On Secession: An Analysis of Texas v. White

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Pat Young

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Mike Griffith apparently left the room right after he posted.

A few notes on the article linked to in the OP. It is not a scholarly article, nor is it in standard legal writing form. There are neither in-text citations, nor are their footnotes or endnotes.

There is a lot of discussion here about a foundationless article.
 
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Andersonh1

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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
Then how about the dissenting opinion?

https://www.law.cornell.edu/supremecourt/text/74/700

Texas did not, at the time of the trial, meet the definition of a state as laid out by Marshall in Hepburn & Dundass v. Ellxey
-- Texas had no representatives in Congress
-- "Has her voice been heard in the late election of President?"
--
Texas was then "held and governed as a conquered province by military force"
-- a legal Republican form of government, as guaranteed by the Constitution, was not in force in Texas
-- Congress had declared Texas a "rebel state"

Conclusion: Texas was not, at that time, politically, a state in the Union, because it did not meet the Constitutional definition of a state.

The next question was that if Texas was not a state, did it have the right to repudiate a contract?
- the United States are not a party to the case
- it is between Texas and her citizens

Now whether we assume the State of Texas to be judicially in the Union (though actually out of it) or not, it will not alter the case. The contest now is between the State of Texas and her own citizens. She seeks to annul a contract [p740] with the respondents, based on the allegation that there was no authority in Texas competent to enter into an agreement during the rebellion. Having relied upon one fiction, namely, that she is a State in the Union, she now relies upon a second one, which she wishes this court to adopt, that she was not a State at all during the five years that she was in rebellion. She now sets up the plea of insanity, and asks the court to treat all her acts made during the disease as void.

We have had some very astute logic to prove that judicially she was not a State at all, although governed by her own legislature and executive as "a distinct political body."

The ordinance of secession was adopted by the convention on the 18th of February, 1861, submitted to a vote of the people, and ratified by an overwhelming majority. I admit that this was a very ill-advised measure. Still, it was the sovereign act of a sovereign State, and the verdict on the trial of this question, "by battle," [n2] as to her right to secede, has been against her. But that verdict did not settle any question not involved in the case. It did not settle the question of her right to plead insanity and set aside all her contracts, made during the pending of the trial, with her own citizens, for food, clothing, or medicines. The same "organized political body," exercising the sovereign power of the State, which required the indorsement of these bonds by the governor also passed the laws authorizing the disposal of them without such indorsement. She cannot, like the chameleon, assume the color of the object to which she adheres, and ask this court to involve itself in the contradictory positions that she is a State in the Union and was never out of it, and yet not a State at all for four years, during which she acted and claims to be "an organized political body," exercising all the powers and functions of an independent sovereign State. Whether a State de facto or de jure, she is estopped from denying her identity in disputes with her own citizens. If they have not fulfilled their [p741] contract, she can have her legal remedy for the breach of it in her own courts.

Texas v. White is not primarily about secession at all, except when it comes to determining the legal status of a state government with regard to the validity of contracts with citizens of that state. Texas can't have it both ways. Regardless, in this dissent Justice Grier calls out Chase's tortured logic for just what it is: a legal fiction. And he relies on the Constitution, court precedent and history to make his case.
 

Andersonh1

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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).​
Nice article, Mike, with some good questions about Chase's reasoning in Texas v. White, for anyone who wants to think it through. Thanks to Cash for doing some analysis as well.
 

jgoodguy

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Then how about the dissenting opinion?

https://www.law.cornell.edu/supremecourt/text/74/700

Texas did not, at the time of the trial, meet the definition of a state as laid out by Marshall in Hepburn & Dundass v. Ellxey
-- Texas had no representatives in Congress
-- "Has her voice been heard in the late election of President?"
--
Texas was then "held and governed as a conquered province by military force"
-- a legal Republican form of government, as guaranteed by the Constitution, was not in force in Texas
-- Congress had declared Texas a "rebel state"

Conclusion: Texas was not, at that time, politically, a state in the Union, because it did not meet the Constitutional definition of a state.

The next question was that if Texas was not a state, did it have the right to repudiate a contract?
- the United States are not a party to the case
- it is between Texas and her citizens

Now whether we assume the State of Texas to be judicially in the Union (though actually out of it) or not, it will not alter the case. The contest now is between the State of Texas and her own citizens. She seeks to annul a contract [p740] with the respondents, based on the allegation that there was no authority in Texas competent to enter into an agreement during the rebellion. Having relied upon one fiction, namely, that she is a State in the Union, she now relies upon a second one, which she wishes this court to adopt, that she was not a State at all during the five years that she was in rebellion. She now sets up the plea of insanity, and asks the court to treat all her acts made during the disease as void.

We have had some very astute logic to prove that judicially she was not a State at all, although governed by her own legislature and executive as "a distinct political body."

