Posted on 06/20/2022 12:42:25 PM PDT by DFG
The fear is rational—it is that voice in the back of their heads saying they wish the rule of law still existed, they wish that elections still mattered, they wish that courts treated everyone fairly, etc.
The change will be awful for many folks.
My only point is that pieces of paper will not be relevant.
When the time comes for breakup it will happen—and all the “rules” and “laws” will become quaint reminders of a distant past.
The dirty little secret of human affairs is that they are not rational, they are not predictable, and often they are not pleasant.
So—I understand the fear.
Simply not true. The US Constitution is silent in the issue of state secession.
Legally, constitutionally, there is no prohibition for a state(s) to leave the union.
No amendment needed because the US Constitution is silent on the issue
BS. The USC is SILENT on the issue, neither prohibiting or allowing it. Therefore it is up to the state(s).
Good luck funding your woke US military when half the population is gone.
“pieces of paper will not be relevant.”
That is the part folks are not understanding-it is almost denial to believe pieces of paper-no matter what they say-are going to keep order-especially when they don’t keep order now-not even the constitution...
I didn’t realize that half the population of the country lived in Texas.
Texas v. White was a 5-3 decision made with the benefit of four justices nominated by Lincoln with out the Southern states having representation in the Senate.
A 5-3 opinion is as binding as a 9-0 opinion. Who nominated the justices is irrelevant to the legal validity of the opinion.
Chief Justice Taney had died in 1864, and Justice John Archibald Campbell, a Southerner born in GA, quit after secession. Neither is likely to have agreed with Lincoln appointed CJ Chase on that point,
Utterly irrelevant.
and even so Chase's argument can be dismissed as so much obiter dicta, as that was incidental to the issue of whether or not Texas had actually sold the U.S. bonds at issue.
Absolutely false.
The decision could not be reached without determining whether Texas was, or was not, a state and in the Union. To establish jurisdiction of the Court, Plaintiff State of Texas had to show that it was a State and in the Union.
Black's Law Dictionary, 11th Ed.
Syllabus. A case summary appearing before the printed judicial opinion in a law report, briefly reciting the facts and the holding of the case.- - - - - - - - - -
Holding. A court's determination of a maztter of law pivotal to its decision; a principle drawn from such a decision.
- - - - - - - - - -
Obiter dictum. [Latin "something said in passing"] A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case, and therefore not precedential.
Holdings are recited in the Syllabus, dicta are not. See what is recited at the start of the Syllabus in Texas v. White.
1. The word State describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country, or territorial region, inhabited by such n community; not unfrequently it is applied to the government uder which the people live; at other times it represents the combined idea of people, territory, and government.2. In the Constitution the term State most frequently expresses the combined idea just noticed, of people, territory, and government. A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.
3. But the term is also used to express the idea of a people or political community, as distinguished from the government. In this sense it is used in the clause which provides that the United States bhall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion.
4. The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew'out of conimon origin, mutual sympathies, kindred principles, similar interests, and geographicil relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction, from the Articles of Confederation. By these the Union was solemnly declared to "be perpetual." And, when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "' to form a more perfect Union."
Texas v. White, Opinion of the Court at 719-720:
The other allegation presents a question of jurisdiction. It is not to be questioned that this court has original jurisdiction of suits by States against citizens of other States, or that the States entitled to invoke this jurisdiction must be States of the Union. But it is equally clear that no such jurisdiction has been conferred upon this court of suits by any other political communities than such States.If, therefore, it is true that the State of Texas was not, at the time of filing this bill, or is not now, one of the United States, we have no jurisdiction of this suit, and it is our duty to dismiss it.
We are very sensible of the magnitude and importance of this question, of the interest it excites, and of the difficulty, not to say impossibility, of so disposing of it as to satisfy the conflicting judgments of men equally enlightened, equally upright, and equally patriotic. But we meet it in the case, and we must determine it in the exercise of our best judgment, under the guidance of the Constitution alone.
The question of jurisdiction is paramount as, without jurisdiction, the Court has no authority to hear the case. Absent a holding that Texas was and had been a State, the case would have, of necessity, been dismissed. The related holding of the Court determining that Texas was a state at all relevant periods was most definitely not dicta.
