On Secession: An Analysis of Texas v. White

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jgoodguy

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Can we not hold SC decisions up to the level of Scripture? The court has been known to get it wrong, given that it has reversed itself on more than one occasion. One can look at a SCOTUS ruling critically while granting its standing as the current last (legal) word on the subject.
TvW is full of politics and presidential ambitions If researched, but just griping does not cut it.
 

ivanj05

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TvW is full of politics and presidential ambitions If researched, but just griping does not cut it.
How exactly does venturing a reasoned opinion based upon the dissent in a SCOTUS case simple griping?

If you want to talk about immutable historic fact, the fact is that plenty of SCOTUS judgement have been overturned by a change in the law, Constitutional amendment, or reversal by SCOTUS itself. A court judgement is a legal fact, not a scientific one. There are plentiful grounds to discuss, debate, and even disagree with SCOTUS rulings while admitting their standing in current law. A robust discussion of the subject of the legality of secession requires deeper discourse than merely sticking your fingers in your ears and repeating the words "Texas v. White" over and over again.
 
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jgoodguy

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How exactly does venturing a reasoned opinion based upon the dissent in a SCOTUS case simple griping?

If you want to talk about immutable historic fact, the fact is that plenty of SCOTUS judgement have been overturned by a change in the law, Constitutional amendment, or reversal by SCOTUS itself. A court judgement is a legal fact, not a scientific one. There are plentiful grounds to discuss, debate, and even disagree with SCOTUS rulings while admitting their standing in current law. A robust discussion of the subject of the legality of secession requires deeper discourse than merely sticking your fingers in your ears and repeating the words "Texas v. White" over and over again.
A reasoned opinion has some evidence to support it other than Chase got/could have/maybe got it wrong or it could be, maybe somehow be overturned in whole or be nullified by some law. Scientific facts are subject to change, update and so on for example Michelson–Morley experiment. The one and only question is anyone providing facts as to why Chase came to his conclusion and Grier came to his? What would have happened if Grier's opinion been the majority?

As to the reality of TvW, it was quoted in 2006 in a court decision related to secession in the Alaska Supreme Court in the case of Kohlhaas v. State.
 

ivanj05

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A reasoned opinion has some evidence to support it other than Chase got/could have/maybe got it wrong or it could be, maybe somehow be overturned in whole or be nullified by some law. Scientific facts are subject to change, update and so on for example Michelson–Morley experiment. The one and only question is anyone providing facts as to why Chase came to his conclusion and Grier came to his? What would have happened if Grier's opinion been the majority?

As to the reality of TvW, it was quoted in 2006 in a court decision related to secession in the Alaska Supreme Court in the case of Kohlhaas v. State.
As I have pointed out to you before, this is not a courtroom. And I haven't disputed the legitimacy of Texas v. White.
 
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jgoodguy

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Lets take a look into Chase's definition of a State.

First up is that no standard definition of a State existed.


Texas Versus White A Study In Legal History By William Whatley Pierson, Jr
Download
P41-42

The question of jurisdiction was not so easily decided. As has been suggested, the decision of this question involved the most complicated and important points of the case, and made it memorable in the history of American jurisprudence. In the early days of the Union, there was little or no attempt to define the nature or meaning of the term "state." What constituted a State in the American Union at the time of the adoption of the constitution was too well understood for the leaders and framers to trouble themselves with the evolution and formulation of a carefully and finely worded definition.One preliminary source of difficulty and doubt which had been encountered in the arguments of the case in connection with this point lay in this absence from the Constitution and public law of the country of a clear and comprehensive definition of the word "state"; and it was necessary that such a definition should be formulated before the court could decide the questions of legal status and jurisdiction.
This fault of omission the court therefore, proceeded to remedy. In previous cases, the description of the essential elements of the concept "state" related either to the purposes of its organization, the manner of its composition, and the enumeration of its functions, or to the powers and privileges of States. As tests to discover whether or not a particular political body was a State under the Constitution, they were not individually re- liable or adequate. There must, consequently, be a gener- alization from a synthetic consideration of the various uses made of the word in the Constitution. The word had not been assigned a specific meaning there or in the works of commentators on the Constitution and government. The Chief Justice was, therefore, correct when he remarked that "the poverty of language often compels the employment of terms in quite different significations ; and there is hardly any ex- ample more signal to be found than in the word we are now considering." 2
He then pointed out that, in the Constitution, "state" most frequently expresses the idea of territory, people, and government; but that, in some instances, it denotes only one of these elements or features. It is used in its territorial, geographic sense in the requirement that a representative in Congress shall be an inhabitant of the State in which he is elected. It is also used in that sense in the section which provides that trials for crimes shall be held in the State in which the crimes were committed. It is employed in the sense of a community of people in the clause which enjoins upon the United States the duty of protecting each State against invasion, and, again, in that which guarantees to each State a republican form of government. In the sense of government, as distinguished from territory or people, there are numerous and recurring references. Examples of this usage are to be found in the prohibitions of power to the States, such as those depriving them of the right to make treaties with foreign governments, of emitting bills of credit, or of laying tonnage duties. Each use of the term here mentioned has the sanction and approval of the Constitution, and any definition agreed upon by the court, if it be comprehensive, must embrace each sense.
Proceeding, therefore, from these particular usages, the Chief Justice announced the following definition :
A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.
 

