The State Secession Issue & Texas v. White

In my experience, whenever the subject of the Confederate secession or of a modern attempt at the same thing occurs someone is bound to respond with a reference to the infamous case of Texas v. White (7 Wall. 700 ). This Reconstruction Era case was written essentially to put a headstone on the Confederacy's grave and to stifle any other State's interests in leaving the Union in the future. It was in all significant respects a politically motivated decision. It ignored certain specific constitutional provisions as well as prior decisions of the court. In short, the decision was just plain wrong.

A lot of readers may ask why this particular case of relevant today. The answer lies in the fact that the subject is now being discussed again by many citizens to a degree not experienced since 1860. There is a good reason for it. The overbearing attitude of the federal government which is trampling on and attempting to further trample on the rights of the states and the citizens makes many patriotic individuals wonder whether or not the only way to save the USA is to destroy it and rebuild it in the image of what the founders intended in 1789. If all of the states all broke of and left the feds hanging as a government without a country, it would present a singular problem for those who want to wield power. Of course, there are many individuals who put down this idea for various reasons. Some go so far as to assert that states cannot secede. These people are wrong, at least within the bounds of U.S. Constitutional law. An analysis of why follows.

When the state of Texas was admitted to the Union it received a large number of federal treasury bonds in exchange for dropping its claims in a territorial dispute with Oklahoma. Many of these bonds remained in the state treasury when the War Between the States began. After Texas withdrew from the Union, the State Treasurer of the Secession Government endorsed a number of them for sale to several English companies, one of which was named White & Chiles. In exchange, this company provided various supplies to Texas. These supplies were destroyed by Union Army troops during the war, and when White & Chiles attempted to cash in the bonds, the U.S. Treasury refused to accept them. When the war ended, the reconstruction government of Texas, instigated suit against White and others, to recover the bonds, which they received from Texas during the war.

This case is really about the rights of a good faith holder of government paper versus the government that had transferred that paper to them, albeit under unusual circumstances. One would think that White was the logical plaintiff complaining that the United States had refused to pay on its obligations. However, the suit was filed by Texas, essentially repudiating its own prior actions. This created a political issue because Texas had undergone changes in government, from pre-secession to secession to reconstruction since the bonds were originally issued. The bonds were received by the pre-secession government, were executed by the secession government, and the suit was filed by the reconstruction government. The suit was almost certainly contrived and calculated to provide a legal basis to prevent any other States from attempting to leave the Union in the future. That is exactly what the Court's opinion did.

The Court first examined the act of secession and made a determination as to whether the secession by Texas, and by the rest of the Confederacy, was constitutionally legal. In making this determination, the Court also decided whether the secession governments of the Confederate states were legal. On these questions hung the issue of whether Texas had the power to endorse the bonds while in secession, and what was to be done about them.

Interestingly, the Court's opinion failed to consider the possibility that in leaving the Union, Texas might have given up its rights in the bonds, or ceased to be a state, and therefore had no right to sue. The majority also neglected the possibility that Texas was not a state when the suit was filed. However, because the issue of the bonds had become essentially a pretext for the suit, and the majority of the Court accepted this pretext, they refused to deal properly with this question. The dissenting opinions did so, and are well worth studying.

- Political Questions The Court began its discussion of this case by outlining the history of the bonds, Texas' admission to the Union, the election of the Secession Government and endorsement of the bonds by that government. This historical background is essentially accurate. It could be taken seriously were it not for the histrionic language employed by Chief Justice Salmon Chase in which he thoroughly condemned the State's actions as having no legal basis. First, he attacked the delegates who convened and called for election of a new government as "irregular." Then he glossed over the fact that the regularly chosen legislature ratified this convention and that the Ordinance of Secession was ratified by popular vote of the people. This was certainly sufficient to remove any claim of irregularity. Chase then declared "Thus was established the rebel government of Texas." One wonders if Chase would take the same position with respect to the delegates who convened in 1776 to sign the American Declaration of Independence, and call their actions "irregular." Recall that English law at the time did not recognize a colony"s right to govern its own affairs, or "secede" from the English crown, either.

Aside from Chase"s view of the "irregular" actions of the people of Texas, this judgment was improper because the Court had previously addressed a similar question in the case of Luther v. Borden. In Luther, the Court had been asked to decide what constituted the legitimate government of the State of Rhode Island. Because of an electoral dispute, for a short time there were two governments in the state, both claiming legitimacy. Eventually, one was put down by force, and later, the Court stated that the matter was a political, and not a legal dispute. The Court declined any authority to rule in political disputes, and so matters in Maryland were let stand. The same course should have been taken in Texas, as the Courts no longer had any authority to decide what was the legal government of any state. It had voluntarily given up any right to do so. On that basis, the case could not go forward in the manner that it did. The Court's bias and its total neglect of Luther are obvious, and should have been denounced by legal scholars. Such criticism is conspicuous by its absence.

