On Secession: An Analysis of Texas v. White

[unionblue]

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.

You're surprised? Really?

Have you read just how lousy the shape of the country under the Articles of Confederation? 13 spoiled brats, bickering and squabbling, one vetoing the other on just about everything?

The men who gathered at this convention were desperate to save the country, to not lose what they had fought and bled for.

They saved the nation and were rightly held in high esteem for doing so.

 

[BigTex]

You're surprised? Really?

Have you read just how lousy the shape of the country under the Articles of Confederation? 13 spoiled brats, bickering and squabbling, one vetoing the other on just about everything?

The men who gathered at this convention were desperate to save the country, to not lose what they had fought and bled for.

They saved the nation and were rightly held in high esteem for doing so.

Actually I do as well. Having run across Mr.Henry's question, I've been seeking the answer. When held to the light it seems that some of those men took it upon themselves to subvert the AOC and their charge. Later thru the ratification process all was well for them. But strictly speaking, they were rebels.

 

[OpnCoronet]

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.

You confidencein your opinion, is, I suppose, commendable, but has no reference to the actual historical events.

In Fact, the Constitution was presented to Congress, with the suggestion that it be presented to the States for their approval. There was no secret conspiracy to decieve, it was all open and above board.

Madison pointed out that although states legislatures were competent to change the gove't in theory, but thayt he knew there were some state legislatures whose Constitutions denied the right to change their gov't. So as a matter of uniformity and better delineation of authority, it was deeemed better to present the constitution for decision to a convention of the Peoples of the states, in which excluded members of the State Legislatures, were to be specifically excluded from the conventions deliberations.

In case you do not know it, in the American theory of gov't, the People of all the states of all the Union are the ultimate Source of All Politiical power of their gov',. They can in fact, change the form of their gov't or do away with the Union if they so desire,

As noted by CW Buff, Congress merely bypassed the peoples representatives in their state legislatures and appealed directly to the people themselves. Unlike many on this board in general and on this thread in particular, many seemed confused as to where the power of states legistures to govern is drived.

 

[OpnCoronet]

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

As usual, the Founding Fathers, said it Best and more succinctly, than I can.

 

[Patrick Sulley]

Will this opinion of Cory Genelin's overturn Texas v. White?

no, but was Chase the right man to give an opinion considering his political leanings?

 

[WJC]

no, but was Chase the right man to give an opinion considering his political leanings?

Although we may question Chase's fitness to be a Justice, it changes nothing. He was a Justice and respected in his time.
Further, until recently, Federal judicial positions were filled by the President without opposition: they were considered solely the discretion of the Chief Executive.

 

[unionblue]

no, but was Chase the right man to give an opinion considering his political leanings?

Obviously, as his opinion in Texas v. White has yet to be overturned.

 

[Patrick Sulley]

Obviously, as his opinion in Texas v. White has yet to be overturned.

Well, no one has tried to secede since then...you have to have standing in a court in order to challenge a ruling. It will stand ad infinitum unless a state seceded and is sued or sue to be released...that it has not been overturned is irrelevant

 

[wausaubob]

The original 13 surrendered their right to independence knowingly. Virginia and New York were strong enough to consider going alone. Both had access to the western lands and both thought of becoming the seat of empire. The threat of a fractured structure was real and the smaller states were most vulnerable to British intrigue and corruption.

 

[Patrick Sulley]

The original 13 surrendered their right to independence knowingly. Virginia and New York were strong enough to consider going alone. Both had access to the western lands and both thought of becoming the seat of empire. The threat of a fractured structure was real and the smaller states were most vulnerable to British intrigue and corruption.

"Who, then, Mr. President, are the true friends of the Union? Those who would confine the federal government strictly within the limits prescribed by the constitution – who would preserve to the States and the people all powers not expressly delegated – who would make this a federal and not a national Union – and who, administering the government in a spirit of equal justice, would make it a blessing and not a curse. And who are its enemies? Those who are in favor of consolidation; who are constantly stealing power from the States and adding strength to the federal government; who, assuming an unwarrantable jurisdiction over the States and the people, undertake to regulate the whole industry and capital of the country."

Remarks in Congress on the "Tariff of Abominations" - Teaching American History

The Webster-Hayne Debate on the Nature of the Constitution: Selected Documents, ed. Herman Belz (Indianapolis: Liberty Fund, 2000). 3/26/2018. Available online at: https://goo.gl/7Pbesa. Robert Y. Hayne (1791–1839) was a U.S. senator from South Carolina. . . . [W]e ask nothing of our Northern...

teachingamericanhistory.org

 

[Patrick Sulley]

The original 13 surrendered their right to independence knowingly. Virginia and New York were strong enough to consider going alone. Both had access to the western lands and both thought of becoming the seat of empire. The threat of a fractured structure was real and the smaller states were most vulnerable to British intrigue and corruption.