At 724, the Court framed the question it needed to answer:
In all respects, so far as the object could be accomplished by ordinances of the convention, by acts of the legislature, and by votes of the citizens, the relations of Texas to the Union were broken up and new relations to a new government were established for them.The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion which these events made inevitable. During the whole of that war, there was no governor, or judge, or any other State officer in Texas who recognized the National authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State except under the immediate protection of the National military forces.
Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?
It was not just the majority that addressed this indispensable issue. All of the dissents focused on it.
Grier, J., dissenting at 737:
The first question in order is the jurisdiction of the court to entertain this bill in behalf of the State of Texas.The original jurisdiction of this court can be invoked only by one of the United States. The Territories have no such right conferred on them by the Constitution, nor have the Indian tribes who are under the protection of the military authorities of the government.
Is Texas one of these United States? Or was she such at the time this bill was filed, or since?
Swayne, J., dissenting at 741:
I concur with my brother Grier as to the incapacity of the State of Texas, in her present condition, to maintain an original suit in this court. The question, in my judgment, is one in relation to which this court is bound by the action of the legislative department of the government.Upon the merits of the case, I agree with the majority of my brethren.
I am authorized to say that my brother MILLER unites with me in these views.
The Court very explicitly provided the answer required to assume jurisdiction of the case. Texas had not ceased to be a state and the state had not left the Union.
I have no doubt the case was concocted for the purpose of giving the Court a case upon which it could issue a holding finding secession unconstitutional. The State of Texas was represented by the military government imposed upon it by the Federal government. The value of the bonds was less than the attorney fees paid to process the suit at the Supreme Court. The Chief Justice is the same person who had recently given the Federal prosecutors a way out of ever bringing Jefferson Davis to trial. Chase's idea was quite intrigueing. The 14th Amendment, Section 3, indicated that a person who had taken part in insurrection or rebellion could not hold any office, civil or military, under the United States or any State. This Davis (and others) had been punished for such acts. His trial, delayed since 1865, had to be dismissed due to the double jeopardy clause of the 5th Amendment. It was on Chase's ex parte suggestion that a motion was brought and the case was dismissed.
Panels of legal experts repeatedly counseled against bringing Davis to trial, lest the Federal government lose the argument of secession in criminal Court. A dream team of of the best criminal defense attorneys stood ready to defend Davis. They were highly motivated by four years experience dealing with the suspension of habeas corpus, and clients held without charge or trial.
Regardless, Texas v. White stands as Supreme court precedent that secession is unconstitutional, and declarations of secession are null and void. It will remain the law until the Constitution is amended to way otherwise, or the Court changes its mind and issues a superseding opinion.
If Texas goes so goes the middle 3/5 to 1/2 of the USA with it.
However, has the Supreme Court silent on it because it has never been raised to the Supreme Court to review? I think th answer to that question is yes.
I’m going to play Devil’s Advocate here.
Fair enough. I'll play advocate.
Don’t you think it would have been more appropriate if you had referenced the Texas Constitution that is in effect today, and has been since 1876 (NOT 1868)? Or, are you attempting to play fast and loose with the facts?
As the 1876 state constitution did not address the issue, and the 1868 state constitution did, it was the most appropriate to quote for the purpose of demonstrating the state's official acknowledgement of heresy. The State clearly stated that Secession and Nullification were constitutional heresies. Maybe Texas lied in its constitution to regain representation in Congress.
What law would a seceding state be making or enforcing WITHIN THE UNITED STATES — by secession? None. “Making” and “enforcing” are both active actions (i.e., they are acting UPON someone or something). Thus, the active qualifiers of MAKING a law or ENFORCING a law necessarily mean WITHIN THE UNITED STATES.
The only entity that can possibly secede from the United States is a state of the United States. The act of seceding would necessarily take place while in the status of being a member state. The act of seceding undoes the prior act of acceding.
The seceded state is not doing that, because the seceded state is no longer part of the U.S., and therefore is neither making nor enforcing a law within the U.S.
