Texas vs White , a double edged sword

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Rob9641

Captain
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Maryland
I find it amazing that people still talk of the court as if it really looks at the written US Constitution and rules on it based on what it says. Justice Breyer is on record as wanting to rule without respect to language, history, precedent, culture--you name it.

I would like to see the US Constitution amended as follows. I'm not a lawyer, so the language may be imprecise, but here goes;

No federal judge or panel of judges below the US Supreme Court may strike down a law as being unconstitutional. Only the US Supreme Court may declare a law unconstitutional and only then by a majority of at least 6-3. 5-4 decisions are binding only on the litigants, are not the law of the land, and the US president is under no constitutional obligation to enforce them. And last but not least, the US Constitution may only be amended by the means specified in the text. Supreme Court decisions, even 6-3 or better, shall not be deemed to be amendments to the Constitution.
Constitutional law is complicated and decisions are hardly ever, if ever, based on just what the language of the Constitution says. Justice Breyer notwithstanding, precedent is important, and history and culture have had a lot to do with SCt. decisions in the past. I'm sure you're not holding your breath waiting for your Constitutional Amendment to be taken up or even proposed - there are plenty of people in the other two branches who would deny the Supreme Court has the last word on "unconstitutional" now - they're not about to say so in writing in the Constitution.
 

Freddy

2nd Lieutenant
Joined
Dec 19, 2006
Location
Worcester, MA
Two cents on the blockade/closing.

My understanding is that Lincoln ordered a blockade, and that Seward had to urge him to rename it a port-closing. As Rob noted, international and maritime laws are curious critters. Apparently, calling it a blockade somehow elevated the rebs into a beligerent status which, again apparently, makes it easier for other nations to actively support them without actually taking their side.

One thing that I don't remember seeing (re re-admission of representatives) involves the Constitution and a clause that requires the Government to make sure that the people of each state got a representative government. (This particular ploy was, I think, used when West Virginia bugged out.) And then there was still that troublesome detail that if either house doesn't like you, they don't have to seat you; hence all that back and forth foo-foo about who gets seated and who doesn't.
I believe you are referring to this part of the Constitution.

"Article 4:Section 4, Republican government

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

Legislation and the Constitution allowed the state's representatives to be seated in Congress. However, the states themselves were still in the Union but without representation in Congress. Congress refused to seat some state's representatives. In 1867 under the First Reconstruction Act Congress dissolved the newly elected Southern state governments as the Constitution allows. Congress required new state constitutions and ratification of the 14th Amendment before it would recognize six state governments and allow representatives to be seated in Congress. Georgia, Mississippi, Texas, and Virginia, had to ratify the Fifteenth Amendment before Congress recognized their state governments and seated their representatives in Congress.

 

Freddy

2nd Lieutenant
Joined
Dec 19, 2006
Location
Worcester, MA
It was "dicta" from none other than "secession university". It was not dicta as SCOTUS had to settle the question of jurisdiction in the case. If Texas was not a state in the Union at the time of the bond sale then Texas had no claim to sue White. SCOTUS ruled Texas was a state at that time and could sue White because state secession is unconstitutional. It was not a "good read" but a waste of time. Can you find a SCOTUS decision overturning Texas V. White on its state secession ruling? Can you find a constitutional scholar who agrees with Secession U on the dicta claim?
 
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wilber6150

Brev. Brig. Gen'l
Retired Moderator
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deep in the Mohawk Valley of Central New York
Here is a good read concerning Texas v White.

http://secessionuniversity.com/texas-v-white/
Yet it was never overturned.. Hmmmmmm

But, speculation aside, it does appear that so soon after the Civil War there was desperation by those involved in the horrific and unconstitutional actions of the Lincoln administration, including Chief Justice Chase, to look for any opportunity that might justify their misdeeds
And a very impartial look at history...
 

K Hale

Colonel
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Texas
That's a pretty specious use of the phrase "speculation aside," given what follows.
 
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swampfox

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South Carolina
It's a funny catch 22, secession that is. If states leave the Union and are no longer part of the United States (like it or not they were unhappy US citizens who became citizens of another country, constitutional or not), technically the US Constitution is made void because the people of the state had to ratify it in the first place. Therefore if they by majority don't like it later, does it apply to them? I don't know
 

K Hale

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Location
Texas
It's a funny catch 22, secession that is. If states leave the Union and are no longer part of the United States (like it or not they were unhappy US citizens who became citizens of another country, constitutional or not), technically the US Constitution is made void because the people of the state had to ratify it in the first place. Therefore if they by majority don't like it later, does it apply to them? I don't know
Yes. See: Texas v. White, 1869.
 