"It makes but little difference, in my estimation, whether Congress or the Supreme Court, are invested with this power. If the Federal Government, in all or any of its departments, are to prescribe the limits of its own authority; and the States are bound to submit to the decision, and are not to be allowed to examine and decide for themselves, when the barriers of the Constitution shall be overleaped, this is practically “a Government without limitation of powers;” the States are at once reduced to mere petty corporations, and the people are entirely at your mercy. I have but one word more to add. In all the efforts that have been made by South Carolina to resist the unconstitutional laws which Congress has extended over them, she has kept steadily in view the preservation of the Union, by the only means by which she believes it can be long preserved – a firm, manly, and steady resistance against usurpation. The measures of the Federal Government have, it is true, prostrated her interests, and will soon involve the whole South in irretrievable ruin"

Remarks in Congress on the "Tariff of Abominations" - Teaching American History

The Webster-Hayne Debate on the Nature of the Constitution: Selected Documents, ed. Herman Belz (Indianapolis: Liberty Fund, 2000). 3/26/2018. Available online at: https://goo.gl/7Pbesa. Robert Y. Hayne (1791–1839) was a U.S. senator from South Carolina. . . . [W]e ask nothing of our Northern...

teachingamericanhistory.org

 

[GwilymT]

"It makes but little difference, in my estimation, whether Congress or the Supreme Court, are invested with this power. If the Federal Government, in all or any of its departments, are to prescribe the limits of its own authority; and the States are bound to submit to the decision, and are not to be allowed to examine and decide for themselves, when the barriers of the Constitution shall be overleaped, this is practically “a Government without limitation of powers;” the States are at once reduced to mere petty corporations, and the people are entirely at your mercy. I have but one word more to add. In all the efforts that have been made by South Carolina to resist the unconstitutional laws which Congress has extended over them, she has kept steadily in view the preservation of the Union, by the only means by which she believes it can be long preserved – a firm, manly, and steady resistance against usurpation. The measures of the Federal Government have, it is true, prostrated her interests, and will soon involve the whole South in irretrievable ruin"

Please source your quotes.

 

[Patrick Sulley]

Please source your quotes.

Remarks in Congress on the "Tariff of Abominations" - Teaching American History

The Webster-Hayne Debate on the Nature of the Constitution: Selected Documents, ed. Herman Belz (Indianapolis: Liberty Fund, 2000). 3/26/2018. Available online at: https://goo.gl/7Pbesa. Robert Y. Hayne (1791–1839) was a U.S. senator from South Carolina. . . . [W]e ask nothing of our Northern...

teachingamericanhistory.org

 

[unionblue]

Well, no one has tried to secede since then...you have to have standing in a court in order to challenge a ruling. It will stand ad infinitum unless a state seceded and is sued or sue to be released...that it has not been overturned is irrelevant

It's completely relevant as it has not been overturned, and, as you have mentioned, no state since it's ruling has ever attempted unilateral secession again.

 

[Patrick Sulley]

Will this opinion of Cory Genelin's overturn Texas v. White?

Well, a ruling will remain in perpetuity until or unless a challenge comes before another court. Since it is doubtful another state will attempt to secede and therefore never be brought in front of a court...the ruling...right or wrong...will stand forever.

 

[Mike Griffith]

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.

IOW, rather than deal with the facts and arguments in the article, you simply claim it is "not a scholarly article" and "foundationless." It is in fact a very scholarly article, and it's unfortunate that one can't get you folks to engage in substantive discussion. When you see evidence you can't explain, you dismiss to and appeal to the authority that your position is the majority among scholars and that therefore it must be right.

One of the core principles of the American Revolution, if not the core principle, was that the colonies had a natural right to peacefully separate from England and that England's attempt to force the colonies to remain British was immoral and unnatural.

If the founders had intended to prohibit secession, they surely would have placed at least one express statement to this effect in the Constitution. Not only does the Constitution say nothing about secession, but it also says nothing about ratification being irrevocable or about the Union being permanent.

 

[unionblue]

IOW, rather than deal with the facts and arguments in the article, you simply claim it is "not a scholarly article" and "foundationless." It is in fact a very scholarly article, and it's unfortunate that one can't get you folks to engage in substantive discussion. When you see evidence you can't explain, you dismiss to and appeal to the authority that your position is the majority among scholars and that therefore it must be right.