- A More Perfect Union? After the above error, Justice Chase attacks secession by using the Preamble to the Constitution; very unusual step, as preambles to legal documents are almost never considered a part of the effective body of the document. In business contracts the specific intent of the parties is contained in the body of the document, which is enforced if it comes before a court of law. This opinion by Justice Chase is the only occasion, of which this author is aware after much research, when the Preamble to the Constitution has been cited as having any legal effect. The United States Codes Annotated and United States Code Service reference digests, which cover the Constitution in great detail, do not mention any such use; not even this one. It appears likely that this was the only such use.

Chase's reasoning begqn with language in Preamble to the Articles of Confederation, which stated the intent that the union under their auspices was to be "perpetual." Because the Articles were replaced by the Constitution in 1789, with a stated purpose "to form a more perfect Union", Chase argued that this "more perfect union" was one that could never be broken under any circumstances. Nowhere in the body text of the Articles or the Constitution was it stated that the Union was to be permanent or perpetual. The report of the Annapolis Convention of 1786 revealed that a real danger of dissolution of the Pre-1789 Confederation existed, and that if the Constitution had not been created, it is likely that the original states would have gone their separate ways.

Chase's reliance on these particular items was wrong. Perhaps he did so only because he had nothing else to use and he needed something to fit his purpose. He cites no other authority to back his contention that the framers of the Constitution intended a perpetual and permanent union. The Constitution does not directly address the questions of secession or perpetuity at all. Chase did not cite any writings by the authors of the Constitution or delegates to the convention on the subject. Thus, Chase had insufficient legal authority to form a valid conclusion of law on this point.

It is also important to note that the forces driving the original states apart before 1789 and those which led to the Southern Secession were essentially the same. They were issues of the state's rights to control their own destinies and for their citizens to freely engage in commercial activity. By 1860 the use of federal power to restrain some states, while granting others favorable positions had become a major concern to the South. Before 1789 there were several instances of states on the verge of border wars over commercial competition and land ownership disputes. A more perfect union was needed, but not one, which enslaved the states to the federal system. Rather, a union which limited disputes between states and which provide an orderly system of resolving them was the proper prescription.

- The Tenth Amendment Despite all the above, and assuming that the Supreme Court could rule on the subject, there really was only one conclusion which the Court to reach, within the text of the Constitution. The simple fact is that the four corners of the document do not contain any reference whatsoever to the subject of a state leaving the Union. There is no permission, nor is there any prohibition. This lack leads us to look at the Tenth Amendment, which states that any powers not delegated to the Federal Government are reserved to the States or to the people. It should thus be incontrovertible that the power to leave the Union is a reserved power specifically held by the States or people under the Tenth Amendment. Recall that the people of the State of Texas voted to secede in a statewide election and that the election was held at the behest of the state legislature. In seceding Texas could very easily be seen as simply exercising a constitutional power reserved for it by the Tenth Amendment.

- The Strange Matter of West Virginia As mentioned above, the Supreme Court stated in its opinion that the Union was perpetual and indivisible. It also stated that the Union was composed of indivisible states. On this basis it concluded that Texas could not leave the Union, and therefore, had never left the Union. Somehow the Court never got around to discussing how this rule applied to the state of West Virginia.

Virginia was one of the states that left the Union and joined the Confederacy. When Virginia did this a small portion of the state petitioned Washington DC to be admitted to the Union as a state in its own right. Congress granted the petition, and West Virginia became a separate state independent of Virginia proper.

When the Supreme Court decided Texas v. White it clearly forgot to order Virginia and West Virginia to get back together. Because Texas could not leave the Union, clearly Virginia could not either. Because Texas had never left the Union, Virginia also had not. Therefore, the West Virginians had no cause and no power to petition for statehood. Finally, because the Court ruled that the states and the Union are indivisible, West Virginia could not separate itself from the rest of the state of Virginia. Clearly, we should only have 49 states today, given what has happened since 1865.

- Was There Proper Jurisdiction? There is also another issue, which needs to be discussed; whether or not the Court had proper jurisdiction because of the question of whether Texas was actually a state at the time that the case was filed.

This question was addressed in the dissenting opinions, which suggested that there was no jurisdiction based on statehood, and claimed that Texas had ceased to be a state at some poorly defined point, and certainly was not being governed as a sovereign state at the time that the case was filed. If Texas was no longer a state, then it had no right to file the case at all. The reconstruction government certainly placed severe limitations on Texas' sovereignty, and in many respects the system looked more like the federal administration of either a conquered enemy, or an unincorporated territory. There clearly was a serious issue here, which the majority of justices failed to recognize. Perhaps they accepted Justice Chase's position; that because Texas could not leave the Union, it never ceased being a state, which then asks us why it was not independent and self-governing after the war ended, and why the federally dominated Reconstruction government was necessary.