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TerryB

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Constitutional law is complicated and decisions are hardly ever, if ever, based on just what the language of the Constitution says. Justice Breyer notwithstanding, precedent is important, and history and culture have had a lot to do with SCt. decisions in the past. I'm sure you're not holding your breath waiting for your Constitutional Amendment to be taken up or even proposed - there are plenty of people in the other two branches who would deny the Supreme Court has the last word on "unconstitutional" now - they're not about to say so in writing in the Constitution.
Nope, not holdin' my breath. I did propose in an online article a few years back in a Libertarian journal that the PODUS could simply say "A 5-4 decision is not a mandate, and therefore this administration will not enforce it." Not holdin' my breath on that one either. I quoted Andrew Jackson on some cases involving Indian claims vs the states, but also went on to say that the hypothetical PODUS would need an abundance of testicular equipment to provoke such a "constitutional crisis."
 

ole

Brev. Brig. Gen'l
Retired Moderator
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Location
Near Kankakee
Can't very well have rule of law if the majority agree with it one year and not the next.
 

seboyle

First Sergeant
Joined
Feb 11, 2010
Location
Squamish, B.C.
I find it amazing that people still talk of the court as if it really looks at the written US Constitution and rules on it based on what it says. Justice Breyer is on record as wanting to rule without respect to language, history, precedent, culture--you name it.

I would like to see the US Constitution amended as follows. I'm not a lawyer, so the language may be imprecise, but here goes;

No federal judge or panel of judges below the US Supreme Court may strike down a law as being unconstitutional. Only the US Supreme Court may declare a law unconstitutional and only then by a majority of at least 6-3. 5-4 decisions are binding only on the litigants, are not the law of the land, and the US president is under no constitutional obligation to enforce them. And last but not least, the US Constitution may only be amended by the means specified in the text. Supreme Court decisions, even 6-3 or better, shall not be deemed to be amendments to the Constitution.
Interesting idea Terry but could you flesh it out a bit?

For instance, Supreme Court decisions are not usually described as 'amendments' to the Constitution but interpretations of what the Constitution means. They fill in the grey areas such as are separate but equal facilities for blacks and whites constitutional? If there were disagreement under your system, say between state and federal government or between two states, how would this be resolved?
 
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unionblue

Brev. Brig. Gen'l
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Location
Ocala, FL (as of December, 2015).
If Texas vs White is to be taken seriously,as of April 12,1869,should the whole idea of reconstruction been outlawed by the supreme court?

Any recent changes to Texas v. White? Has the Supreme Court reversed itself on that ruling? Any other rulings overturn it as of late?

If according to T. vs W. States are States period,and had always been States, should not have elections with full voting rights been held?

If one participates in a violent crime, like robbery or murder, should I be expected to have no jail time if convicted? Do we restrict the land, the actual soil a criminal stands on when a crime is committed by him? The States that attempted secession from the Union were always recognized as part of that Union, an indestructable part, as ruled by Texas v. White. As for the voting of people who assisted in a rebellion against the United States, you seem utterly surprised that there are consequences in losing such a rebellion. And one should remember that it was the US Congress, under it own rules, who decides who can be seated as representatives there.

Does the 14th amendment disqualification clause fall to the T v W judgement.

Perhaps the same as a drowning man clutching at individual whisps of straws to stay afloat.

It appears the the federal government was trying to have it both ways,stating in T v W that the States were always States and had never left the union and were indistructable,but the on the other hand rejecting the elected congressmen from certain States and declaring that certain States are military districts subject to control of congress.
Again, you seem surprised when after being defeated on the battlefield in an attempt to destroy the Union of States, that the U.S. Congress, which has it own rules at seating members, would be a tad miffed at the idea of ex-confederates being returned to that chamber with no consequences. It's a shame those members had a memory of the past four years and the need to remind others of what consequences could mean for one's actions.