jgoodguy

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Texas Versus White A Study In Legal History By William Whatley Pierson, Jr
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P42-43

Chase was not the first to grasp the various meanings given by the Constitution to the word "state." His statement is practically identical with that submitted, in 1800, by James Madison. At an early date, there was recognition of the fact that the Constitution employs the term in different senses. After acknowledging a lack of consistency in this usage, Madison said,
Thus it sometimes means the separate sections of territory occupied by the political societies within each ; sometimes the particular governments established by those societies ; some- times those societies as organized into particular governments : and, lastly, it means the people composing those political societies, in their highest sovereign capacity.3
Madison, as did Chase, noticed that the uses of the word were often conflicting and regretted that the language is not more rich in words to convey the shades of meaning desired in the treatment of scientific matters. "Although it might be wished," he said, "that the perfection of language admitted less diversity in the significations of the same words, yet little inconvenience is produced by it where the true sense can be collected with certainty in the different applications.
It is almost impossible to escape the conclusion that the Chief Justice, who was a profound student of Democratic legal and political literature, was conversant with the constitutional exegesis of Madison.
It appears that Chase chose wisely from several alternatives with backing from the writings of Madison.
 
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jgoodguy

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Chase was not alone. Chase follows the theory first propounded by Representative Samuel Shellabarger in 1866. It is also similar to President Johnson's theory. In both, Statehood was not changed by secession.

In short Chase was following what was being discussed in the other 2 branches of government.

The Lawfulness of the Reconstruction Amendments
Author(s): John Harrison
Source: The University of Chicago Law Review, Vol.
Published by: The University of Chicago Law Review
Stable URL: http://www.jstor.org/stable/1600377 P392-393

Much more popular among Republicans was the theory first propounded by Representative Samuel Shellabarger of Ohio in January 1866 and subsequently refined until it achieved the status of boiler- plate.86 According to Shellabarger, secession did not take the states of the Union; there was still a State of South Carolina with the same territory and largely the same population it had in October 1860. But something legally significant did happen when the people of the seceded states replaced their loyal governments with governments attached to the Confederacy: they destroyed their earlier governments, those that had maintained political relations with the other states and the national government.87 It was as if the people of South Carolina, assembled in convention, had abrogated all the laws that established and empowered the South Carolina government, and then gone home to think about what to do next.

Key Sentence "That is one reason to refer to Shellabarger's idea as the theory of destroyed governments; that reminds us that the reason the states no longer had their federal rights was not a crime but a political act of their people. " Secession was a political not a legal act". (or Secession is neither legal nor illegal)

This Dunning is no friend of the way reconstruction was handled.
88 Dunning seems to have had in mind Shellabarger's thesis when he referred to the theory that the southern states had forfeited their rights in the national government without eliminating themselves as states. Dunning, Essays on the Civil War at 109-11 (cited in note 82). Although that is not a bad way of putting the point, it can easily lead one to slip into the less plausible theory that the states as such had committed a crime and the forfeiture worked as a punishment. That is one reason to refer to Shellabarger's idea as the theory of destroyed governments; that reminds us that the reason the states no longer had their federal rights was not a crime but a political act of their people.
Here we have the second theory of reconstruction. The State Governments were not destroyed, just suspended.
War Democrats, typified by Andrew Johnson, seem generally to have believed that secession and the creation of Confederate state governments had suspended the operation of the states' political laws without abrogating them.89 Like the Republicans, Johnson was unwilling to accept the possibility that the organization headquartered in Columbia, South Carolina, during the war was the government of the State of South Carolina. By definition, they all agreed, the government of a state is one attached to the Union and the Constitution, so an organization that is not so attached is not the government of a state. One could tell a Confederate State from a United State by finding out which oath its officers are required to take.89' Hence there was no United State government of South Carolina during the war.89' It was as if all the state's officers had resigned or perished in a plague.
The whole reconstruction theory speech of Shellabarger
Essays on the civil war and reconstruction and related topics. by Dunning, William Archibald, 1857-1922. Published 1898.
 
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jgoodguy

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As Host.
Keep to discussing Texas v White.
If you want to discuss revolutionary theory, start a new thread.
 

BigTex

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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.
Signing on the dotted line under "Perpetual Union" was insufficient? but signing on the line of the Constitution under the words "more perfect" is. Hardly. They had to change who was instituting the "more perfect" , not the States but rather the "We the people of the United States" Who authorized this language asked Patrick Henry. No one knows. At the time of the convention no one was authorized such broad changes by any of the parties to the AOC.
 