The unseceded member state did that because it is the only way to attempt to become seceded.
It is akin to the colonies declaring themselves to be independent. It was the British colonies that declared independence, not the independent states. That is essentially what Texas would have to do. It was not legal proceeding when the colonies did it. It was a rebellion.
Unfortunately for any lawful secession argument, it falls to the directly opposed precedential holding of the U.S. Supreme Court in Texas v. White, 74 U.S. 700 (1869).
The related holding of the Court held that Texas was a state at all relevant times, could not legally separate itself from the union, and did not ever separate itself from the union. It is irrelevant whether you or I agree with the Supreme Court or not. Theirs is the interpretation which prevails as the law of the land until the law is changed, or they issue a superseding interpretation.
At 724, the Court framed the first question it needed to answer:
In all respects, so far as the object could be accomplished by ordinances of the convention, by acts of the legislature, and by votes of the citizens, the relations of Texas to the Union were broken up and new relations to a new government were established for them.The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion which these events made inevitable. During the whole of that war, there was no governor, or judge, or any other State officer in Texas who recognized the National authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State except under the immediate protection of the National military forces.
Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?
- - - - - - - - - -
“Any Texas claim of secession would terminate the privileges and immunities of all citizens of the United States resident in Texas.”No, it wouldn’t, as U.S. citizens would still have all the privileges and immunities of U.S. citizens while they are within the United States, and would still retain those rights and immunities within the seceded state (which would be its own country or would have allowed itself to be annexed by another), but subject to the laws of the seceded state or the country to which it has become annexed, just as U.S. citizens on foreign soil have always been subject.
When the colonies became independent of England, all those who remained in the States became American citizens. What of British loyalists in the former colonies? In the states, the British loyalists became enemy aliens. If they stayed permanently, they became American citizens. If they wanted to retain British subject status, they went to someplace else. They went to Canada where they could take their slaves, if any. They went to Florida. They went to Newfoundland. They went to the Caribbean islands. They went to Great Britain. They went by the tens of thousands, estimated to be about 20% of the population.
If Texas actually seceded, citizens of the Republic of Texas might need a passport to enter the United States. Texas would no longer be in the union. Texas citizens would be considered aliens by the United States. Any commerce between the two would be international commerce.
When Vermont separated from New York in 1777, it waged successful revolution and became a free and independent state, having its own currency and postal system. It did not have a seat in the Continental Congress. It is not mentioned in the Paris Peace Treaty of 1783. In 1791 Vermont was not part of the United States or any union during its period of independence. It was not a territory of the United States. It was not annexed by the United States. Vermont joined the constitutional union as a free and independent state with self-appointed borders, and became the 14th state.
https://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=506
May 14, 1790
The Senate proceeded to the second reading of the bill to prevent bringing goods, wares, and merchandises, from the State of Rhode Island and Providence Plantations into the United States, and to authorize a demand of money from the said State.And, on the question, to assign a time for the third reading of this bill, the yeas and nays being required by one-fifth of the Senators present:
Yeas.—Messrs. Bassett, Carroll, Dalton, Ellsworth, Johnson, Johnston, Izard, King, Langdon, Morris, Read, Schuyler, and Strong.—13.
Nays.—Messrs. Butler, Elmer, Gunn, Henry, Maclay, Walker, and Wingate.—7.
So it was
Ordered, That this bill have the third reading on Monday next.
Monday, May 17.
The Senate proceeded to the third reading of the bill to prevent bringing goods, wares, and merchandises, from the State of Rhode Island and Providence Plantations into the United States, and to authorize a demand of money from the said State, and,
On motion,
Ordered, That this bill be recommitted.
May 29, 1790 - Rhode Island ratified the Constitution under coercion. That was quick. Previously, Rhode Island had refused to send delegates to the Constitutional Convention and had refused to convene a State ratifying convention. It voted against ratification on multiple occasions. George Washington had been inaugurated on April 30, 1789, more than a year before Rhode Island ratified. Note that Rhode Island was not in the constitutional United States at the time of the Senate vote regarding a bill to place a total embargo on goods from Rhode Island entering the United States. Facing economic ruin, Rhode Island suddenly ratified what it had refused to ratify.
