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On Secession: An Analysis of Texas v. White
American Thinker ^ | 01/10/2013 | Cory Genelin

Posted on 01/10/2013 7:14:20 AM PST by SeekAndFind

I was recently hired to review the Supreme Court opinion in the case of Texas v. White, 74 U.S. 700 (1869).

The opinion in that matter was written by Chief Justice Salmon P. Chase, who had served in Lincoln's cabinet during the Civil War prior to his appointment as chief justice. In the recent talk of secession, this case is often thrown out as having settled the matter legally, just as the Civil War settled the matter militarily.

This memorandum of course does not address the wisdom of secession and does not advocate secession. It is devoted solely to analysis of whether Texas v. White is, as is suggested, binding precedent as to the future legality of a state attempting to secede.

1. Secession was not the ultimate issue in Texas v. White.

Texas v. White is often cited as a case which definitively and directly ruled on Texas' right to secede. That is not the case. Texas v. White was a case about government bonds. It's all a little boring but it's important to understand just how far removed the decision is from what it is often presented to be.

In 1851, the Federal Government issued bonds to the State of Texas as payment for the resolution of a boundary dispute. The bonds were payable to the State of Texas, or bearer, meaning that Texas could redeem them itself, or sell them on the secondary market. The Texas legislature then passed an act which indicated that the bonds could not be sold unless endorsed by the Governor of Texas.

Texas redeemed most of the bonds prior to the Civil War, but it still had a few left when the war broke out. These were not yet signed by the governor.

(Excerpt) Read more at americanthinker.com ...


TOPICS: Constitution/Conservatism; Culture/Society; News/Current Events; US: Texas
KEYWORDS: 10thamendment; kkk; klan; secession; statesrights; texas
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To: WhiskeyX

I see that you are from the if you can’t dazzle ‘em with brilliance, baffle them with BS school of thought. Where exactly are the requirements for secession listed in the Constitution?


21 posted on 01/10/2013 8:39:50 AM PST by jospehm20
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To: All

If Texas were to try a legal form of secession, the way to go about it would be to use the clause that allows them to split into five states and threaten to do this if they are not allowed to secede peacefully. Would Obama be willing to have eight more senators in the Senate appointed by a Republican governor to foul up his Senatorial fig leaf and prevent his nominations from passing? Hell, no. THAT’S how Texas can leverage their way into a peaceful secession if they were to choose to do it.


22 posted on 01/10/2013 8:42:27 AM PST by OrangeHoof (Our economy won't heal until one particular black man is unemployed.)
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To: WhiskeyX

“The South has contended only for the supremacy of the constitution, and the just administration of the laws made in pursuance to it.

“Virginia to the last made great efforts to save the union, and urged harmony and compromise.”

Robert E. Lee, Dec. 1866


23 posted on 01/10/2013 8:43:15 AM PST by PeaRidge
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To: OrangeHoof

Spot on OrangeHoof!

The days of the nationalists and “perpetual Unionists” are coming to the close. Their Constitutional “theories” are being laid bare for the ridicule they deserve.

They bathe themselves in legal theory while ignoring facts. Nationalists are NOT to be trusted. They undermine the very unalienable rights the Founders fought and died for. And in doing so, the MOCK their sacrifice.

The Founders, Framers nor Ratifiers did NOT create a “national” government...that is a fact. The federalists may have wanted one and crafted a way to get there. But the simple facts are, the Constitution would never have been ratified had the people of the States believed they were surrendering their sovereignty.

Fear the nationalists, even the ones calling themselves “Conservative!” They are seeking ways to usurp more of your unalienable rights.


24 posted on 01/10/2013 8:44:19 AM PST by mek1959
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To: Psalm 144
“UN troops” beget LOL!
Secondly, why would one think the US military would take the side of a tyrant who has shown them and America disdain? I don't think there would be many who would attack fellow patriots by some Presidential Order.

Wonder why this President has had so many Generals and Admirals resign? They are privy to better information than we, regarding illegal arab campaign money and stolen election. Instead of attacking fellow citizens, I would suspect a significant group of high ranking would “advise” nobama to seek safe asylum outside the USA.

25 posted on 01/10/2013 8:47:47 AM PST by X-spurt (Republic of Texas, Come and Take It!)
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To: jospehm20

Exactly Jospehm20. People who war against secession war against unalienable rights. A law cannot over rule an unalienable right. Unalienable rights can be delegated, but not surrendered. And as such, when delegated, the delegation can be rescinded. Secession rescinds a delegated power. That’s all it is...and no law created can nullify that.

Not even Texas v. White nor the make believe “perpetual Union” baloney made up out of whole cloth.


26 posted on 01/10/2013 8:50:29 AM PST by mek1959
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To: jospehm20

The requirements for seccession are easily found in the 10th Amendment. Powers not specifically granted to the federal government are left to the states, or to the people.

