The Meaning of the Preamble to the Constitution

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trice

Lt. Colonel
Joined
May 2, 2006
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. "

This is the Preamble to the Constitution of the United States. In discussions here, this Preamble is often cited and often declared to have no part in the law of the United States. That declaration is not correct -- every word of the Constitution is part of the law of the United States. However, the Preamble neither conveys nor denies any particular power, right or privilege to any person or government. So what does the Preamble actually mean?

The answer to that is simple in concept, but apparently difficult to explain and for people to grasp. The Preamble is the guide to everything that follows.

As such, it answers three distinct questions. These answers are used by the Court to illuminate the intent of the Founders in all the Articles that follow, and in the Amendments that would later be ratified in accord with the Constitution. Those questions are:
  • Who is doing this?
    • "We the People of the United States" are doing it.
  • What are they doing?
    • the People of the United States "do ordain and establish this Constitution for the United States of America"
  • Why are they doing it?
    • to "form a more perfect Union"
    • to "establish Justice"
    • to "insure domestic Tranquility"
    • to "provide for the common defence"
    • to "promote the general Welfare"
    • to "secure the Blessings of Liberty to ourselves and our Posterity"
The Courts of the United States, starting with the Supreme Court and down through all courts that are subordinate to it and the laws of the United States, use the Preamble to understand the intent of the Constitution and the application of it to all United States law.

Perhaps the most important expression of this principle is found in the 1803 landmark case Marbury v. Madison, where Chief Justice John Marshall extended the principle of Judicial Review that had arisen in North Carolina to United States law: “A Law repugnant to the Constitution is void.

Another way to look at that 1803 decision is the opinion of Madison, Hamilton and Jay in The Federalist Papers: "You must first enable government to control the governed; and in the next place oblige it to control itself."
 

trice

Lt. Colonel
Joined
May 2, 2006
The preamble is a mission statement. It is not the law. It basically says "here is our goal and intent", and then the Articles are the actual law/mechanism for making those intentions a reality.
That is not exactly correct. Every word in the Constitution is part of the law of the United States of America. Within that qualifier, I agree that the Preamble is designed to inform those who read and interpret the law as to the who, what and why of everything that follows it.
 
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trice

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Another way to put it, from the Legal Information Institute at Cornell University's School of Law:

PURPOSE AND EFFECT OF THE PREAMBLE
Although the preamble is not a source of power for any department of the Federal Government,1 the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution.2 “Its true office,” wrote Joseph Story in his Commentaries, “is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, ‘provide for the common defense.’ No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?”3

See https://www.law.cornell.edu/constitution-conan/preamble

Added Later: Those links to the footnotes above don't seem to work correctly after I copied them, so here is the Footnote section:
Footnotes
1 Jacobson v. Massachusetts, 197 U.S. 11 (1905).
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2 E.g., the Court has read the preamble as bearing witness to the fact that the Constitution emanated from the people and was not the act of sovereign and independent States. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), and that it was made for, and is binding only in, the United States of America. Downes v. Bidwell, 182 U.S. 244 (1901); In re Ross, 140 U.S. 453, 464 (1891).
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3 1 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (Boston: 1833), 462. For a lengthy exegesis of the preamble phrase by phrase, see M. ADLER & W. GORMAN, THE AMERICAN TESTAMENT (New York: 1975), 63–118.
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Andersonh1

Major
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Location
South Carolina
Another way to put it, from the Legal Information Institute at Cornell University's School of Law:

PURPOSE AND EFFECT OF THE PREAMBLE
Although the preamble is not a source of power for any department of the Federal Government,1 the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution.2 “Its true office,” wrote Joseph Story in his Commentaries, “is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, ‘provide for the common defense.’ No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?”
I think this and what I said are not that far apart. The preamble has a purpose, well explained here, but perhaps "not a source of power" is a better explanation than "not a law". Thanks for this link, it's helpful and definitely informative.
 

trice

Lt. Colonel
Joined
May 2, 2006
For anyone interested, here is the first paragraph of an article at The National Constitution Center on the meaning of the preamble in the Constitution:

The Preamble By
Erwin Chemerinsky
Dean of Berkeley Law School; Jesse H. Choper Distinguished Professor of Law at the University of California - Berkley Law School​
and
Michael Stokes Paulsen
Distinguished University Chair and Professor at University of St. Thomas School of Law​

"The Preamble of the U.S. Constitution—the document’s famous first fifty-two words— introduces everything that is to follow in the Constitution’s seven articles and twenty-seven amendments. It proclaims who is adopting this Constitution: “We the People of the United States.” It describes why it is being adopted—the purposes behind the enactment of America’s charter of government. And it describes what is being adopted: “this Constitution”—a single authoritative written text to serve as fundamental law of the land. Written constitutionalism was a distinctively American innovation, and one that the framing generation considered the new nation’s greatest contribution to the science of government."​

Click this link to see the rest of the article on line

The National Constitution Society website is set up as an interactive constitution and was created by the American Constitution Society and The Federalist Society. It is supported by a wide-ranging group of political interests from the left to the right (such as The Bezos Family Foundation and the Charles Koch Foundation)
 
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BuckeyeWarrior

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Location
Ohio
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. "

This is the Preamble to the Constitution of the United States. In discussions here, this Preamble is often cited and often declared to have no part in the law of the United States. That declaration is not correct -- every word of the Constitution is part of the law of the United States. However, the Preamble neither conveys nor denies any particular power, right or privilege to any person or government. So what does the Preamble actually mean?

The answer to that is simple in concept, but apparently difficult to explain and for people to grasp. The Preamble is the guide to everything that follows.

As such, it answers three distinct questions. These answers are used by the Court to illuminate the intent of the Founders in all the Articles that follow, and in the Amendments that would later be ratified in accord with the Constitution. Those questions are:
  • Who is doing this?
    • "We the People of the United States" are doing it.
  • What are they doing?
    • the People of the United States "do ordain and establish this Constitution for the United States of America"
  • Why are they doing it?
    • to "form a more perfect Union"
    • to "establish Justice"
    • to "insure domestic Tranquility"
    • to "provide for the common defence"
    • to "promote the general Welfare"
    • to "secure the Blessings of Liberty to ourselves and our Posterity"
The Courts of the United States, starting with the Supreme Court and down through all courts that are subordinate to it and the laws of the United States, use the Preamble to understand the intent of the Constitution and the application of it to all United States law.

Perhaps the most important expression of this principle is found in the 1803 landmark case Marbury v. Madison, where Chief Justice John Marshall extended the principle of Judicial Review that had arisen in North Carolina to United States law: “A Law repugnant to the Constitution is void.

Another way to look at that 1803 decision is the opinion of Madison, Hamilton and Jay in The Federalist Papers: "You must first enable government to control the governed; and in the next place oblige it to control itself."
I think Patrick Henry, when he was speaking against adoption of the constitution, explained it best. It created a system of government that was "the supreme law of the land". No longer would states be able to ignore laws or directions from the central government. This change came about because the states were not a party to the establishment of the federal government, the people were.

I rose yesterday to ask a question which arose in my own mind. When I asked that question, I thought the meaning of my interrogation was obvious. The fate of this question and of America may depend on this. Have they said, We, the states? Have they made a proposal of a compact between states? If they had, this would be a confederation. It is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing — the expression, We, the people, instead of the states, of America. I need not take much pains to show that the principles of this system are extremely pernicious, impolitic, and dangerous. Is this a monarchy, like England — a compact between prince and people, with checks on the former to secure the liberty of the latter? Is this a confederacy, like Holland — an association of a number of independent states, each of which retains its individual sovereignty? It is not a democracy, wherein the people retain all their rights securely. Had these principles been adhered to, we should not have been brought to this alarming transition, from a confederacy to a consolidated government.

Patrick Henry to the Virginia Constitutional ratification convention June, 5 1788
 

Joshism

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to "establish Justice"
So prior to the Constitution justice had not been established?

Is this a confederacy, like Holland — an association of a number of independent states, each of which retains its individual sovereignty?
I'm not familiar with Dutch history. Could someone more familiar please compare and contrast Holland in the 1780s with the USA under the Articles of Confederation?
 