Rhode Island did not secede from the self-proclaimed perpetual Confederate union. Rhode Island (as well as North Carolina) was left behind by the eleven states that formed a new constitutional union, with a radically different form of government.
The United States has not treated recalcitrant states with brotherly love. They went to war with the Confederate States, and they threatened Rhode Island with a total embargo. I would expect them to do no less for the great state of Texas.
It's an interpretation, not an explicit rule in the Constitution.
The precedential holding in the Supreme Court case of Texas v. White, 74 U.S. 700 (1869) is the law of the land until the Constitution is amended, or the Court issues a superseding opinion. That is not weak; that is the law of the land. Rightly or wrongly, it holds that secession is unconstitutional.
A shit hole in the ‘80’s when I was working there and it's one now.
Otra vez con respecto but have you ever lived in Sarajevo? I haven't but that's what Balkanization looks like, along with artillery, you know the big stuff. 130mm and 152mm and 120 mm mortars. We're not there. At least not yet.
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
“As the 1876 state constitution did not address the issue, and the 1868 state constitution did, it was the most appropriate to quote for the purpose of demonstrating the state’s official acknowledgement of heresy.”
The 1868 Texas Constitution said, as follows (per your own argument in your earlier post):
Article I
Bill of Rights
That the heresies of nullification and secession, which brought the country to grief, may be eliminated from future political discussion....
The 1876 Texas Constitution’s Article I, Bill of Rights (which I cited previously), completely eliminated the wording of the 1868 version that you cited, and the 1876 version (which is still the operative Article I today) replaced it. The 1876 version did not address the issue because the 1876 version eliminated it in its entirety.
“The only entity that can possibly secede from the United States is a state of the United States. The act of seceding would necessarily take place while in the status of being a member state. The act of seceding undoes the prior act of acceding.”
Well, duh.
But the issue is that the seceded state neither ENACTED nor ENFORCED a law that abridged the privileges and immunities of a citizen of the United States WITHIN THE UNITED STATES, which was the qualifier you cited in your earlier post.
But, Marbury v. Madison spiked any further discussion with its broad-handed determination that “the law is whatever we say it is.” Well, until a subsequent SCOTUS determines otherwise.
Yes, elections have consequences!
The precedential holding in the Supreme Court case of Texas v. White, 74 U.S. 700 (1869) is the law of the land until the Constitution is amended, or the Court issues a superseding opinion.That's called Common Law.
Not interested, because it, as far as I am concerned, like the Abortion "Law", is just another example of made-up Law, or Legislating from the Bench.
Each of the thirteen original colonies adopted so much of the English common law as was not inconsistent with the Constitution, and did so explicitly in their state constitution or in state statute law. The Federal government uses the common law system of jurisprudence, along with 49 of the 50 states. Having been a French colony, Lousiana retains its civil system derived from the Napoleanic code system of law.
Black's Law Dictionary, 11th Ed.
common law, n. [fr. Law French commen ley "common law”] (14c) 1. The body of law derived from judicial decisions, rather than from statutes or constitutions; caselaw . Cf. statutory law.“Historically, [the common law] is made quite differently from the Continental code. The code precedes judgments; the common law follows them. The code articulates in chapters, sections, and paragraphs the rules in accordance with which judgments are given. The common law on the other hand is inarticulate until it is expressed in a judgment. Where the code governs, it is the judge’s duty to ascertain the law from the words which the code uses. Where the common law governs, the judge, in what is now the forgotten past, decided the case in accordance with morality and custom and later judges followed his decision. They did not do so by construing the words of his judgment. They looked for the reason which had made him decide the case the way he did, the ratio decidendi as it came to be called. Thus it was the principle of the case, not the words, which went into the common law. So historically the common law is much less fettering than a code.” Patrick Devlin, The Judge 177 (1979).
...
2. The body of law based on the English legal system, as distinct from a civil-law system; the general Anglo-American system of legal concepts, together with the techniques of applying them, that form the basis of the law in jurisdictions where the system applies . Cf. civil law (1).
