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 ...
It isn't for the want of blood from creep like you, if you were alive you would have probably pulled the lever on ole Gen Lee yourself.
bump
Fixed.
First of all, even if you believe that citizens of Confederate states could not legally commit "treason" against the United States -- since they were then part of a "different country" -- citizens of Union states who gave "aid and comfort" to the Confederacy did meet the Constitution's clear and simple definition of "treason".
And yet, during the entire Civil War period, only three incidents resulted in convictions for treason, and all seven people hanged were civilians:
After the war, a number of Confederate leaders were indicted for treason -- including Jefferson Davis and Robert E. Lee -- but all received blanket amnesty from President Johnson (Democrat from Tennessee) on his leaving office in 1869.
"President Andrew Johnson, in a proclamation dated December 25, 1868 (15 Stat. 711), gave an unconditional pardon to those who "directly or indirectly" rebelled against the United States.
Bottom line -- President Lincoln's peace offer to the Confederacy amounted to: Unconditional Surrender in exchange for no treason trials.
And? Do you mean to say that any collective effort towards a goal binds the participants forever?
If you and I decided that we wanted to start up a mostly-for-fun wood-carving business, partially to gain a little skill and partially to clear out some trees on your property -- would that be binding even after those trees were gone? Could you keep purchasing wood, compelling me by our agreement, into what would then be involuntary servitude?
Virginia was never an independent state outside the Union. It was a state as part of the Union.
No; it was a colony which won its independence, and the independence of others, then joined into union with the others via the Articles of Confederation.
If the state went into insurrection, it remained part of the Union, but the state government is no longer an instrument of the sovereignty of the people of the United States, and is thus invalid, but the land area remains part of the US.
Utterly preposterous. Why?
Because the state could be acting in full accord with the will of its people -- they may be tired of being oppressed and taken advantage of by their federal overlords; as the Deceleration of Independence says: whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Accordingly, it remains a US territory without a legitimate state government.
No, if the Deceleration is the basis of the Union -- being the first by which the State joined with the others (the Articles of Confederation and Constitution then being design documents to the Deceleration's work-order) -- then should that union (the federal government in our case) become destructive of the rights of "life, liberty, and[/or] the pursuit of happiness" then it is the duty of the people, and the States, to cease from that union.
Yet I've heard repeatedly of long periods during which the franchise and other civil rights were denied to leading Confederates in the reconstructed South.
Do you know which story is correct?
The Articles of Confederation, later superceded by the United States Constitution, is the "basis" of our republic. The Declaration of Independence was our "kiss off" to the Brits announcing our rebellion against their control.
...being the first by which the State joined with the others (the Articles of Confederation and Constitution then being design documents to the Deceleration's work-order) -- then should that union (the federal government in our case) become destructive of the rights of "life, liberty, and[/or] the pursuit of happiness" then it is the duty of the people, and the States, to cease from that union.
No case ever existed of any condition "destructive of the rights of "life, liberty, and[/or] the pursuit of happiness" - unless your threshold is so low that any irritation represents some sort of cockeyed justification.
The south's rebellion was a temper tantrum that turned out badly for them and should be a lesson for us all.
You didn’t think too hard on that particular post, did you?
In fact, the legal and recognized state government did consent to the creation of West Virginia. Read about The Restored Government of Virginia. It was all done according to the Constitution.
I can't cite many specific examples, but possibly we're talking about Federal law on treason, versus reconstruction era state and local ordinances.
Confederate officials pardoned for treason might still face laws which prevented them from holding offices in the post-war government.
However, one example which does come to mind is Lee's Lieutenant, James Longstreet, who settled in New Orleans after the war, and was appointed to various government positions, including adjutant general of the state militia and by 1872 a major general in command of all militia and state police forces within New Orleans.
All this for a man of whom President Johnson said,
But, Regardless of President Johnson's opposition, the United States Congress restored Longstreet's rights of citizenship in June 1868.
And I'm certain a little research could dig up a list of Confederate generals & others who returned to Congress, became their states' governors, etc.
So my overall impression is that former Confederates were readmitted to citizenship pretty much based on however much they desired it.
But Lost Causers who told the world:
;-)
Here's the list of exceptions:
The following classes of persons are excepted from the benefits of this proclamation:
First, all who are or shall have been pretended civil or diplomatic officers or otherwise domestic or foreign agents of the pretended Confederate government.
Second, all who left judicial stations under the United States to aid the rebellion.
Third, all who shall have been military or naval officers of said pretended Confederate government above the rank of colonel in the army or lieutenant in the navy.
Fourth, all who left seats in the Congress of the United States to aid the rebellion.
Fifth, all who resigned or tendered resignations of their commissions in the Army or Navy of the United States to evade duty in resisting the rebellion.
Sixth, all who have engaged in any way in treating otherwise than lawfully as prisoners of war persons found in the United States service as officers, soldiers, seamen, or in other capacities.
Seventh, all persons who have been or are absentees from the United States for the purpose of aiding the rebellion.
Eighth, all military and naval officers in the Rebel service who were educated by the government in the Military Academy at West Point or the United States Naval Academy.
Ninth, all persons who held the pretended offices of governors of states in insurrection against the United States.
Tenth, all persons who left their homes within the jurisdiction and protection of the United States and passed beyond the Federal military lines into the pretended Confederate States for the purpose of aiding the rebellion.
Eleventh, all persons who have been engaged in the destruction of the commerce of the United States upon the high seas and all persons who have made raids into the United States from Canada or been engaged in destroying the commerce of the United States upon the lakes and rivers that separate the British Provinces from the United States.
Twelfth, all persons who, at the time when they seek to obtain the benefits hereof by taking the oath herein prescribed, are in military, naval, or civil confinement or custody, or under bonds of the civil, military, or naval authorities, or agents of the United States as prisoners of war, or persons detained for offenses of any kind, either before or after conviction.
