and enacted by its executive."

This is completely wrong. "The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States." [74 US 700, 726]

Another quote from the article:

"Even within the narrow ground covered by the opinion, the opinion is not well supported."

This is also wrong. "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?" [74 US 700, 725]

"The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States." [Ibid.]

He supports the opinion with the US Constitution itself.

Also from the article: "Chase's historical arguments do a poor job of supporting his opinion."

Actually, it is the author whose history is poor. He ignores the fact that the United States achieved its independence through revolution, something which Chase presents as a viable, though extralegal, method of a state leaving the Union.

Again from the article: "Chase next places a clumsy weld between the old Articles of Confederation and the United State Constitution. He notes that the Union 'received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to 'be perpetual.' ' He then attempts to tie the Articles to the Constitution but in so doing contradicts himself: 'when these Articles were found to be inadequate . . . the Constitution was ordained 'to form a more perfect Union.' '

"Chase is implying that somehow a portion of the Articles survived the ratification of the Constitution. Yet this introduces another contradiction: If the Articles were 'perpetual' then how could they have been replaced by the Constitution? Are the Articles still in force? Are they in full force, or did only two words -- 'be perpetual' -- survive?"

Here the author is being disingenuous. It is not the Articles that were declared perpetual. It was the Union that was declared perpetual. Therefore, the Articles could be replaced at will with no effect on the perpetual union.

In summary, the article is a poor example of propaganda. It is poorly argued, poorly reasoned, and dishonestly put together.
 
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leftyhunter

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Here is one link on the problems with Texas v. White:

"On Secession: An Analysis of Texas v. White," by Cory Genelin, in American Thinker, January 10, 2013
http://www.americanthinker.com/author/cory_genelin/
EXCERPT:

Strangely, after going to the trouble of laying out Texas' procedure for its attempt at secession, Chase, in his argument, practically ignores them. If, as is proffered, Texas v. White holds that no process could ever affect secession, then Chase's reasoning is more implicit than explicit. It is implied that the politicians representing Texas in 1845 were able to forever bind all Texans to the Union, yet the politicians representing Texas 16 years later had no power to unbind them. Did one of these governments have the consent of the governed and not the other? How is it possible for one generation of Texans to grant to their government the authority over every following generation until the end of time? If we assume that the holding in Texas v. White is absolute, and that Chase's criticisms went beyond procedural flaws, then these questions must be answered. There were certainly not answered by Chase.

Chase's argument is particularly troubling in light of his discussions regarding just what a state is. Essentially, Chase seems to say that the State, in the sense of the people, or the nation, lives on perpetually, while the State, in the sense of the government, can come and go. This certainly comports with history. However, as applied to the actual history of Texas, his logic would hold that the ephemeral state (government) can perpetually bind the eternal state (people).​
Can't a state secede if a constitutional amendment is passed? Yes it takes a long time but it avoids bloodshed.
Leftyhunter
 

jgoodguy

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From the article in the OP:

"Even if taken as binding precedent, Texas v. White stands only for the proposition that somewhere in the above described events, there was some procedural flaw making Texas' secession invalid. For instance, Chase could be read as saying that the process of secession taken by Texas failed because it was initiated by 'a convention, called without authority' and because it did not receive the ratification of the elected governor and secretary of state.

"Chase makes no statement as to the validity of secession undertaken by a majority vote of a state legislature and enacted by its executive."

This is completely wrong. "The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States." [74 US 700, 726]

Another quote from the article:

"Even within the narrow ground covered by the opinion, the opinion is not well supported."

This is also wrong. "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?" [74 US 700, 725]

"The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States." [Ibid.]

He supports the opinion with the US Constitution itself.

Also from the article: "Chase's historical arguments do a poor job of supporting his opinion."

Actually, it is the author whose history is poor. He ignores the fact that the United States achieved its independence through revolution, something which Chase presents as a viable, though extralegal, method of a state leaving the Union.

Again from the article: "Chase next places a clumsy weld between the old Articles of Confederation and the United State Constitution. He notes that the Union 'received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to 'be perpetual.' ' He then attempts to tie the Articles to the Constitution but in so doing contradicts himself: 'when these Articles were found to be inadequate . . . the Constitution was ordained 'to form a more perfect Union.' '

"Chase is implying that somehow a portion of the Articles survived the ratification of the Constitution. Yet this introduces another contradiction: If the Articles were 'perpetual' then how could they have been replaced by the Constitution? Are the Articles still in force? Are they in full force, or did only two words -- 'be perpetual' -- survive?"

Here the author is being disingenuous. It is not the Articles that were declared perpetual. It was the Union that was declared perpetual. Therefore, the Articles could be replaced at will with no effect on the perpetual union.

