Texas v. White

July 3, 2010

by William Miller

Read the comments on any discussion of secession in the blogosphere, and soon enough, you will run across someone responding with, “Texas v. White.” Just these words, nothing more. You can almost imagine their smirk of bravado at the thought they have just trumped them all. Some explain further by claiming, “The Supreme Court, in Texas v. White, ruled that secession was unconstitutional.” Rarely will anyone offer any details as to why this opinion should be taken seriously, other than the fact it was handed down by the highest court in the land.

Of all the arguments in opposition to the constitutional right of States to withdraw from the Union, the one most difficult to explain away is, “Texas v. White.” Despite its lofty pedigree, this opinion of the Supreme Court on the constitutionality of secession was not based on sound constitutional theory, and it even lacked the judicial arguments necessary for the Justices to render a reasoned opinion. Despite problems with this argument, it was, after all, an opinion rendered by the United States Supreme Court, and that fact alone provides a cloak of respectability requiring considerable effort to peel away the layers of mischief from this flimsy, yet highly acclaimed case.

This Supreme Court case is the Holy Grail for those searching for the one argument that can finally prove Lincoln was right when he waged his war against secession. And why shouldn’t the opponents of secession bestow such reverence on this case when even the Supreme Court of Alaska, in a 2006 case known as Kohlhaas v. State, based their decision on Texas v. White.

This Alaskan case resulted from a proposed ballot initiative calling for a statewide vote on whether Alaska should secede from the United States. When the lieutenant governor declined to certify the initiative, and the superior court upheld his refusal, the case was appealed to Alaska’s Supreme Court. Alaska’s Supreme Court ruled that secession was clearly unconstitutional based almost entirely on the United States Supreme Court case of Texas v. White.

The text of the Texas v. White case cited by the Alaska Supreme Court was:

The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State.The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.

So there you have it; a United States Supreme Court decision, followed many years later with the Alaska Supreme Court using Texas v. White as the basis for their opinion. How then can anyone dispute these two august bodies and their shared opinion that secession was unconstitutional?

First, the Alaska Supreme Court should be given some slack here since all they did was base their ruling on a previous U.S. Supreme Court case. They did not examine the merits of Texas v. White; they simply used that opinion as precedent for their findings. Problem was, the statements included in Texas v. White dealing with the constitutionality of secession were dicta (see below), and statements included in the opinion of a court, as dictum, are not of sufficient legal stature to allow their use as precedent.

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.

William Miller is founder of SecessionNews.com.

© 2010, Secession University. Permission to reprint this article in whole or in part is granted, provided full credit is given.