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Joshism

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a compact between prince and people, with checks on the former to secure the liberty of the latter?
One could ask the same question in relate to a state government and the people of that state. What protected the people of Virginia, as I don't think the state constitution of Virginia was a compact between the counties?
 

BuckeyeWarrior

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One could ask the same question in relate to a state government and the people of that state. What protected the people of Virginia, as I don't think the state constitution of Virginia was a compact between the counties?
From what I have read of the constitutional convention and other sources is that the people give the state their power. And only people can take their power from a state, not a county, township or city because they didn’t create the stare.

That is why the framers of the constitution wanted the people, through their representatives at state ratifying Conventions, to ratify the constitution, instead of the states. In this view the people created the states and the federal government and only the people can undue both.
 
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BuckeyeWarrior

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The people created the state governments through their representatives. Therefore, a county, city, or township cannot overrule a state government or simply say they are now independent from that government.

Under the AoC the states were a party to its creation so they felt they had the right to ignore the continental congress and did. Thats one of the reasons it was replaced.

The framers of the constitution wanted the people, through their representatives at state ratifying Conventions, to ratify the constitution, instead of the states. This is what makes the constitution the supreme law of the land and makes both nullification and secession illegal.

Patrick Henry clearly saw this and warned against it. Though in later years he came to support the constitution.
 
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Duncan

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Despite the fact that the Preamble is a simple statement of intent and can never be the source of any legitimate constitutional power, it does have one especially striking feature. The Preamble, particularly considered in the context of Article VII, makes it clear that the Union under the AOC is as dead as Julius Caesar, and a brand new, original, Union is to be created by the Constitution. Notice the language of the Preamble when describing the creation of the Union; it is "ordain and establish", not "continue and perpetuate". It is not possible to "ordain and establish" a Union which already exists, because that Union has, quite obviously, already been established. No sir, this is an energetic, new, original, Union, not the stale continuation of a dysfunctional "league of friendship" as the old, dead, and expired Union was definitively described under the Aoc.

Notice also the language of Article VII, which explicitly provides for the "establishment" of an original Union, and not the "continuation" of an enervated and drained Union. And in promulgating this fact, it repeats and clarifies the idea expressed and language used in the Preamble. The Preamble may be weak and powerless in many, perhaps even most most respects, but it communicates the idea of a new and original Union clearly and emphatically.
 
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BuckeyeWarrior

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Ohio
Despite the fact that the Preamble is a simple statement of intent and can never be the source of any legitimate constitutional power, it does have one especially striking feature. The Preamble, particularly considered in the context of Article VII, makes it clear that the Union under the AOC is as dead as Julius Caesar, and a brand new, original, Union is to be created by the Constitution. Notice the language of the Preamble when describing the creation of the Union; it is "ordain and establish", not "continue and perpetuate". It is not possible to "ordain and establish" a Union which already exists, because that Union has, quite obviously, already been established. No sir, this is an energetic, new, original, Union, not the stale continuation of a dysfunctional "league of friendship" as the old, dead, and expired Union was definitively described under the Aoc.

Notice also the language of Article VII, which explicitly provides for the "establishment" of an original Union, and not the "continuation" of an enervated and drained Union. And in promulgating this fact, it repeats and clarifies the idea expressed and language used in the Preamble. The Preamble may be weak and powerless in many, perhaps even most most respects, but it communicates the idea of a new and original Union clearly and emphatically.
The preamble, by itself, shows that the union(i.e. the nation America) continued, all that was being done was the style of government was being changed.

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
The United States of America(the union) began on July 4th, 1776 and has continued through to the present.

Article VII does not change this in any form.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

All this says is that the constitution would be established upon the people of nine ratification conventions so ratifying. States that had not ratified it would be outside the constitution, but not outside the Union. They are still a part of America.

The supreme court has also ruled on this.
"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."
Texas vs White 1869.
 

Duncan

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The preamble, by itself, shows that the union(i.e. the nation America) continued, all that was being done was the style of government was being changed.