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trice

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Texas Versus White A Study In Legal History By William Whatley Pierson, Jr
Download
P42-43




It appears that Chase chose wisely from several alternatives with backing from the writings of Madison.
Thanks for posting that reference. The exposition on the Question of Jurisdiction following from the pages you referenced is very interesting.
 

CW Buff

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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).​
That’s strange. Throughout his discussion about TX joining and leaving the Union, Mr. Genelin fails to consider something: the Union.

Not sure what’s so hard for him to grasp here. TX could only legally join the Union when TX and the Union decided so; and TX can only legally leave the Union when TX and the Union decide so.
 

OpnCoronet

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Signing on the dotted line under "Perpetual Union" was insufficient? but signing on the line of the Constitution under the words "more perfect" is. Hardly. They had to change who was instituting the "more perfect" , not the States but rather the "We the people of the United States" Who authorized this language asked Patrick Henry. No one knows. At the time of the convention no one was authorized such broad changes by any of the parties to the AOC.



Exactly right. The Union was made more secure under the Constitution because, it made Federal Law, that bound the Union together, enforceable.

The Framers of the Constitution had to change who was instituting 'the more perfect Union' precisely because those entrusted with the job of ensuring 'Perpetuity' of their Union, the states, under the AOC, failed in their responsibilities to do so.

All the changes authorized to the New Government under the Constitution, were first presented to the Peoples of all the States for their authorization by their approval of their new gov't under the Constitution.

The Constitution and its implications were fully debated, and many Anti-Federalists asked many hard question and some made bold predictions of the likely consequences to be expected from the consolidating tendencies, they believed they saw in it. But, in the end, for better or worse, the people, the ultimate source of all governing power, under the American theory of government, had spoken and none, can say no, except with a higher authority
 
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CW Buff

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Exactly right. The Union was made more secure under the Constitution because, it made Federal Law, that bound the Union together, enforceable.

The Framers of the Constitution had to change who was instituting 'the more perfect Union' precisely because those entrusted with the job of ensuring 'Perpetuity' of their Union, the states, under the AOC, failed in their responsibilities to do so.

All the changes authorized to the New Government under the Constitution, were first presented to the Peoples of all the States for their authorization by their approval of their new gov't under the Constitution.

The Constitution and its implications were fully debated, and many Anti-Federalists asked many hard question and some made bold predictions of the likely consequences to be expected from the consolidating tendencies, they believed they saw in it. But, in the end, for better or worse, the people, the ultimate source of all governing power, under the American theory of government, had spoken and none, can say no, except with a higher authority
You make it sound like a more perfect Union.

And that, of course, is exactly what made it more perfect: they skipped the middlemen (state governments) and went straight to "the ultimate source of all governing power." As a result, no one but the sovereign people of the US can alter or abolish their Union. If the people have not specifically delegated such a power to anyone else via the Constitution ("New States may be Admitted by the Congress into this Union;..."), they must be consulted directly on any such question (existing states leaving the Union).

There are several points on which unilateral secession fails. Sovereignty is one, and perpetual Union is another. I have my own problems with TX v. White. Chase chose a subject as good as any other: perpetual Union. He just failed to explain WHY perpetual was perfect to the Founders. The idea that perpetuity was necessary in 1777, and abandoned in 1787, without any discussion, without so much as a word on such a momentous change, is ludacris. However, we don't need to assume anything:

"In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence." -- Official Letter of the Constitutional Convention, September 17, 1787

What do secessionists presume? That a perpetual Union loses the aspect of perpetuity when it is consolidated? Besides the obvious fallacy of that notion (the whole reason for switching from the AOCs to the Constitution was because the former appeared to be on the verge of providing perpetuity), the Framers indicated that the Constitution was not just for the founding generation of Americans, but also for their "Posterity," which means "all future generations." They even stressed that particular word via capitalization.

"It is worthy of remark that not only the first, but every succeeding Congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of America depended on its Union. To preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union? Or why is it suggested that three or four confederacies would be better than one? I am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the Union rests on great and weighty reasons, which I shall endeavor to develop and explain in some ensuing papers. They who promote the idea of substituting a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the continuance of the Union in the utmost jeopardy. That certainly would be the case, and I sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the Union arrives, America will have reason to exclaim, in the words of the poet: 'FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS.' " -- John Jay, The Federalist No. 2
 

BigTex

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All the changes authorized to the New Government under the Constitution, were first presented to the Peoples of all the States for their authorization by their approval of their new gov't under the Constitution.
Still not an answer to Patrick Henry's question. You cannot say the people authorized a deviation from the specific instructions of the States Legislatures after the fact. In truth, this was a runaway convention of States that deprived its States of their Sovereignty and Confederation, replacing that Compact in their name, for a compact of consolidation in the name of the people of the United States. I'm suprised that these men who were guilty of hijacking the purpose of the Convention ( designing men behind curtains) were not arrested and brought up on charges. At least they didn't give us a Socialist government.
 
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