The Constitution is detailed in how a state can join the union, but makes no mention of how a state may leave. The fact that the Constitution does not discuss it, means it was a power deliberately left to the state. There is not the -slightest- indication that the founders meant the union to be a suicide pact, where one could enter and never leave.

The civil war only decided one thing. That is what happens when a populous industrial region fights a rural agricultual region.


27 posted on 01/10/2013 8:54:07 AM PST by DesertRhino (I was standing with a rifle, waiting for soviet paratroopers, but communists just ran for office.)
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To: OrangeHoof

If and when that time comes as forced by nobama there will be no asking for permission.

Just like in 1836, Texas will stand against the tyrant. Come and Take it, like Don’t Mess with Texas is an ingrained mindset, not just a slogan.


28 posted on 01/10/2013 8:57:14 AM PST by X-spurt (Republic of Texas, Come and Take It!)
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To: WhiskeyX
It became possible when the state goverment of Virginia engaged in treasonous insurrection and rebellion by withdrawing itslef by force of arms from the administration of the laws of the United States during the period of the rebellion.

The absence of one party to a legal requirement is not justification for that item being legally binding. For example, I cannot go to a bank and simply deem you to have cosigned the loan by virtue of your absence. ~ To assert that the assent of a State, even if it was in rebellion, is not really required when the Constitution explicitly demands it is to deny the Constitution's position of the highest law of the land.

To elaborate: Even if the Executive issued an Executive Order instructing the various Government Agencies to confiscate firearms, and the legislature were to pass [ordinary] legislation making all private firearm possession prohibited, and the Supreme Court were to declare these acts legitimate would not make them legitimate. Why?
Because the Second Amendment says "the right of the people to keep and bear arms shall not be infringed", and firearms are certainly arms, and such as above is certainly infringement.

The State of West Virginia was erected during a period of time in which there was no Virginia state goverment to assent or dissent the application of the loyal citizens of West Virginia for accession as a loyal state in the Union.

The absence of a State government to assent is precisely the point: a State government was required, by the Constitution, to assent... it did not. Therefore, for WV & VA to both be States, Secession must be valid: for either VA could not secede from the US and WV could not be a State, or VA could secede and WV could secede from that secession [and join/stay with the Union].

29 posted on 01/10/2013 9:01:33 AM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: DesertRhino

Here here again!

This is refreshing to see...people defending an unalienable right. The nationalists, even the conservative one’s, don’t know what to do with this type of reasoning. They love their little “nuances” or “penumbras” of legal theory. But as I mentioned about, secession is NOT a legal question anyway. It’s a political question.

Conservative nationalists bother me the most. First, because I used to be one until I got off the power politics bandwagon and actually learned history. Second, because the consequences of the “nationalism” they promote, just their kind of nationalism leads exactly to the oligarchy we have today. Either way, progressive or conservative nationalism leads to the same place...crushing unalienable rights.

Let me off the nationalist train please; I want nothing to do with it. It’s very ugly, dirty, backroom deal making and immoral. No thanks.

Though certainly not perfect, I’ll take my chances with a Union of sovereign States where diversity and liberty have a much better chance.


30 posted on 01/10/2013 9:06:29 AM PST by mek1959
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To: OrangeHoof
[T]oday’s Court has no desire to let the Constitution or precedent interfere with their desired outcome.

Needed to be said again.

31 posted on 01/10/2013 9:06:45 AM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: SeekAndFind

Grrreat post. Very interesting column as well as seriously informed posters reflected in their comments following.


32 posted on 01/10/2013 9:08:54 AM PST by RitaOK ( VIVA CHRISTO REY / Public education is the farm team for more Marxists coming.)
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To: OrangeHoof
If Texas were to try a legal form of secession, the way to go about it would be to use the clause that allows them to split into five states and threaten to do this if they are not allowed to secede peacefully.

I don't think that option is any longer valid. It was part of the articles of annexation, yes, when Texas first joined the union. But when Texas re-joined the union after the Civil War, I believe that option was made null and void.

Were it still in effect, though, six other states would be in for a rude surprise -- because the original dimensions of Texas would apply. Which means that

1. Oklahoma would lose its panhandle.
2. Kansas would lose all of West Kansas north of the panhandle.
3. Nebraska would lose everything south of the North Platte River and north of the panhandle (which would include the Nebraska panhandle).
4. Wyoming would lose everything south of the North Platte and north of the source of the Rio Grande.
5. Colorado would lose everything east of the source of the Rio Grande
6. New Mexico would lose everything east of the Rio Grande.

So, not only would the new, improved Texas gain ten Senators, but four Democrat Senators in Colorado and New Mexico would be displaced.