The ordinance of secession was adopted by the convention on the 18th of February, 1861, submitted to a vote of the people, and ratified by an overwhelming majority. I admit that this was a very ill-advised measure. Still, it was the sovereign act of a sovereign State, and the verdict on the trial of this question, "by battle," [n2] as to her right to secede, has been against her. But that verdict did not settle any question not involved in the case. It did not settle the question of her right to plead insanity and set aside all her contracts, made during the pending of the trial, with her own citizens, for food, clothing, or medicines. The same "organized political body," exercising the sovereign power of the State, which required the indorsement of these bonds by the governor also passed the laws authorizing the disposal of them without such indorsement. She cannot, like the chameleon, assume the color of the object to which she adheres, and ask this court to involve itself in the contradictory positions that she is a State in the Union and was never out of it, and yet not a State at all for four years, during which she acted and claims to be "an organized political body," exercising all the powers and functions of an independent sovereign State. Whether a State de facto or de jure, she is estopped from denying her identity in disputes with her own citizens. If they have not fulfilled their [p741] contract, she can have her legal remedy for the breach of it in her own courts.

Texas v. White is not primarily about secession at all, except when it comes to determining the legal status of a state government with regard to the validity of contracts with citizens of that state. Texas can't have it both ways. Regardless, in this dissent Justice Grier calls out Chase's tortured logic for just what it is: a legal fiction. And he relies on the Constitution, court precedent and history to make his case.
What about it? That dissenting opinion was the loser and lost in the debris of history. Chase's logic has survived the test of time,
Kohlhaas v. State 2006 quoted Chase, not the dissenting opinions. They made their case and lost.
Kohlhaas v. State
Kohlhaas also suggests that Texas v. White should not be taken as black letter law since the decision is tainted by the "context, emotions, and political situation" immediately following the Civil War, and has not been cited except as dicta by modern cases. This argument not only trivializes the impact of the Civil War on the Nation but also ignores a plenitude of Supreme Court cases holding as completely null the purported acts of secession by other Confederate states.[25] Unsurprisingly, the Supreme Court has had little occasion since Reconstruction to address the legality of secession. In 2004 the Supreme Court observed that inclusion of the word "indivisible" in the Pledge of Allegiance was significant because "the question whether a State could secede from the Union had been intensely debated and was unresolved prior to the Civil War."[26]
Even though secession is not explicitly addressed in the United States or Alaska Constitutions, it is clearly unconstitutional since opinions of the Supreme Court interpreting the federal constitution — including Texas v. White — constitute controlling authority.[27] Kohlhaas's attempt to discount the force of Texas v. White is wholly misplaced. In 1960 Justice Frankfurter characterized that decision thus:

The readjustment of the relationship between the States that had remained in the Union and those that had seceded presented major issues not only for the political branches of the Government, the President and the Congress, but also for this Court. Insofar as the perplexing and recalcitrant problems of Reconstruction involved legal solutions, the evolution of constitutional doctrine was an indispensable element in the process of healing the wounds of the sanguinary conflict. It was in aid of that process that this Court formulated the doctrine expressed in the famous sentence in State of Texas v. White: "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."[28]
When the forty-nine-star flag was first raised at Juneau, we Alaskans committed ourselves to that indestructible Union, for good or ill, in perpetuity. To suggest otherwise would "disparage the republican character of the National Government."[29]
Kohlhaas maintains that Texas v. White contains "highly suspect" reasoning because it fails to discuss the Ninth and Tenth Amendments. He argues that because the Constitution is otherwise silent on secession, secession is one of the rights reserved by those amendments. The decision quotes the Tenth Amendment almost exactly and discusses at great length the rights of the states and the people within the Union:

Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. . . . [T]he people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence[;] . . . without the States in union, there could be no such political body as the United States. Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. 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.[22]
Furthermore, the Supreme Court has interpreted the Tenth Amendment in a manner contrary to the interpretation Kohlhaas urges. In considering whether states could impose term limits on their federal legislators, the Court held that the Amendment "could only `reserve' that which existed before."[23] Thus "`The states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government . . . . No state can say, that it has reserved, what it never possessed.'"[24] Like representation in Congress, secession from the Union springs from joinder to the Union. No state possessed a right to secede before admission, and so no state would retain such a right under the Tenth Amendment.
I might also add that the question of what a State is is a political question. If Congress says it is a State, then it is a State.
 
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Andersonh1

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What about it?
You didn't care for the opinion of an "average attorney", and you don't care for the opinion of a supreme court justice. Who would you listen to when it comes to contrary opinions of Texas v White? Is anyone qualified to dismantle the logic of the case, in your view? Leave the legal standing of the case aside, because no discussion of any sort is going to affect that.

No state can say, that it has reserved, what it never possessed. Like representation in Congress, secession from the Union springs from joinder to the Union. No state possessed a right to secede before admission, and so no state would retain such a right under the Tenth Amendment.
I have to question this. Can the assertion that states had no right to leave the Union under the AOC be supported by historical fact? If they could, that would seem to be a retained right under the 10th amendment. And this quote also places language and restrictions on the 10th amendment that the amendment itself does not contain, which I also have a problem with.


