GOPcapitalist once put this way about the [precedent] of Texas v. White on secession:
That precedent is built upon the point of a bayonet and nothing more. If you subscribe to the mistaken belief that law is nothing more than an accumulation of words upon sword tips, then yes. It is illegal. If you believe that law is predicated upon a greater and immutable truth than sword tips however, then secession was, is, and always will be a perfectly legal and legitimate act.
Analogous to what y'all seem to believe solved the status of Fort Sumter. But I digress.
We've been through this before. Here's a link to a long chain of posts between the two of us and several others on Eminent Domain. I'll summarize the discussion:
- I posted that South Carolina claimed the fort under eminent domain.
- You said they couldn't do that under the US Constitution.
- I said the US Constitution no longer applied but the Confederate Constitution did.
- I cited where the Confederate Congress had authority over forts, arsenals, etc.
- You said eminent domain could not be applied to property owned by foreign governments.
- I found an article that said the US had done just that.
- The article noted 1940 & 1941 US laws allowing seizure of foreign properties.
- You wanted something more recent.
- I cited a 1974 case.
Complain, complain, complain.
The case you cited said "counties would become part of West Virginia "whenever" voters assented. But counties whose voters had not assented were forced to become part of West Virginia that no one in their county had voted for.
Well that's a sure way to sell your point. </sarcasm> Here's a link to a long chain of posts between the two of us and several others on Eminent Domain. I'll summarize the discussion:
It was an ridiculous argument on your part then and it's just as ridiculous now. Eminent domain doesn't apply. Eminent domain requires judicial proceedings, not just the barrel of a gun. Eminent domain protects the rights of both sides, not just the side stealing the property. Eminent domain does not allow a state to seize the property of the federal government, any more than it allows the federal government to seize the property of a state. And even if your claim of confederate sovereignty been true, eminent domain does not allow one sovereign nation to seize the property of another sovereign nation. That would require a treaty.
by William Miller
.......... As far as the merits of Texas v. White are concerned, the most serious flaw in bestowing any credibility on this decision was that this case was not about secession; it was about the ownership and sale of bonds as well as jurisdiction. The parties to this case did not argue or cite evidence claiming the States had, or did not have, a right to secede; they focused their arguments on the legality of the bond sale, and their arguments on jurisdiction dealt with the status of Texas as a State under military rule—not if Texas had the constitutional right to secede.
The Chief Justice made his comments on secession when he wrote the majority opinion, and his comments were not based on arguments made by the parties to the case. Furthermore, the Chief Justice’s comments were what is know as “dicta,” which is defined at Law.com as,
A comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be cited in legal argument, it does not have the full force of a precedent.
It is therefore unreasonable to claim this issue was “decided” when the arguments presented by the parties to the case did not address the right of States to secede. Without the opportunity for argument, debate, and rebuttal on the issue, it cannot be said that this issue was “decided” when a very partisan Chief Justice took the occasion to insert his opinion on a question that was not argued before the Court.
Texas v. White involved a claim by the State of Texas that United States bonds, paid to Texas as part of the Compromise of 1850, had been improperly sold by the Confederate State legislature during the Civil War. During the reconstruction period, the governor of Texas sued the purchasers of the bonds to reclaim them because the manner in which the transactions were carried out was, in his opinion, illegal.
The defense raised several arguments including one of jurisdiction, claiming that Texas, during reconstruction, was not a State since it was under the authority of the military and had no representation in Congress. This provided an opportunity for Chief Justice Chase to include in the majority opinion his ruling, as dictum, that the States did not have the right to secede, and therefore Texas was then, and had always been, a State.
Fact is, there has never been a court case where arguments were made on the right of States to withdraw from the Union. Without the opportunity for both sides to present their arguments on the issue, just dicta alone from the Chief Justice does not establish a precedent setting opinion of the Court. This fact alone should put an end to the use of Texas v. White to refute the right of States to withdraw from the Union, but even so, there are other problems with Texas v. White that need to be exposed.
There was also a serious conflict of interest and lack of impartiality by the Chief justice in his writing of the majority opinion. There were five Lincoln appointees sitting on the bench when Chief Justice Chase offered his opinion on secession, but the Chief justice was the only Justice intimately entwined with the Lincoln administration and its policies regarding secession. He certainly should have recused himself if he was going to opine from the Bench on Lincoln’s view of secession.