Having dissected the Supreme Court opinion, what remains is to explain what the Court should have done. Despite the heavy patina of constitutional law placed there by the Court to disguise its actions, the answer to this case is really quite simple if you carefully examine one salient background fact.

When White and the other parties to the transactions accepted the federal bonds as payment for their wares, they also accepted the risk that the US Treasury would not honor them. Consider that if regardless of whether Confederacy prevailed, the Treasury would have been unlikely to honor bonds endorsed by a "rebel" government. This is exactly what happened. And, if the Confederacy had prevailed against the Union the chances of the bonds being honored would be even less because of the success of the "rebellion." Either way, White had lost his money.

The fortunes of war often dictate events and circumstances, which are beyond the ordinary expectations of commerce. That is why virtually all commercial contracts contain provisions allowing non-performance by the parties when it is due to an act of war, government intervention, or extreme circumstances sometimes referred to as an "act of God." White assumed that risk and lost.

As the Confederate secession had become a political matter, settled by political means, the disposition of the bonds also became a political issue. White, as a holder in due course, was now the proud possessor of worthless paper due to the fortunes of war. The Treasury had no duty, other than that of ordinary commerce, to honor the endorsement of a foreign government whether legitimate or otherwise. The Court could still have ruled that White and his compatriots had a duty to return the bonds to Texas; however, enforcement might have been difficult if not impossible, if White and the other holders refused to comply. To sum up the situation, if Washington, DC wanted to and had a duty to restore Texas to its original position, it would have been a very simple matter to cancel the old bonds and issue new ones to replace them. It would have been even simpler to do it by accounting entries. All of the fuss and bother of a court fight could have been prevented. There is a reason why the Treasury did not do so. It was necessary for the Court to get involved solely to condemn the right of secession.

For this reason, and those others articulated above, the Supreme Court had no business hearing or ruling on this case at all, unless it was to support the right to secede.

What I'm saying it, just don't underestimate the difficulty of secession or any other revolutionary solution to our problems. Many posters seem to think that a few small arms in the hands of "bitter clingers" can save the country. The South had a ready-made military establishment in the form of U.S. Army vets who defected to the CSA. They confiscated the weapons, including artillery, of the Federal bases within their borders. They had a real army. They fought bravely. Yet they lost.

The 0bammunists would come at any popular "rebellion" with overwhelming military force, just as Chavez, the Iranian mullahs, and the Soviets have done. The only chance for success is if a substantial part of the existing armed forces turn on the regime.

"The 0bammunists would come at any popular "rebellion" with overwhelming military force, just as Chavez, the Iranian mullahs, and the Soviets have done. The only chance for success is if a substantial part of the existing armed forces turn on the regime."

That's because the US Constitution requires the Federal Government to defeat rebellions, insurrections, invasions and domestic violence. So fageddaboutit.

So, do you want to secede? Do you really truly honestly sincerely want to secede? OK, here's how you do it:

You secede the exact same way you got into the Union in the first place -- your state government applies to the US Congress to secede. Then you negotiate, and negotiate and negotiate -- possible for years.

When it's all said & done, there is a new contract -- a new constitution which is ratified just like the old one, and provides for the seceding states in whatever status & term were finally agreed to.

There is no blood-shed, no law breaking, no violence. It's all done in a very civilized, peaceful manner.

Does that sound unrealistic? Well of course, but it's the only POSSIBLE way. Anything else and your violence will be met with overwhelming constitutionally mandated Federal force.

Chase's reasoning [began] with language in [the] Preamble to the Articles of Confederation, which stated the intent that the union under their auspices was to be "perpetual." Because the Articles were replaced by the Constitution in 1789, with a stated purpose "to form a more perfect Union", Chase argued that this "more perfect union" was one that could never be broken under any circumstances.

True - but it was an idiotic argument.

Nowhere in the body text of the Articles or the Constitution was it stated that the Union was to be permanent or perpetual.

False - Article XIII (IIRC) of the Articles of Confederation referred to a 'perpetual union,' but the States that ratified the new Constitution seceded from that supposed;y 'perpetual union,' when they submitted their ratification documents. As James Madison noted in Federalist No. 43,:'

"The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same."
This article speaks for itself...
Two questions of a very delicate nature present themselves on this occasion...
2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it?
...The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other.

The ratification of the Constitution was, in fact, an act of State secession from a self-described 'perpetual union'...

The report of the Annapolis Convention of 1786 revealed that a real danger of dissolution of the Pre-1789 Confederation existed, and that if the Constitution had not been created, it is likely that the original states would have gone their separate ways.

They went 'their separate ways,' when they ratified the new Constitution, under the specific written terms of Article VII thereof ("The Ratification of the Conventions of nine States [NOT THIRTEEN States - see Article XIII of the Articles of Confederation], shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same")...

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