One of the core principles of the American Revolution, if not the core principle, was that the colonies had a natural right to peacefully separate from England and that England's attempt to force the colonies to remain British was immoral and unnatural.

If the founders had intended to prohibit secession, they surely would have placed at least one express statement to this effect in the Constitution. Not only does the Constitution say nothing about secession, but it also says nothing about ratification being irrevocable or about the Union being permanent.

Texas v. White still hasn't been overturned, has it?

 

[CW Buff]

If the founders had intended to prohibit secession, they surely would have placed at least one express statement to this effect in the Constitution. Not only does the Constitution say nothing about secession, but it also says nothing about ratification being irrevocable or about the Union being permanent.

You've got it backwards. The Constitution is a fundamental law established by the sovereign people of the United States, just like the state constitutions are fundamental laws established by the sovereign people of the states (except, of course, the Constitution is superior to the state constitutions). The Constitution, the Union, and the federal government therefore belong to the people of the US. A state can no more unilaterally secede from the Union than a city, town, or county can unilaterally secede from a state.

it also says nothing about ratification being irrevocable or about the Union being permanent.

You're conflating ratification and enactment. Ratification is merely consent. If you consent to a legal agreement, you cannot unilaterally withdraw from that agreement (revoke consent) unless the agreement specifically allows that. The states ratified the Constitution, but only the people of all of the states so ratifying could, collectively, establish the Constitution. Once the Constitution is enacted, it's too late to revoke consent. It's establishment is what they consented to. The law has been established, and can only be altered or repealed by the sovereign people of the US. Likewise, the more perfect Union and the Fed are in turn established by the Constitution, and likewise belong to the sovereign people, and likewise can only be altered or abolished by them. Unless they specifically authorize someone else to do so, via their fundamental law. So, for everyone other than the sovereign people of the US, if it alters the Union, and it ain't in the Constitution, it ain't constitutional. Not the other way around.

If the founders had intended to prohibit secession, they surely would have placed at least one express statement to this effect in the Constitution.

Let's let one of them speak on the matter:

"I partake of the wonder that the men you name should view secession in the light mentioned. The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater fight to break off from the bargain, than the other or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of –98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a single party, with the parties to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created. In the Virginia Resolutions and Report the plural number, States, is in every instance used where reference is made to the authority which presided over the Government. As I am now known to have drawn those documents, I may say as I do with a distinct recollection, that the distinction was intentional."

 

[wausaubob]

If the founders wanted the US to be like a trust, they would have put a limit of years in the founding document. If they wanted to allow a body of men to withdraw their state from the US, they would have put a mechanism for doing so in the Constitution.
The Constitution creates a corporate body, which goes on forever, and is owned by the people. Just as the people could abandon the Confederation and supplant it with the Constitution, the whole people could create a new Constitution, and 3/4ths of the states could assent and there would be a new corporation.
What would happen to the 1/4 non consenting states is not specified, but I suppose they can continue with their own country.

 

[Belfoured]

IOW, rather than deal with the facts and arguments in the article, you simply claim it is "not a scholarly article" and "foundationless." It is in fact a very scholarly article, and it's unfortunate that one can't get you folks to engage in substantive discussion. When you see evidence you can't explain, you dismiss to and appeal to the authority that your position is the majority among scholars and that therefore it must be right.

One of the core principles of the American Revolution, if not the core principle, was that the colonies had a natural right to peacefully separate from England and that England's attempt to force the colonies to remain British was immoral and unnatural.

If the founders had intended to prohibit secession, they surely would have placed at least one express statement to this effect in the Constitution. Not only does the Constitution say nothing about secession, but it also says nothing about ratification being irrevocable or about the Union being permanent.

This is the author's current bio from his firm's website:

"Cory has litigated cases on contracts, land use, corporate shareholder actions, creditor’s rights, car accidents, will contests, trust disputes, permitting, sexual harassment, employment discrimination, and more."

Nothing stated about a background in constitutional law/litigation, and the areas he does list would only rarely brush up against it - maybe in the area of due process or zoning/takings, for example. Maybe. Those are areas that do not qualify somebody to issue an authoritative legal analysis of this issue - as opposed to a political opinion. If you're going to bestow the label "scholarly" on analysis of this type of Supreme Court jurisprudence and refer to the author as a "scholar" in the area, let's at least address the author's credentials to write about the subject. Getting a j.d. and passing the bar somewhere falls a few thousand miles short.