Chief Justice Chase was an integral part of the Lincoln administration and served as Treasury Secretary from 1861 until 1864, after which Lincoln nominated him as the Chief Justice of the United States. While in the Lincoln administration, Chase was one of only two cabinet members offering support for Lincoln’s plan to resupply Fort Sumter.
As Doris Kearns Goodwin recounts on page 336 of her book Team of Rivals, Secretary Chase suggested that Lincoln consider, “The organization of actual government by the seven seceded states as an accomplished revolution—accomplished through the complicity of the late admn—& letting that confederacy try its experiment.” As Secretary, Chase seemed to support the idea that, as he referred to them, “the seceded seven states” had organized an “actual government.” Nevertheless, as Chief Justice, he perhaps looked to find some justification for the death and destruction perpetuated by an administration of which he was intimately involved. There can be no doubt that the Chief Justice should have recused himself from inserting an opinion of the court on the constitutionality of secession—the core issue of Lincoln’s administration, of which he was a key collaborator.
It is interesting that in Justice Chase’s opinion, he again used the term “the seceded states” as he did in his advice to Lincoln on Fort Sumter. Not to make too much of this phrase, but Lincoln seemed to take great care not to use the “seceded states” phrase, for in doing so it could be taken as an admission that the States had indeed seceded. Further evidence that Chase believed secession had occurred can also be found in his opinion on this case when he wrote, “The relations of Texas to the Union were broken up, and new relations to a new government were established for them.” Here again, he seemed to be saying that Texas had indeed “broken up” its relations with the Union and joined another government—in other words, they had seceded.
Despite Chief Justice Chase’s clear bias regarding the issue of secession, there were also problems with the underlying facts of his ruling. Not surprisingly, for someone intimately involved with Lincoln’s administration, his opinion parroted one of Lincoln’s arguments—the thoroughly debunked theory of, “a more perfect and perpetual Union.”
Chase claimed, “The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States.” However, he failed to mention or explain the secession of nine of these original States from their first union (the Articles of Confederation); the only union the States ever proclaimed to be perpetual. There can be no doubt that our first Union under the Articles of Confederation, although claiming to be perpetual, or our current Union under the Constitution, without any such claim of being perpetual, were neither perpetual nor indissoluble.
It was also odd that for someone as well versed in the law as was the Chief Justice, to use a phrase found in the preamble of our Constitution, “a more perfect union,” upon which he based his claim of a perpetual union. Odd because preambles and headings are rarely used to form legal opinions.
This ruling also claimed the, “Authority to suppress rebellion is found in the power to suppress insurrection and carry on war, and authority to provide for the restoration of State governments, under the Constitution, when subverted and overthrown, is derived from the obligation of the United States to guarantee to every State in the Union a republican form of government.” But Chase’s opinion conveniently leaves out the constitutional requirement for the “Application of the Legislature” in the suppression of domestic violence, the constitutional protection against invasion, and the fact that the seceded States had a “republican form of government” under their newly constituted government.
Another canard promoted in the Court’s opinion claims, “War having become necessary to complete the purposed destruction by the South of the Federal government, Texas joined the other Southern States, and made war upon the United States…” This is pure nonsense since even those deniers of the right of secession understand that the South was not attempting to wage war against the United States—they simply wanted to be left alone.
Finally, the United States Supreme Court, as an impartial arbiter on disputes involving the interpretation of the Constitution, has lost all credibility. Who can deny that politics plays the most prominent of roles in the nomination of Supreme Court Justices as well as their confirmation. Republicans and Democrats both work to insure that new Justices look favorably on their issues when they are seated on the Court. If one needs any evidence of the extreme political nature of the Supreme Court today, all they need do is look at the number of 5-4 decisions on issues of import—with the same Justices split ideological between liberal and conservative views.
The opinions rendered in this case had many flaws when it came to deciding the constitutionality of secession, and any one of the more serious problems found in the majority’s opinion should be enough to remove the cloak of respectability from this dubious opinion. While there was no evidence of such, some believe this case was manufactured for the sole purpose of legitimizing the Civil War. 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. Texas v. White offered that opportunity, regardless of the convoluted and flawed opinion of the Court’s majority.
Of course that logic applies just as much to those who claim that secession was legal in 1860 doesn't it? More so if you consider that the southern rebels resorted to actual violence and intimidation to re-enforce their distorted POV. Too bad they didn't plea their case to the US Supreme court before taking up arms against the United States, they may have won.
But at least the long since departed GOPcap was willing to make an argument based on substance, something this current crop of neo-secessionist runts seem incapable of.