Unionblue
 

Rob9641

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Nope, not holdin' my breath. I did propose in an online article a few years back in a Libertarian journal that the PODUS could simply say "A 5-4 decision is not a mandate, and therefore this administration will not enforce it." Not holdin' my breath on that one either. I quoted Andrew Jackson on some cases involving Indian claims vs the states, but also went on to say that the hypothetical PODUS would need an abundance of testicular equipment to provoke such a "constitutional crisis."
Actually, when votes are close now, it signals to the legal community that you can get ready to fight the fight again, because justices come and go, and the Learned Hand school of judicial wisdom is long gone. Justices are chosen for their political leanings, and in close calls one change in the Court can change everything. Sometimes justices even get convinced they were wrong and are willing to signal they WANT to hear another case so they can change the ruling. A 5-4 decision doesn't carry the practical weight an 8-1 decision carries.
 

whitworth

2nd Lieutenant
Joined
Jun 18, 2005
I find. . .

anyone attempting to win one for the Confederacy, 150 years after the fact, is usually a poor and untrained lawyer, grasping at straws.
Even R.E. Lee, their best general, stopped grasping at straws in 1865. But one never knows the brilliance and education of 21st century confederate supporters.
 
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OpnCoronet

Lt. Colonel
Joined
Feb 23, 2010
The Supreme Court decision was about the Constitutional status of statehood in relation to the Union. The q
 

OpnCoronet

Lt. Colonel
Joined
Feb 23, 2010
OOPS! wrong button.(continue post #56)) The question of qualifications for membership in Congress is the sole perogative of Congress, as prescribed by the Constitution.
 

TerryB

Major
Joined
Dec 7, 2008
Location
Nashville TN
Interesting idea Terry but could you flesh it out a bit?

For instance, Supreme Court decisions are not usually described as 'amendments' to the Constitution but interpretations of what the Constitution means. They fill in the grey areas such as are separate but equal facilities for blacks and whites constitutional? If there were disagreement under your system, say between state and federal government or between two states, how would this be resolved?
Unfortunately, students in HS and college are now taught that there are two ways to amend the Constitution, the second one being by Supreme Court decision [under the specious doctrine of evolving standards]. Justice Breyer admits that our process of judicial review is nothing but a tradition, but he also takes issue with Andrew Jackson's apocryphal statement "Chief Justice Marshall has made his decision, now let him enforce it." While Jackson was not on the side of the angels in his animus against Indians, he was asserting a principle of constitutional interpretation that we moderns have forgotten, namely that the US Constitution is not the private game preserve of the courts. We owe the modern conception to Earl Warren, may he not rest in peace. When the Marbury v Madison decision asserted that the Supreme Court only interprets the Constitution, Thomas Jefferson went ballistic, rightly saying that it would lead to judicial tyranny. Unfortunately, Jefferson had his hands full with too many other issues to be able to put Marshall in his place.
 
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TerryB

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Nashville TN
Actually, when votes are close now, it signals to the legal community that you can get ready to fight the fight again, because justices come and go, and the Learned Hand school of judicial wisdom is long gone. Justices are chosen for their political leanings, and in close calls one change in the Court can change everything. Sometimes justices even get convinced they were wrong and are willing to signal they WANT to hear another case so they can change the ruling. A 5-4 decision doesn't carry the practical weight an 8-1 decision carries.
I hope you are shining the light at the end of the tunnel here, but my real beef is the way the courts usurped the powers they currently have. Breyer admits that this is due to nothing other than tradition, not actual wording in the text of the Constitution. My tack is just that in order to restore balance, the other branches of government need to get more involved and send the signal to the courts that they do not hold the trump cards in this game, neither do they get to make up the rules as we go along. I want to be able to take a copy of the Constitution out of my back pocket and explain it to a 12 year-old student without having to resort to rocket science and brain surgery. It ought to mean what it says. The people (not the states) have a right to keep and bear arms. The framers knew the difference between people and states and that ought to settle the issue. And as to the establishment clause, the framers did not intend the word Congress to mean all organs of the government, all the way down to my local school board. The states were free to establish a state favored church and most of them did. You have to go back to Woodrew Wilson and the Progressives to see how we got into our current situation with the courts holding all the trump cards and making up the rules as the game "progresses."
 

OpnCoronet

Lt. Colonel
Joined
Feb 23, 2010
As noted above, through the centuries, the powers of the Constitution has evolved, as they have for the Congress and judiciary. it is notable that this evolution was well established long before before the CW. Even before Andy Jackson, Jefferson was stretching his Constitutional powers.
 
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