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
The United States of America(the union) began on July 4th, 1776 and has continued through to the present.

Article VII does not change this in any form.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

All this says is that the constitution would be established upon the people of nine ratification conventions so ratifying. States that had not ratified it would be outside the constitution, but not outside the Union. They are still a part of America.

The supreme court has also ruled on this.
"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."
Texas vs White 1869.
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" All this says is that the constitution would be established upon the people of nine ratification conventions so ratifying."

Tell me, why did you deliberately falsify the language of Article VII in your definition? It doesn't say "the people of nine ratification conventions"? So it looks like I'll have to provide the correct language:

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same."

Did you purposefully falsify the language because you were hoping to avoid the phrases "nine States" and, "between the States so ratifying the same" from staring you in the face and annihilating your argument? Sorry, it can't be done. There those words are, and there they'll stay.

"
States that had not ratified it would be outside the constitution, but not outside the Union. They are still a part of America."

Mr. IREDELL continued: If we do not adopt, we are no longer in the Union

You mean James Iredell and the delegates at North Carolina Ratifying Convention were worried for nothing. Who knew? And I don't see that in the constitution anywhere. Can you show it to me. Thanks.

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

Worthless propaganda from a dishonest and corrupt Judge. And Texas v White did not adjudicate the constitutionality of secession. No Supreme Court case ever has.
 
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BuckeyeWarrior

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" All this says is that the constitution would be established upon the people of nine ratification conventions so ratifying."

Tell me, why did you deliberately falsify the language of Article VII in your definition? It doesn't say "the people of nine ratification conventions"? So it looks like I'll have to provide the correct language:

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same."

Did you purposefully falsify the language because you were hoping to avoid the phrases "nine States" and, "between the States so ratifying the same" from staring you in the face and annihilating your argument? Sorry, it can be done. There those words are, and there they'll stay.

"
States that had not ratified it would be outside the constitution, but not outside the Union. They are still a part of America."

Mr. IREDELL continued: If we do not adopt, we are no longer in the Union

You mean James Iredell and the delegates at North Carolina Ratifying Convention were worried for nothing. Who knew? And I don't see that in the constitution anywhere. Can you show it to me. Thanks.

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

Worthless propaganda from a dishonest and corrupt Judge. And Texas v White did not adjudicate the constitutionality of secession. No Supreme Court case ever has.
I made up nothing, I explained. The conventions were conventions of representatives of The People that are referred to in the preamble of the constitution. The states did not ratify the constitution, the people did thorough the state ratifying conventions. As I’ve already proven through the notes in the constitutional convention the framers of the constitution did not want the state’s being a party to the ratification of the constitution.

Texas vs White did most certainly rule on secession because it had to determine what the status of Texas was so the Supreme Court could determine if it had jurisdiction. That is currently the law of the land, don’t like it get another case to the Supreme Court and hope they reverse the decision, or get a constitutional amendment passed allowing secession.
 

trice

Lt. Colonel
Joined
May 2, 2006
So prior to the Constitution justice had not been established?
Apparently the men at the Philadelphia Convention writing the Constitution did not think so. Perhaps they thought much more needed to be done.

The truth is that the United States under the Articles of Confederation and Perpetual Union did not have a separate judicial system. Any case brought through the government went through the Congress. The procedure for that is arcane beyond belief and seems unlikely to work to anyone's satisfaction. The new Constitution makes a big change by establishing an independent Supreme Court -- which certainly looks like that is what the Preamble is referring to when it says "establish justice".

I'm not familiar with Dutch history. Could someone more familiar please compare and contrast Holland in the 1780s with the USA under the Articles of Confederation?
They were at war with Britain 1780-84 after about a century of being allies against the French and Spanish. It was a bad period for the Dutch: their economy wasn't growing and they seem to have been way behind on fishing fleet issues. Not too long after this they were involved in the French Revolutionary wars. I think that probably exhaust my knowledge on the subject. :smile:
 

Duncan

Sergeant
Joined
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I made up nothing, I explained. The conventions were conventions of representatives of The People that are referred to in the preamble of the constitution. The states did not ratify the constitution, the people did thorough the state ratifying conventions. As I’ve already proven through the notes in the constitutional convention the framers of the constitution did not want the state’s being a party to the ratification of the constitution.