According to historian John Ferling, by 1786 the Union under the Articles was falling apart. James Madison of Virginia and Alexander Hamilton of New York—they who joined together to vigorously promote a new Constitution—urged that renewed stability of the Union government was critically needed to protect property and commerce. Both founders were strong advocates for a more powerful central government; they published The Federalist Papers to advocate their cause and became known as the federalists. (Because of his powerful advocacy Madison was later accorded the honorific "Father of the Constitution".)[c] Ferling wrote:

Rumors of likely secessionist movements were unleashed. There was buzz as well that some states planned to abandon the American Union and form a regional confederacy. America, it was said, would go the way of Europe, and ultimately three or four, or more confederacies would spring up. ... Not only would these confederations be capable of taking steps that were beyond the ability of Congress under the articles, but in private some portrayed such a step in a positive light, in as much as the regional union could adopt constitutions that secured property rights and maintained order.[d]

Other arguments that justified abandoning the Articles of Confederation pictured the Articles as an international compact between unconsolidated, sovereign states, any one of which was empowered to renounce the compact at will. (This as opposed to a consolidated union that "totally annihilated, without any power of revival" the sovereign states.)[19] The Articles required that all states were obliged to comply with all requirements of the agreement; thus, permanence was linked to compliance.

'Compliance' was typically perceived as a matter of interpretation by each individual state. Emerich de Vattel, a recognized authority on international law, wrote at the time that "Treaties contain promises that are perfect and reciprocal. If one of the allies fails in his engagements, the other may ... disengage himself in his promises, and ... break the treaty."[19] Thus, each state could unilaterally 'secede' from the Articles of Confederation at will; this argument for abandoning the Articles—for its weakness in the face of secession—was used by advocates for the new Constitution and was featured by James Madison in Federalist No. 43.[e]

What does Federalist #43 say?
http://supreme.findlaw.com/documents/federalist/federalist43.html

It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void.
 
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OpnCoronet

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I have to question this. Can the assertion that states had no right to leave the Union under the AOC be supported by historical fact? If they could, that would seem to be a retained right under the 10th amendment. And this quote also places language and restrictions on the 10th amendment that the amendment itself does not contain, which I also have a problem with.


Where in the AoC, is the right a state to secede from a Union that proclaimed its Permanence. When, exactly. in history, did individual states ever have full sovereignty, complete and perfect in every detail?
 
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jgoodguy

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You didn't care for the opinion of an "average attorney", and you don't care for the opinion of a supreme court justice. Who would you listen to when it comes to contrary opinions of Texas v White? Is anyone qualified to dismantle the logic of the case, in your view? Leave the legal standing of the case aside, because no discussion of any sort is going to affect that.



I have to question this. Can the assertion that states had no right to leave the Union under the AOC be supported by historical fact? If they could, that would seem to be a retained right under the 10th amendment. And this quote also places language and restrictions on the 10th amendment that the amendment itself does not contain, which I also have a problem with.
1. I also belong a number of law blogs were the foibles of "average attorney" make for good reading.
2, Grist was simply wrong in this case. That is what a dissenting opinion is. Might be worth something significant had TvW been overruled which it was not. Looking over the decision I found a critical error. I can understand his dissent, but in the end Congress determines what a State is and that is what Chase went with. see Luther v. Borden. Exactly how much analysis does a fundamental error really need.
3. Constitutional law experts, related resources I would listen to.
4. Same as above for dismantling the case.
5. The problem is the legal standing is the law. The case has stood the test of time, It becomes a what if wishful thinking where someone throws stuff at the wall, forcing folks like Cash and I to refute with work mere complaining which can be generated with no effort.
 
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jgoodguy

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I am left in a quandary when agitators pull these stunts: by responding, you play into their game of our provocation for their entertainment, however, all of the replies are educational to people like me.
For me, it generally means I do more reading, chase rabbits and learn something new.
 

jgoodguy

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I have to question this. Can the assertion that states had no right to leave the Union under the AOC be supported by historical fact? If they could, that would seem to be a retained right under the 10th amendment. And this quote also places language and restrictions on the 10th amendment that the amendment itself does not contain, which I also have a problem with.
The simplest answer is that the AOCwas a real muddle with States acting like unruly children in a unsupervised orphanage. However they claimed to be independent, there was no reason to leave nor any procedure for leaving.
 
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ickysdad

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I have been reading William W. Freehling's "Prelude To Civil War: The Nullification Controversy In South Carolina 1816-1836" and in it read about the Webster versus Hayne debate whereupon in answering the argument that states were states before forming the Union Webster declared that before they were states they were colonies who revolted against England in an united crusade rather then as separate states/colonies. Moreover, the people of the United States ,as one community , rather then as separate states ,in separate communities ,had ratified the Constitution.
 

unionblue

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As soon as I'm President and can appoint them, I will. :tongue:

But clarify something for me. Are you saying that opinions that run counter to a Supreme Court decision aren't worth considering?
I am saying I have no confidence whatsoever in the OP or the author of such.

Good luck with your election chances as I would seriously consider voting for you. :wink:
 
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Kenneth Almquist

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The dissent doesn't address the question of whether secession is legal or not. Instead, it asserts that the legality of secession is irrelevant to the case at hand. The relevant passage reads: “Politically, Texas is not a State in this Union. Whether rightfully out of it or not is a question not before the court.”
 
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