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 ...
Accession to the United States has occurred in several ways. Texas was added by legislation, and the annexation law was agreed to by the people of Texas.
New Mexico, Arizona territories were purchased by the US in accordance with treaties with Mexico. Alaska likewise was purchased from Russia. States south of the 48th parallel became part of the Union by treaty with GB.
Disputes between states are required to be resolved by the Supreme Court. That is a legal matter, not a political matter. Every state has a boundary, and both would have to agree to it in the event of secession. That is why any pretense at secession quickly would go to the Supreme Court.
Bodies in the streets work both ways. Modern day rebels would have to kill people to get the news media to pay attention to their pitifully small numbers and deluded goals.
That was why the rebels of 1861 fired on US forces in Ft Sumter performing their duty. The rebels fired from stolen US forts, with stolen US cannon. And their illegal acts galvanized the US to resist them.
Of course the supreme court is not always right. When it makes an error, the error can be corrected, as the Dred Scott decision was corrected by 13th, 14th, and 15th amendments.
The people are sovereign. They express their sovereignty by various government bodies and procedures.
No, secession does not need to be valid for West Virginia to be entered as a valid state. When a state enters insurrection, the US does not lose the territory, rather, its state government institutions lose legitimacy, and its land area reverts to being a territory. As a territory, the Congress has the authority to set boundaries and to establish state governments, which the Congress did. Congress retains the right and duty to directly rule areas in insurrection, because of the constitutional guarantee that each state has a republican form of government.
Just as the boundaries of Ohio, Indiana, Michigan, and Illinois were set by the Congress, and state governments in those territories were established.
Virginia did consent, as the conquered territory in rebellion had a state government established for it, and their application to have that new state government be represented in Congress included recognition of the new boundaries established by Congress.
That would be the section of the constitution that gave the federal constitution and federal law supremacy, and the part that required states to resolve differences at the Supreme Court.
The people are sovereign. State governments are one of the instruments that represents and implements the people’s sovereignty, just as the federal government is another instrument that represents and implements sovereignty.
the union still existed, the government was in transition from the A of C to the Constitution.
Quotes of President Jefferson Davis
"The withdrawal of a State from a league has no revolutionary or insurrectionary characteristic. The government of the State remains unchanged as to all internal affairs. It is only its external or confederate relations that are altered. To term this action of a Sovereign a 'rebellion' is a gross abuse of language."
"Obstacles may retard, but they cannot long prevent the progress of a movement sanctified by its justice, and sustained by a virtuous people ."
"Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are Sovereign. There was a time when none denied it. I hope the time may come again, when a better comprehension of the theory of our Government, and the inalienable rights of the people of the States, will prevent any one from denying that each State is a Sovereign, and thus may reclaim the grants which it has made to any agent whomsoever."
"The contest is not over, the strife is not ended. It has only entered upon a new and enlarged arena." Jefferson Davis, address to the Mississippi legislature - 16 years after the wars end.
"The principle for which we contend is bound to reassert itself, though it may be at another time and in another form."
Were here Mr. Davis....
A shocking error. G.W. Paschal was never governor of Texas. Sam Houston was Governor in 1861. Houston strongly opposed secession and was forced from office.
Divide the number of tanks in the USA Army’s inventory by the number of counties in the USA and get back to me. Our standing Army is shrinking by the day. I say good....
Actually the land removed from the claims of Texas and incorporated into other states fulfilled the option of Texas to split into different states. Texas assented to it. The boundaries of the states are set by congress, and adjudicated when necessary by the Supreme Court.
And forty regiments of southern men fought the United States.
Compare that to Alexander Stephens’ Cornerstone speech or the writings of Robert E. Lee, who frankly state that secession was revolutionary.
“Accession to the United States has occurred in several ways.”
The subject was NOT accession to the United States as a U.S. territory. The subject was accession of a foreign republic, foreing territory, or an existing U.S. Territory as a State in the perpetual Union.
So long as you recognize that the Union is not a league, and the discredited Davis is not an unbiased party or even a competent party.
Davis had to pretend that the Union did not exist, or else he would be admitting to treason.
Close enough for you to object to the point you say I am not making. That works for me.
This is utterly incorrect, both in the theoretical and the factual. Virginia was one of the colonies which won independence from Britain and was indeed a State before the Congress ratified the Constitution, or even the Articles of Confederation. -- If it were to 'revert', then it must needs be revert to an independent State [read nation].
As a territory, the Congress has the authority to set boundaries and to establish state governments, which the Congress did. Congress retains the right and duty to directly rule areas in insurrection, because of the constitutional guarantee that each state has a republican form of government.
This also is incorrect.
Here is the vote by county for WV statehood:
http://www.wvculture.org/History/statehood/cc120661.html
Note, there were 65,000 eligible voters in these counties so the vote for statehood was less than 30% with the great majority coming from counties along the Ohio. Most of the counties were occupied by Union troops and even some Union troops from Ohio voted.
Virginia only sued to get back the counties of Jefferson and Berkley.
Pendleton County West Virginia is named after my Xth Great Uncle, Edmund Pendleton who, along with George Washington and Patrick Henry, represented Virginia in the First Continental Congress. Pendleton County was made part of West Virginia against the wishes of its inhabitants.
My great-great-grandfather lived in Frederick Co., VA, near the border with Berkeley Co., in 1860, and served in the Confederate army. After the war he moved to Kansas but his grave has a plaque on it reading "Confederate veteran."
Except that Virginia signed onto the Union with the Declaration of Independence. They signed onto the Union with the Articles of Confederation. They signed onto the Union with the Constitution.
Virginia was never an independent state outside the Union. It was a state as part of the Union. 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. Accordingly, it remains a US territory without a legitimate state government.
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