The states did not ratify the constitution,That is currently the law of the land, don’t like it get another case to the Supreme Court and hope they reverse the decision, or get a constitutional amendment passed allowing secession.
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"I made up nothing, I explained." You explained nothing. The conventions represented the individual states; 13 conventions, 13 States, 13 ratifications.

"The states did not ratify the constitution"- hmmm, I wonder what this means: "between the States so ratifying"

" Texas vs White did most certainly rule on secession "

Better go re-read Texas. Both Chase and Grier explicitly stated that they did not rule on the constitutionality of secession. Once again, there has never been a case before the SC on the constitutionality of secession. If you don't like that irrefutable fact, go file a case.
 
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BuckeyeWarrior

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"I made up nothing, I explained." You explained nothing. The conventions represented the individual states; 13 conventions, 13 States, 13 ratifications.

"The states did not ratify the constitution"- hmmm, I wonder what this means: "between the States so ratifying"

" Texas vs White did most certainly rule on secession "

Better go re-read Texas. Both Chase and Grier explicitly stated that they did not rule on the constitutionality of secession. Once again, there has never been a case before the SC on the constitutionality of secession. If you don't like that irrefutable fact, go file a case.
Here is the section from the decision that addresses secession;


It is needless to discuss, at length, the question whether the right of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States.

The Union of the States never was a purely artificial and [74 U.S. 700, 725] arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to 'be perpetual.' 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?

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law."

Here he says that the Union is perpetual and the actions by the rebels, ordinance of secession and it's ratification, were absolutely null. I don't know if you were looking for a sentence that explicitly said "secession is not allowed under the constitution" but any plain reading of this case shows the court ruled that uni-lateral secession as done by the rebels in 1860-61 is unconstitutional.
 

Duncan

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Joined
Feb 17, 2020
Here is the section from the decision that addresses secession;


It is needless to discuss, at length, the question whether the right of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States.

The Union of the States never was a purely artificial and [74 U.S. 700, 725] arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to 'be perpetual.' 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?

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law."

Here he says that the Union is perpetual and the actions by the rebels, ordinance of secession and it's ratification, were absolutely null. I don't know if you were looking for a sentence that explicitly said "secession is not allowed under the constitution" but any plain reading of this case shows the court ruled that uni-lateral secession as done by the rebels in 1860-61 is unconstitutional.
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Let me remind you that Texas V. White did not adjudicate the constitutionality of secession, and Chase's worthless propaganda is nothing more than the foolish and dishonest utterances of a thoroughly corrupt hack. To be clear, no attorney at any time filed briefs, questioned or examined witnesses, presented evidence, or gave oral arguments advocating the right and constitutionality of secession. Quite the opposite. As for Justice Chase, he openly declared that the constitutionality of secession was not under consideration:

"It is needless to discuss at length the question whether the right of a State to withdraw from the Union for any cause regarded by herself as sufficient is consistent with the Constitution of the United States."

Guess what? If you are deciding a momentous constitutional question that has torn the country apart for four years, taken the lives of 650,000 Americans, caused untold suffering and untold millions in property destruction, yeah, ya pretty much have to discuss it "at length". Ya know, like briefs, evidence, witnesses, and arguments, that kind of thing. Ya know, actually adjudicate the question with a full and fair trial. Not some off the cuff worthless propaganda. So no, it has never been adjudicated. Not in Texas, not ever.

And Justice Grier, in his minority opinion, said much the same thing by the way, only more emphatically;

"Politically, Texas is not a State in this Union. Whether rightfully out of it or not is a question not before the court."

So, again, the question of the constitutionality of secession was not adjudicated in Texas. And, in fact, it has never been adjudicated by the Court. A few years earlier, with the arrest of Jefferson Davis, the Court had the chance to do precisely that. But in that case, Chase hid from the issue, and Davis was released, having never been tried, much less convicted.
 
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