In summary, the article is a poor example of propaganda. It is poorly argued, poorly reasoned, and dishonestly put together.
Good Analysis. Looks like the author is just a average attorney with no constitution law experience. Along with your analysis the article appears appears to be just an editorial/propaganda in a publication that advertises its mission as
 
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leftyhunter

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Here is one link on the problems with Texas v. White:

"On Secession: An Analysis of Texas v. White," by Cory Genelin, in American Thinker, January 10, 2013
http://www.americanthinker.com/author/cory_genelin/
EXCERPT:

Strangely, after going to the trouble of laying out Texas' procedure for its attempt at secession, Chase, in his argument, practically ignores them. If, as is proffered, Texas v. White holds that no process could ever affect secession, then Chase's reasoning is more implicit than explicit. It is implied that the politicians representing Texas in 1845 were able to forever bind all Texans to the Union, yet the politicians representing Texas 16 years later had no power to unbind them. Did one of these governments have the consent of the governed and not the other? How is it possible for one generation of Texans to grant to their government the authority over every following generation until the end of time? If we assume that the holding in Texas v. White is absolute, and that Chase's criticisms went beyond procedural flaws, then these questions must be answered. There were certainly not answered by Chase.

Chase's argument is particularly troubling in light of his discussions regarding just what a state is. Essentially, Chase seems to say that the State, in the sense of the people, or the nation, lives on perpetually, while the State, in the sense of the government, can come and go. This certainly comports with history. However, as applied to the actual history of Texas, his logic would hold that the ephemeral state (government) can perpetually bind the eternal state (people).​
If the congress pass's a law saying that a state may secede and the president signs it could the Supreme Court nullify that law if said law was challenged?
Could not a state de facto secede if the federal government just allows it?For example my state California openly violates several federal laws with so far no repercussions.
If millions of a states population decides to follow the example of post WW2 India and engage in massive non violent resistance realistically what could the federal government do? A court can make case law but it can't enforce it . Only the executive branch can and if it can't then case law is irrelevant.
Leftyhunter
 

jgoodguy

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Can't a state secede if a constitutional amendment is passed? Yes it takes a long time but it avoids bloodshed.
Leftyhunter
There are 2 other possible paths out of the union, peacefully. A statue or a convention of the States. All requite permission. As I keep saying nonconsensual secession is not protected.
 

leftyhunter

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There are 2 other possible paths out of the union, peacefully. A statue or a convention of the States. All requite permission. As I keep saying nonconsensual secession is not protected.
The third way is make some kind of financial deal and or a public relations campaign to convince other state voters that secession is just to cool for school.
Leftyhunter
 
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Andersonh1

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"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?" [74 US 700, 725]
This particular bit of reasoning by Chase is a stretch. "A more perfect Union" had to do with correcting the problems of the AOC, the problems of cooperation between states, debt, and a lack of power given to Congress, leading to international problems. I guess one could say that the Union under the AOC was in danger of breaking up due to the problems, but that was only a possibility as opposed to the actual problems that led to the creation of the Constitution.

And incidentally, how exactly can anything be made "more" perfect? By definition, perfection is completion. There is nothing more. The wording came from the Constitutional convention, I know, so that's not Chase's fault, but still... it's a poorly thought out choice of words.
 

cash

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This particular bit of reasoning by Chase is a stretch. "A more perfect Union" had to do with correcting the problems of the AOC, the problems of cooperation between states, debt, and a lack of power given to Congress, leading to international problems. I guess one could say that the Union under the AOC was in danger of breaking up due to the problems, but that was only a possibility as opposed to the actual problems that led to the creation of the Constitution.

And incidentally, how exactly can anything be made "more" perfect? By definition, perfection is completion. There is nothing more. The wording came from the Constitutional convention, I know, so that's not Chase's fault, but still... it's a poorly thought out choice of words.
If we look at the history of why the Constitution came about we can see Chase was right. I point interested posters to the first part of the Federalist Papers which detailed the insufficiency of the AoC to preserve the Union.

In making the Union more perfect they were making it a stronger union.
 
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jgoodguy

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This particular bit of reasoning by Chase is a stretch. "A more perfect Union" had to do with correcting the problems of the AOC, the problems of cooperation between states, debt, and a lack of power given to Congress, leading to international problems. I guess one could say that the Union under the AOC was in danger of breaking up due to the problems, but that was only a possibility as opposed to the actual problems that led to the creation of the Constitution.

And incidentally, how exactly can anything be made "more" perfect? By definition, perfection is completion. There is nothing more. The wording came from the Constitutional convention, I know, so that's not Chase's fault, but still... it's a poorly thought out choice of words.
Your post seems to be of the nature I don't understand therefore it must be flawed.
 

jgoodguy

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If we look at the history of why the Constitution came about we can see Chase was right. I point interested posters to the first part of the Federalist Papers which detailed the insufficiency of the AoC to preserve the Union.

In making the Union more perfect they were making it a stronger union.
I'd add a consolidated union not a compact. The more I read about the Constitutional Convention, the more I see consolidation rather than States Rights. Be nice for someone to start a thread on the topic of more perfect union.
 
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