Thirteenth, all persons who have voluntarily participated in said rebellion and the estimated value of whose taxable property is over $20,000.
Fourteenth, all persons who have taken the oath of amnesty as prescribed in the President's proclamation of December 8, A.D. 1863, or an oath of allegiance to the government of the United States since the date of said proclamation and who have not thenceforward kept and maintained the same inviolate.
http://www.britannica.com/presidents/article-9116918
Moreover for some people Lee is some good gray saint and beloved father figure and Horiuchi, the Ruby Ridge sniper, is a murderer or mercenary or agent of tyranny, but who was truer to his oath? Who was involved with the cause of freedom -- if either of them was. Who has the blood of more Americans on his hands? Arguably we'd all be better off if no Robert E. Lee emerges to turn internal conflict into something like the last American civil war.
Finally, so much has changed in 20 or 50 or 100 years that it's hard to say how a secession situation would play out. Today, with riot gear, tasers, predator drones and the rest, it's possible that whatever happens wouldn't resemble either Ruby Ridge not Gettysburg.
The DoI is essentially a moral document, declaring what the people have the right to do. None of the Founders were stupid enough that they weren't fully aware that any group of people could do anything that someone else didn't stop them from doing. They addressed what people had a moral right to do.
So what were the "these ends" they referred to that the destruction of which would morally justify the alteration or abolition of the government?
It's the rights defined as being inalienable: to life, liberty and pursuit of happiness.
Surely no conservative American would defend the Bolshevik Revolution. It was perpetrated by people who were unhappy with their government and wanted to change it. Was this their Right, as defined by the DoI? Nope, because their revolt was not for the purpose of protecting or providing for those Rights that could alone justify such action. Indeed, it was implemented with the specific intention of denying those rights to those who disagreed.
Similarly, for one to appeal to the DoI as justifying secession in 1860, one must demonstrate why and how the Unites States government had become "destructive of these ends," or destructive to the people's Right to Life, Liberty and the Pursuit of Happiness.
Since, unfortunately, secession was undertaken specifically and explicitly for the purpose of continuing to deny those Rights to a very large percentage of those States' population, indeed in the case of at least two states a majority of the People.
Therefore, the secession of 1860 cannot be justified by the principles outlined in the DoI.
Which is not to say that secession for other reasons might not be fully justified by those same principles.
Can we be in clear agreement that the Federal Government, right now, is indeed destructive of these rights: abortion, drug laws (given legitimacy though they be unlawful), the assassination authorization capability of the NDAA, 'regulation' of industry (like incandescent lights), and so forth?
Of course the union is perpetual, and was recognized as such since the Articles of Confederation.
States are restricted in what they can do. One thing they can not do is raise armies for use against the US. Controversies between the states or between a state and the federal government are required to be resolved by a case with the Supreme court as original jurisdiction. That is, if the state had any respect for law of honor.
Let us say we did indeed start a business together. And presume that for what ever reason you wanted to end the association. In the contract we have a stated means for resolution of disagreements. But instead you clean out the checking account, seize the tools, and occupy the work shop.
After all, you figure it is only a few thousand dollars, not worth me fighting over it.
And then, I disagree with you over that too. Law enforcement is called, and they, after a brief and needless struggle, evict you. The court determines that your attempt to seize the shop and tools was wrong, and further that you are liable to pay back the checking account you cleaned out.
A hundred years later I can imagine your great grandson complaining, fruitlessly, much as you complain.
Of course the union is perpetual, and was recognized as such since the Articles of Confederation.
States are restricted in what they can do. One thing they can not do is raise armies for use against the US. Controversies between the states or between a state and the federal government are required to be resolved by a case with the Supreme court as original jurisdiction. That is, if the state had any respect for law or honor.
Let us say we did indeed start a business together. And presume that for what ever reason you wanted to end the association. In the contract we have a stated means for resolution of disagreements. But instead you clean out the checking account, seize the tools, and occupy the work shop.
After all, you figure it is only a few thousand dollars, not worth me fighting over it.
And then, I disagree with you over that too. Law enforcement is called, and they, after a brief and needless struggle, evict you. The court determines that your attempt to seize the shop and tools was wrong, and further that you are liable to pay back the checking account you cleaned out.
A hundred years later I can imagine your great grandson complaining, fruitlessly, much as you complain.
Given that our premises are polar opposites, we really have nothing to discuss.
I don’t see the federal government as destructive of a right to abortion. Quite the opposite, I suggest the federal government has created a right to abortion, against the states. Of course there are legal means to a remedy to that- Either by constitutional amendment, or by supreme court case that overrules Roe v. Wade, or by congressional legislation that removes review of medical regulations and procedures from the supreme court jurisdiction.
It isn’t for the want of blood from creep like you, if you were alive you would have probably pulled the lever on ole Gen Lee yourself.
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Coercion, and ultimately murder, is the bedrock of every statist. They worship and serve an passing abstractions at the expense of real people. God will damn them all, barring repentance.
Um, the things I was listing were things the government is doing destructive of the inalienable rights cited by the Declaration of Independence; abortion is destructive to the right to life... as is the assassination authorization of the NDAA.
Quite the opposite, I suggest the federal government has created a right to abortion, against the states. Of course there are legal means to a remedy to that- Either by constitutional amendment, or by supreme court case that overrules Roe v. Wade, or by congressional legislation that removes review of medical regulations and procedures from the supreme court jurisdiction.
Congress does not need legislation (signing it into law) -- but merely resolution -- because the Constitution gives to Congress the power to exclude cases from the Supreme Court. ... thus the President's approval (required for laws) is not needed.
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