33 posted on 01/10/2013 9:08:54 AM PST by okie01 (The Mainstream Media: IGNORANCE ON PARADE)
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To: DesertRhino

That is what I was taught.


34 posted on 01/10/2013 9:12:04 AM PST by jospehm20
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To: RitaOK

Indeed RitaOK, this is the conversation of the early 21st century. But it will be a battle for sure. We’ve all been infected by a disease called nationalism and the antidote are history and facts.

It simply cannot be demonstrated that the signers of the ratification documents that “acceded” to the Constitution thought they were “surrendering” their sovereignty. Read the history of North Carolina’s ratification attempts. They failed until the Bill of Rights was passed believing it would ensure the newly created federal government wouldn’t trample on their State. Sadly, they were wrong. The other Wayward Sister, tiny Rhode Island waited almost two full years after NH ratified the Constitution to do so as well. Even then, they had to be kind of coerced into it by a very close 32-30 vote. Two votes. Is there any credibility to their desire not to be part of the new Union or where they just a bunch of redneck hayseeds like the nationalists make current day secession supporters out to be. Did you know that Rhode Island did not even send delegates to the Philadelphia Convention.

These and many other facts are the facts the nationalists do not want people to know. For when we do, we will bring down their little empire in Washington DC by breaking away from it.

Now, to be fair, I can’t blame all nationalists, just about everyone of us in this generation have been infected with this disease. But once we take the antidote (facts and history), we must fight to restore that which was usurped. The intentional nationalists (both progressive and conservative) are the real enemies of liberty. And they will be who we will do battle with always remembering though that our cause is just and right. There’s is about power and control over people.


35 posted on 01/10/2013 9:29:11 AM PST by mek1959
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To: X-spurt

“Secondly, why would one think the US military would take the side of a tyrant who has shown them and America disdain?”

Why do you think substantial numbers would mutiny?

“I don’t think there would be many who would attack fellow patriots by some Presidential Order.”

I think many would follow orders to ‘suppress insurrection’ with greater or lesser degrees of enthusiasm.

If we come to civil war the fractures will be as many and complex as those in the Spanish Civil War.


36 posted on 01/10/2013 9:34:16 AM PST by Psalm 144 (Sic semper tyrannis)
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To: Psalm 144

There need not be a shot fired. We had a peaceful secession already...in 1787. No one was shot, hung, or arrested back then.

If Obama is Jackson/Lincoln revisited, then we’ll see. But I’m not remotely convinced there would be shooting. Just saber rattling and very tense negotiations.


37 posted on 01/10/2013 9:39:47 AM PST by mek1959
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To: OneWingedShark

West Virginia came into being because the western counties setup a rump government headed up by Pierpont. The convention to setup the West Virginia government had persons representing counties that they did even live in. When the vote came on whether the specified counties were to secede from Virginia, the western counties were occupied by Union troops. The vote totals were substantially less the vote totals held 3 years previously when Virginia voted to secede. I believe in some counties, the vote totals were in the hundreds. Of the counties that presently make up the state of West Virginia, about half voted to secede when Virginia seceded.

Lee’s quote is quite accurate about Virginia trying to hold the Union together. During the secession convention, Virginia voted not to secede (I think the date was Apri 3, 1861) and sent a delegation to Washington. Lincoln refused to meet the delegation. After Lincoln called up troops to invade the South, Virginia refused to be a party to the invasion and seceded.


38 posted on 01/10/2013 9:54:22 AM PST by wfu_deacons
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To: mek1959

I understand that and I hope this would be the case. I look at the implosion of the Soviet Union as an example. Despite the fact that secession was an express right in the Soviet constitution, troops were sent in to occupy the Baltic states as soon as they threatened to exercise that right.

Only when the Soviets were too bankrupt to pay for the violent enforcement of compulsory union did the USSR come unraveled.

Meanwhile, we have the deliberate, made for TV examples of Ruby Ridge and Waco before us. There is a reason the federal government initiated these actions and saw to it that they were public spectacles. They were intentional demonstrations of power and ruthlessness.

There should be no doubt that the statists would resort to homicides - many and spectacular - to sustain the status quo. Intimidation, punishment and murder is at the heart of every dedicated statist, because without those there is no control over dissidents.

There need not be a shot fired, but at present there most certainly would be.


39 posted on 01/10/2013 10:07:20 AM PST by Psalm 144
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To: Psalm 144

“I think many would follow orders to ‘suppress insurrection’ with greater or lesser degrees of enthusiasm.”

I’ve seen no recent evidence that our soldiers and Marines are Nazis, gestapo and eizengruppen who would goosestep into their homes and kill their mothers and fathers in bed.

Perhaps you can point out recent training exercises where our troops were encouraged to murder US citizens by the thousands.


40 posted on 01/10/2013 10:08:08 AM PST by sergeantdave (The FBI has declared war on the Marine Corps)
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