• American common law. (1813) 1. The body of English law that was adopted as the law of the American colonies and supplemented with local enactments and judgments. 2. The body of judge-made law that developed during and after the United States’ colonial period, esp. since independence. — Also termed Anglo-American common law.
“Every country has its common law. Ours is composed partly of the common law of England and partly of our own usages. When our ancestors emigrated from England, they took with them such of the English principles as were convenient for the situation in which they were about to place themselves. It required time and experience to ascertain how much of the English law would be suitable to this country. By degrees, as circumstances demanded, we adopted the English usages, or substituted others better suited to our wants, until at length, before the time of the Revolution, we had formed a system of our own, founded in general on the English Constitution, but not without considerable variations.” Guardians of the Poor v. Greene, 5 Binn. 554, 557 (Pa. 1813).
The United States adopted the common law system of law. Take away judicial precedent and we would have no system of law.
As you are not interest in court opinions, or the common law, I suggest you not bother to read my posts, or anything from the federal courts, or anything from any state courts outside of Louisiana.
You quote the Declaration of Independence. That was a political declaration. It was never the law of anyplace. It is not citable as law in the United States. We are a nation of laws, not philosophies.
We use the common law system. Deal with it. If you believe you would prefer the Civil law code system, have fun. If you prefer anarchy, you can always try to revive CHOP or CHAZ.
The 1876 Texas Constitution’s Article I, Bill of Rights (which I cited previously), completely eliminated the wording of the 1868 version that you cited, and the 1876 version (which is still the operative Article I today) replaced it. The 1876 version did not address the issue because the 1876 version eliminated it in its entirety.
Texas acknowledged in 1868 that secession and nullification were unlawful. That they did not explicitly so state in 1876 does not constitute a claim that secession or nullification is lawful.
“The only entity that can possibly secede from the United States is a state of the United States. The act of seceding would necessarily take place while in the status of being a member state. The act of seceding undoes the prior act of acceding.”Well, duh.
Yes, you had a duh moment and I pointed it out.
The act of seceding can only be taken by a state while it is still a state in the union. The Court held this act violated the Constitution and was null and void ab initio, and legally, it never happened, and cannot happen.
But the issue is that the seceded state neither ENACTED nor ENFORCED a law that abridged the privileges and immunities of a citizen of the United States WITHIN THE UNITED STATES, which was the qualifier you cited in your earlier post.
The attempted act of secession violated the Constitution and purported to take the State and its people out of the union and beyond the jurisdiction of the United States. It did that in the union state of Texas. As Texas never left the United States, whatever it has done since 1845 was done WITHIN THE UNITED STATES.
You can read all about it in Texas v. White 74 U.S. 700. You can disagree with it. Personally, I like the dissenting opinion of Justice Grier at 739-740,
Now whether we assume the State of Texas to be judicially in the Union (though actually out of it) or not, it will not alter the case. The contest now is between the State of Texas and her own citizens. She seeks to annul a contract with the respondents, based on the allegation that there was no authority in Texas competent to enter into an agreement during the rebellion. Having relied upon one fiction, namely, that she is a State in the Union, she now relies upon a second one, which she wishes this court to adopt, that she was not a State at all during the five years that she was in rebellion. She now sets up the plea of insanity, and asks the court to treat all her acts made during the disease as void.
But it is the majority who state the opinion of the court, and the dissent is nothing more than dicta. The majority opinion decides the case and creates precedent. Texas v. White provides the interpretation of the Constitution that is enforceable by the goverment. All you need to do is get the Constitution amended to overturn Texas v. White, or get the Supreme Court to issue a superseding opinion overturning Texas v. White. Another alternative is a rebellion.
Justice Grier's dissent did not change or nullify the majority opinion. Your dissent does not change it either. It's still there.
The defendants had argued that the Supreme Court did not have original jurisdiction in the case because Texas' current situation was not that of a state as contemplated by the Founders, but was that of a territory secured by military conquest. So the question on whether Texas was a state was certainly a matter before the court and central to the ultimate decision.
I am well aware of Texas v. White, as it was one of the cases we “dissected” in a college class I had on the Constitution.
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